How Overlays Are Used Against You in Court

The Plaintiff's Playbook

Plaintiffs' attorneys have developed a specific strategy for businesses using accessibility overlays. Understanding this strategy is critical because the overlay does not protect you — it provides additional ammunition for the opposing side.

Here is how the argument is constructed in actual ADA complaints:

Why Overlays Increase Settlement Amounts

In ADA web accessibility litigation, settlement negotiations hinge on two factors: the severity of the violations and the defendant's apparent willingness to remediate. An overlay undermines the second factor in several ways:

• It removes the "we didn't know" defense. The overlay purchase receipt is evidence you knew accessibility was required. You chose the cheapest option rather than genuine remediation.
• It demonstrates pattern behavior. If you chose a quick fix once, plaintiffs argue you will do it again. This supports demands for ongoing monitoring as part of the settlement.
• It undermines good faith. Courts consider "good faith effort" when determining remedies. An overlay — which the industry, disability community, and federal government have publicly opposed — is difficult to frame as good faith.
• The FTC ruling is now citable. As of January 2025, plaintiffs can directly cite a federal agency's determination that overlay compliance claims are deceptive. This is a material change in the litigation landscape.

What Courts Actually Want to See

When judges and mediators evaluate ADA web accessibility cases, they look for evidence of substantive compliance effort. The documentation that matters:

1. Professional WCAG audit — documented assessment by a qualified firm against a specific standard (WCAG 2.2 AA)
2. Source-level remediation — evidence that violations were fixed in the actual code, not papered over with JavaScript
3. Before/after documentation — visual and technical evidence of the changes made
4. Compliance certificate — dated attestation of the standard met, issued by the remediating firm
5. Ongoing monitoring plan — evidence that compliance is being maintained, not a one-time event

An overlay subscription receipt is none of these things.

The Bottom Line

Overlays were marketed as lawsuit protection. The data shows they have the opposite effect: they increase legal exposure, raise settlement amounts, and provide plaintiffs with additional arguments. The FTC ruling has made this dynamic even more pronounced.

The businesses that fare best in ADA web accessibility litigation are those with documented source-level remediation, professional audit reports, and compliance certificates. These are the artifacts of real compliance work — and they are what Compliapoint delivers.