Design Domination Podcast Episode #189: UserWay Class-action Lawsuit

Music: https://www.bensound.com

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I have more website accessibility overlays news for you once again! Can you believe it?

Stick around to find out how this affects you as a web designer or developer.

What Is a Website Overlay?

In case you haven’t heard my numerous rants about overlays and you’re not familiar with what an overlay is, it is what some call a “widget” that works at the browser level to purportedly make a website more accessible. You’ve probably seen a circular icon in the bottom corner of a web page. If you click it, a menu opens up with all these options that look so wonderful and are really unnecessary if the site is actually accessible. That’s an overlay.

Overlays are typically promoted as an easy solution for accessibility by installing a line of javascript code.

Should You Use an Overlay on Your Website?

There has been a lot of divide in the accessibility space when it comes to overlays.

Many accessibility specialists, including myself, have spoken out against them, most notably in the Overlay Fact Sheet, which has been signed by almost 950 accessibility advocates and is just one of many resources that states:

No overlay product on the market can cause a website to become fully compliant with any existing accessibility standard and therefore cannot eliminate legal risk.

There’s also been a lot of drama.

Several overlay companies have tried to silence overlay opponents in the past, some even taking legal action against those individuals.

One example is FACIL’iti, a French overlay company. FACIL’iti sued Julie Moynat, a French web developer, for defamation and also went after Koena, a French digital accessibility firm, after seeing their tweets about the overlay.

Website Accessibility Overlay Lawsuits

So it’s “interesting” (I’ll leave it at that) to see that the tables have started turning for some overlay companies.

I recently talked about the FTC fining accessiBe $1 million for deceptive claims. Check out that episode for the details on that case.

Bloomsybox LLC versus Userway, Inc.; John Doe 1–5

But yet another website overlay company is in hot water—UserWay. This particular lawsuit is a class-action suit that was filed in July 2024.

I don’t know why I am only now just finding out about this!

About Bloomsybox

OK, so the plaintiff is Bloomsybox.com LLC. They are based out of Miami, Florida. They sell and deliver flowers throughout 15 cities in the United States and in five countries.

About Userway

The defendant is UserWay.

You may also remember that UserWay was bought out by Level Access in 2023. I talked about that too.

Level Access is a reputable accessibility provider, and they used to speak out against overlays. So it was shocking, to say the least, when they bought an overlay company.

UserWay offers three plans:

• One at $490 per year for up to 100,000 page views per month,
• One at $1,490 per year for up to 1 million page views per month,
• Custom pricing for larger websites.

Their website also states that all plans include their “Attorney-Led Litigation Support Program.” I don’t know if that was on there at the time of the lawsuit. But it’s there now.

UserWay claims their overlay is in use on 247,000 websites.

Summary

OK, so here’s what happened.

Bloomsybox decided to update their website in 2023. As part of that, they researched accessibility providers and decided on the UserWay overlay, because it was a one-stop solution, and they promised compliance and avoidance of lawsuits, even legal support ($1 million of coverage) in case of a lawsuit.

After only six months of having the overlay installed on their website, Bloomsybox was served with paperwork about a class-action lawsuit.

Bloomsybox approached UserWay about this, and they said, well, you are on a monthly subscription and you need to be on the annual one to get the legal support.

That same day, Bloomsybox went ahead and paid for the annual plan.

UserWay then opened up a ticket about the matter and then sent them their Legal Action Guide, which consisted of information about the ADA, a summary of the claims of the lawsuit and that the overlay made the site compliant.

It provided no helpful legal information to Bloomsybox at all.

As if that wasn’t a punch in the face, UserWay closed the ticket four days later, leaving Bloomsybox hung out to dry.

Bloomsybox then took it upon themselves to get an attorney, costing them $4,000. Honestly, I am surprised it didn’t cost them more.

They then settled a few months later, with a monetary payment.

Bloomsyboxis bring this lawsuit as a class-action lawsuit, so that it applies to other customers of the product.

Deceptive Overlay Marketing Claims

I’m not a lawyer, so, you know, this is just stuff that I’m reading and my interpretation of it.

One premise of this case is deceptive marketing claims.

Bloomsybox thought the overlay would make their website accessible and protect them from lawsuits. Why did they think this? Well, the complaint (580 kb PDF) states in clause 8:

8. Userway advertises that its products will lower and even eliminate, the possibility that customers will be sued for ADA violations. Userway’s claims in this regard are false. In fact, businesses that use Userway’s products are more likely to be the targets of lawsuits. …

UserWay advertised the overlay as a quick and cost-effective solution. Just install a single line of code and the overlay will fix the accessibility issues on the website to conform with WCAG 2.1 AA from day 1 and continue to monitor the website thereafter as well.

