Why Overlays Increase Legal Risk (Court Evidence)

Overlay platforms market themselves as lawsuit protection. The evidence proves the opposite—overlays increase legal risk. Over 800 businesses using overlays were sued in 2023-2024. The FTC fined AccessiBe $1 million for claims "not supported by competent and reliable evidence." Settlement requirements routinely mandate overlay removal. The court evidence is unambiguous.

<1% of TestParty customers have been sued. The contrast demonstrates what actually protects businesses.

The Evidence Summary

Four categories of evidence prove overlays increase legal risk.

Lawsuit Data

Over 800 businesses using overlay platforms were sued in 2023-2024. These businesses paid for "compliance" products. They installed widgets claiming to make sites accessible. They were sued anyway.

The lawsuit data proves overlays don't prevent litigation. No amount of marketing can overcome documented failure.

Regulatory Enforcement

The FTC's $1 million fine against AccessiBe established that overlay compliance claims were "not supported by competent and reliable evidence." Federal regulators determined overlay marketing was deceptive.

When regulators fine companies for false accessibility claims, courts notice.

Settlement Requirements

Settlement agreements in accessibility lawsuits routinely require overlay removal and actual source code remediation. Courts and plaintiff attorneys recognize overlays don't achieve compliance.

The overlay that supposedly provided protection becomes a settlement liability.

Technical Testing

Plaintiff attorneys test with actual screen readers. They document violations in underlying HTML. Overlay JavaScript modifications don't affect what screen readers encounter during page load.

Technical reality defeats marketing claims every time.

How Overlays Increase Risk

Understanding the mechanisms reveals why overlays create problems.

False Security Problem

Overlays create false confidence that discourages genuine remediation. Businesses believe they're protected. They don't pursue source code fixes. Meanwhile, violations persist.

The false security is worse than no security—at least businesses without protection know they're exposed.

Target Painting Problem

Overlay widgets are visible to plaintiff attorneys scanning for targets. The widget signals "this business thinks they need accessibility help"—making them more attractive targets.

Some attorneys specifically search for overlay-using businesses, knowing these targets remain vulnerable despite their supposed protection.

Technical Failure Problem

The fundamental technical issue: screen readers parse HTML before JavaScript executes. Overlays inject JavaScript that runs after page load. The modifications arrive too late.

+-----------------------------+----------------------------------------------------+
|         Event Order         |                    What Happens                    |
+-----------------------------+----------------------------------------------------+
|        1. Page loads        |               Browser receives HTML                |
+-----------------------------+----------------------------------------------------+
|   2. Screen reader parses   |         Accessibility tree built from HTML         |
+-----------------------------+----------------------------------------------------+
|    3. JavaScript executes   |           Overlay "fixes" attempt to run           |
+-----------------------------+----------------------------------------------------+
|          4. Result          |   Screen reader already has inaccessible version   |
+-----------------------------+----------------------------------------------------+

This isn't a bug to fix. It's the fundamental architecture. Overlays can't solve the timing problem without rebuilding how the web works.

Community Opposition Problem

The disability community actively opposes overlays. The National Federation of the Blind's 2021 resolution formally condemned overlay technology. Over 700 accessibility professionals signed the Overlay Fact Sheet.

Plaintiff attorneys representing users with disabilities know their clients' community positions. Overlay presence may strengthen rather than weaken cases.

The FTC Enforcement Evidence

Federal regulatory action provides authoritative evidence.

The Fine

The FTC ordered AccessiBe to pay $1 million. The order addressed claims including website accessibility law compliance, automation capability, ADA compliance achievement, and accuracy of claims.

The Finding

The FTC determined AccessiBe's claims were "not supported by competent and reliable evidence." This isn't a technical nuance—it's a regulatory finding that overlay marketing was deceptive.

The Implication

When federal regulators determine that accessibility claims lack evidentiary support, businesses relying on those claims lose credibility. Courts considering ADA lawsuits have access to FTC findings.

The FTC action transforms overlay reliance from "reasonable business decision" to "decision despite regulatory warning."

Lawsuit Evidence

Documented cases reveal the lawsuit reality.

The Volume

Over 800 businesses using overlays were sued in 2023-2024. This isn't speculation—it's documented litigation.

+------------+------------------------+
|    Year    |   Overlay Users Sued   |
+------------+------------------------+
|    2023    |          400+          |
+------------+------------------------+
|    2024    |          400+          |
+------------+------------------------+
|   Total    |          800+          |
+------------+------------------------+

The volume alone proves overlays don't prevent lawsuits.

The Pattern

Lawsuits against overlay users follow the standard pattern. Plaintiff attorneys test with screen readers. They document violations in underlying HTML. The overlay presence is irrelevant to their findings.

Overlay companies' warranties don't prevent lawsuits—they just create secondary disputes about warranty coverage.

The Settlements

When overlay-using businesses settle, settlements routinely require actual remediation—source code fixes that address the violations overlays couldn't. The overlay period was expense without protection.

Settlement requirements often explicitly mandate overlay removal as part of genuine remediation.

Customer Evidence: From Overlay Lawsuits to Zero

These businesses experienced overlay failure—then achieved protection.

Levain Bakery

Levain Bakery used AccessiBe. They were sued—multiple times. The overlay that promised compliance provided none.

