Posts from: May 2016

Website Accessibility

Most businesses, including banks and financial institutions, have websites.  It would be fair to say that today a business without a website is an anachronism.  Now, most businesses must face a new regulatory framework regarding website accessibility, something that has been on the horizon for years but as of late is coming to forefront.  Not only must websites be easily navigable, simple to operate and robust — for obvious business reasons — now they need to be accessible to people with disabilities.  And, the issues raised here can also be considered in the context of employee use of websites and computer access generally.

What is Web Accessibility?

People who use the web have a growing variety of characteristics. Any business with a website cannot assume that all users are accessing content using the same web browser or operating system or using a typical smartphone, common computer, or traditional monitor, keyboard or mouse. The following circumstances must now be considered:

  • Individuals who are blind may use audible output such as screen readers that read web content using synthesized speech or refreshable Braille devices.
  • Individuals with learning disabilities may use audible output, along with software that highlights words or phrases that are read aloud using synthesized speech.
  • Individuals with physical disabilities that affect the use of their hands may be unable to use a mouse, and instead may rely on the use of assistive technologies such as speech recognition, head pointers, mouth sticks, or eye-gaze tracking systems.
  • Individuals who are deaf or hard of hearing and unable to access audio content may need video output that is captioned or audio that is transcribed.

The U.S. Department of Justice (“DOJ”) recently presented its viewpoint in “Statements of Interest” filed in June 2015 in two lawsuits originally brought by the National Association of the Deaf (NAD) against two universities about the alleged inaccessibility of videos on their websites. DOJ filed Statements of Interest in these lawsuits brought by the NAD against Harvard and MIT under Title III of the ADA and Section 504 of the Rehabilitation Act alleging that they had failed to caption the thousands of videos posted on their websites.  Both of those cases are pending in court, and DOJ stated that a proposed regulation is scheduled for publication in Spring 2016.  There is little doubt that there will be more website accessibility cases across the country.

In the meantime, though, DOJ continues to pressure businesses into making their websites accessible by threatening enforcement actions.  In light of these developments, it may be wise to assume that the obligation to make websites accessible exists now — even prior to the publication of new regulations.

Making Your Website Accessible.

The international website standards organization, World Wide Web Consortium (also known as WC3), has published version 2.0 of the Web Content Accessibility Guidelines, commonly known as WCAG 2.0 AA.  WCAG 2.0 AA has been endorsed by DOJ and federal courts.  It would be wise to review these standards and consult with a web content consultant familiar with these standards and website accessibility generally. As a starting point, there are also free online tools that will check web pages for accessibility.

The key takeaway for now is that the law is far from fully developed in this new arena, but in order to stay ahead of the curve and avoid potential costly litigation and, more importantly, to adequately serve customers with disabilities, consider web accessibility issues now.

If you have any questions in this area, please contact:

Jonathan M. Weis at: or 312-368-0100.

Borrower May Still Face Foreclosure Even After Making Monthly Payments Following Default

If a borrower has a mortgage, the lender sends a notice of default, the borrower nonetheless makes monthly payments for more than two years thereafter that the lender accepts, can the lender still sue to foreclose?  The issue is whether the lender waived its right to foreclose by accepting the monthly payments.  A recent case answers that question.  The answer is “no”.

In July 2004, Timothy Martin borrowed $140,000 to purchase a residence.  The note was secured by a deed of trust.  Wells Fargo Bank eventually acquired the note and deed of trust.

The deed of trust contained the lender’s right to accelerate the debt upon default and to foreclose, as well as the following non-waiver clause:

“12.  Borrower Not Released;  Forbearance By Lender Not a Waiver.  Extension of time for payment or modification or amortization of the sums secured by this [DOT] granted by Lender to Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any Successors in Interest of Borrower…Any forbearance by Lender in exercising any right or remedy including, without limitation, Lender’s acceptance of payment from third person, entities or Successors in Interest of Borrower or in amounts less than the amount then due, shall not be a waiver of or preclude the exercise of any right or remedy.”

In December of 2009 Martin was late with his monthly payment.  But thereafter he made monthly payments through June of 2011.

To his surprise, Wells Fargo returned his May and June 2011 mortgage payments and notified him the property would be sold at a foreclosure sale.  The property was sold for $168,000 at the foreclosure sale held on December 4, 2012.

Martin sued Wells Fargo contending that Wells Fargo waived its right to foreclose by accepting mortgage payments for sixteen months after his initial default and not foreclosing until almost three years after declaring a default.  The court did not see it this way.

The reason the court ruled in favor of Wells Fargo was the non-waiver clause.  It allowed Wells Fargo to accept partial payment of Martin’s debt after his default without waiving its right to foreclose.  A waiver would have occurred if Wells Fargo had declared his entire debt due and payable following his default and thereafter had accepted his monthly payments.  But that did not happen.  Wells Fargo had never declared his entire debt due and payable.

The point is this:  if a borrower is in default, no further payment should be made to the lender unless the lender waives the default in writing.  Otherwise, anytime thereafter, the lender can call for payment of the entire debt and, if not paid in full, can commence foreclosure.

If you have any questions in this area, please contact:

Michael L. Weissman at: or 312-368-0100.

The Truth About Trademark Goods and Services

Many people think if you own a trademark registration with the USPTO, then you can claim trademark rights for that mark in connection with all goods and services under the sun – that the owner of a trademark owns the right to use it however they want.   Conversely, some sophisticated businesspeople believe that they cannot use a particular trademark simply because someone else is using a same or similar trademark.   While that is sometimes true, it is only true if such use would cause confusion amongst consumers in the marketplace.

A somewhat entertaining recent case illustrates this concept.  The owner of a company that sells tackle and other fishing gear and supplies called Land O’Lakes recently sued the well-known dairy company of the same name for trademark infringement alleging that the use of Land O’ Lakes on butter and other products was causing consumer confusion with their use of the trademark in connection with fishing tackle and related products.   The Northern District of Illinois rejected that notion, hook line and sinker (pun intended), stating that it was highly unlikely that anyone would confuse a relatively small tackle company with the large dairy company. See, James G. Hugunin, Land O’ Lakes Outdoors, Inc. et al. v. Land O’Lakes, Inc., Seventh Cir. No. 15-2815, issued March 1, 2016.

While it is not surprising that the court did not find a likelihood of confusion between butter and fishing tackle, it does bring to the light a couple common trademark misconceptions:  (1) I own it for all things and (2) I can successfully stop others from using that trademark for any other good or service, no matter how unrelated.

Clients ask all the time – If I have this “trademarked” (and usually they mean the moment they apply for a trademark registration) then other people cannot use it, right?   Nothing could be farther from the truth.   While unfortunate, the law cannot prevent anyone from doing anything.   At best, though, if you own strong rights in your trademark in your area of goods and services, then if someone uses a similar mark for similar goods or services, you may be successful at stopping them (through an injunction) or otherwise recovering damages (money) from them. A party that has taken the time to protect and use their trademarks correctly is much better suited to enforce their rights against others.

If you have any questions in this area, please contact:

Natalie A. Remein at: or 312-368-0100.


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