Clause 28b mentions an FAQ, “Does UserWay provide full ADA Compliance?” The answer was “Yes. UserWay’s AI-Powered Accessibility Widget provides full ADA and WCAG 2.1 compliance…”

Apparently, that answer was edited in December 2023 to say, “Yes. UserWay’s solutions ensure ADA, WCAG 2.1 and 2.2 compliance through our AI-Powered Accessibility Widget.” So they omitted the word “full” and addd in 2.2 conformance.

WCAG 2.2 came out in October 2023, by the way.

Side note here: Words matter. Compliance and conformance are two different things. Be careful what you are promising! I covered that in another episode. Regardless, UserWay was promising both.

Clause 34 of the complaint mentions the Overlay Fact Sheet, saying:

The Fact Sheet concludes that overlay products like Userway’s do not help visually impaired people access the web, but instead actually hinder their access.

False Claims of Legal Support

The complaint also talks about UserWay’s false claims surrounding legal support in case of a lawsuit.

Clause 9 states:

9. As more fully described below, Userway makes specific and material claims to induce businesses to purchase its widget as an effective alternative to the work required to actually be ADA compliant. Among these inducements is the promise to provide legal support if the business ever faces legal claims that its website does not comply with the ADA. Indeed, Userway makes the illusory claim that paid subscriptions are backed by a “monetary pledge.” Userway’s “pledge” is specifically intended to mislead customers into believing a) that Userway will reimburse customers up to $1,000,000 in the event of a website accessibility lawsuit; and b) that any customer who has installed Userway’s widget is very unlikely to be named as a defendant in such a lawsuit. In truth, Userway will only honor its “Pledge” in the event that a case is litigated to a judgment. Of course, as Userway is keenly aware, website accessibility cases are never litigated to judgment. Attorneys’ fees, settlement payments, and other costs are not covered.

The complaint also mentions that Userway advertises that “[t]he easiest way to avoid lawsuits is to automate your code’s remediation with UserWay AI-powered solutions.”

They go on to talk about how the FAQs even included this response to the question

“Does UserWay provide assistance with demand letters or lawsuits?”

“Yes. Luckily, you won’t need it when running UserWay’s AIPowered Accessibility Widget.”

That’s so brazen!

They then provide as evidence that between June 1, 2023 and June 1, 2024, more than 1,000 website accessibility lawsuits were filed in the Southern District of New York alone and that many of these cases involved websites using UserWay.

Instead of providing the legal protection, UserWay tries to get customers to pay more money, and for website remediation.

Causes of Action

As a result of all of what happened, Bloomsybox is going after UserWay on four legal points.

Breach of Contract

The first is breach of contract, because customers must agree to UserWay’s terms of services and that it is a binding contract. So this goes back to what UserWay was promising and didn’t deliver on.

Violation of the Delaware Consumer Fraud Act

Bloomsybox alleges that UserWay engaged in deceptive practices. Because UserWay is headquartered in Delaware, the complaint talks about the violation of the Delaware Consumer Fraud Act (or DCFA).

Violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301

The third involves violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301.

Bloomsybox alleges that UserWay breached its written warranty. They implied the overlay would do certain things, and it did not.

Negligent Misrepresentation

The fourth cause of action is negligent misrepresentation.

Motion to Dismiss?

In looking up the complaint on PacerMonitor.com (which I know nothing about, since I am not a lawyer and don’t regularly use a website to look up case documents), it appears that UserWay recently filed a motion to dismiss in February. But I can’t find this information anywhere else.

What This Means for Web Designers and Developers

OK, now I mentioned earlier to stay tuned to find out what this (and the accessiBe case) mean for web designers and developers, especially if clients come to you and ask about making their site accessible or if their website already uses an overlay.

But even if they don’t, as their web designer or developer, you need to be armed with accurate information to provide your clients as their trusted provider. You need to give them the information they need to make an informed decision:

1. Overlays alone do not make a site accessible.
2. Overlays do not protect against lawsuits.

Maybe you have already told them using an overlay is OK and maybe now you’re rethinking that and you’re not sure how to approach this with them, because you don’t want to look bad. That is certainly understandable.

But if you don’t say something and they don’t have all the information, then you’re putting their business at risk—and your reputation as well. Give them that information and then it’s up to them to make an informed decision.

Another lesson to be learned here is to be very careful about what you promise when you build a website—accessible or not.

Make it clear what clients are getting and what you are delivering—whether that’s an accessible website or not, If it’s an accessible website, does it conform to WCAG 2.1 AA or 2.2 AA or whatever?

But be sure to watch out for promising “compliance” as well.