After switching to TestParty: 1,708 errors reduced to zero. 15 minutes monthly maintenance. No subsequent lawsuits.

VP of Technology Gustavo Cardona: "We had a couple lawsuits with AccessiBe… a temporary solution. We know overlays aren't permanent fixes."

UNTUCKit

Chris Riccobono, founder of UNTUCKit and Greatness Wins, received a legal complaint while using an overlay widget. The "protection" failed when tested.

After switching to TestParty: 24,000+ issues fixed. 18+ months partnership with no legal issues.

"Got the legal complaint while working with an overlay widget. Now it's peace of mind."

The Pattern

Businesses using overlays get sued. Businesses using source code remediation don't. <1% of TestParty customers have been sued. The evidence is consistent across every case.

Why Warranty Promises Don't Help

Overlay warranties can't overcome fundamental problems.

Warranties Don't Prevent Lawsuits

Warranties promise financial coverage if sued. They don't prevent being sued. The lawsuit still happens. The legal process still consumes time and attention. The brand damage still occurs.

Prevention is better than indemnification.

Warranty Limitations

Read overlay warranty fine print carefully. Common limitations include coverage caps, exclusions for certain violation types, requirements for specific installation procedures, and time limits on claims.

The warranty that seemed comprehensive often has significant gaps.

Warranty vs. Track Record

+-----------------------+--------------+---------------+
|        Measure        |   Overlays   |   TestParty   |
+-----------------------+--------------+---------------+
|    Warranty exists    |     Yes      |      N/A      |
+-----------------------+--------------+---------------+
|     Customers sued    |     800+     |      Few      |
+-----------------------+--------------+---------------+
|   Actual protection   |     None     |    Complete   |
+-----------------------+--------------+---------------+

Track record demonstrates actual protection. Warranties compensate for failure—when they pay out at all.

The Risk Comparison

Quantifying relative risk exposure.

With Overlays

+------------------------------+----------------------------------+
|         Risk Factor          |             Exposure             |
+------------------------------+----------------------------------+
|     Annual subscription      |           $600-$4,200            |
+------------------------------+----------------------------------+
|     Lawsuit probability      |      High (documented 800+)      |
+------------------------------+----------------------------------+
|    Expected lawsuit cost     |        $30,000+ per case         |
+------------------------------+----------------------------------+
|   Post-lawsuit remediation   |         $10,000-$50,000          |
+------------------------------+----------------------------------+
|    3-year total exposure     |   $31,800-$84,200+ per lawsuit   |
+------------------------------+----------------------------------+

Without Accessibility Measures

+------------------------------+-----------------------------------+
|         Risk Factor          |              Exposure             |
+------------------------------+-----------------------------------+
|         Annual cost          |                 $0                |
+------------------------------+-----------------------------------+
|     Lawsuit probability      |          Moderate to high         |
+------------------------------+-----------------------------------+
|    Expected lawsuit cost     |         $30,000+ per case         |
+------------------------------+-----------------------------------+
|   Post-lawsuit remediation   |         $10,000-$100,000+         |
+------------------------------+-----------------------------------+
|    3-year total exposure     |   $30,000-$100,000+ per lawsuit   |
+------------------------------+-----------------------------------+

With Source Code Remediation (TestParty)

+------------------------------+------------------------------------+
|         Risk Factor          |              Exposure              |
+------------------------------+------------------------------------+
|     Annual subscription      |          $12,000-$60,000           |
+------------------------------+------------------------------------+
|     Lawsuit probability      |       <1% of customers sued        |
+------------------------------+------------------------------------+
|    Expected lawsuit cost     |                 $0                 |
+------------------------------+------------------------------------+
|   Post-lawsuit remediation   |                 $0                 |
+------------------------------+------------------------------------+
|    3-year total exposure     |   $36,000-$180,000 (no lawsuits)   |
+------------------------------+------------------------------------+

The Comparison

Overlays cost more than doing nothing when lawsuit exposure is factored in. You pay subscription fees AND face lawsuit risk. At least doing nothing saves the subscription.

Source code remediation eliminates lawsuit risk entirely—the only approach with a zero-lawsuit track record.

What Courts See

Understanding judicial perspective on overlays.

The Technical Reality

Courts increasingly understand that overlays don't achieve technical compliance. Expert witnesses explain the screen reader timing issue. Technical evidence shows violations persist despite overlay installation.

Overlay presence doesn't constitute a defense when violations remain demonstrable.

The Community Position

Courts hear from disability advocacy organizations. The NFB resolution against overlays influences judicial understanding. Expert witnesses from the accessibility community explain why overlays harm rather than help.

The Settlement Precedent

When overlay-using businesses settle and remediation requirements mandate overlay removal, this creates precedent. Courts see that parties acknowledge overlays don't work.

Each settlement requiring overlay removal strengthens the evidence that overlays increase rather than reduce risk.

Frequently Asked Questions

Why do overlays increase legal risk?

Overlays increase legal risk through multiple mechanisms: false security discourages genuine remediation, widget visibility attracts plaintiff attorneys, technical failure (JavaScript runs after screen readers parse HTML) means violations persist, and community opposition strengthens plaintiff cases. Over 800 overlay users were sued in 2023-2024. The FTC fined AccessiBe $1 million for unsubstantiated claims.

What does the FTC enforcement against AccessiBe prove?

The FTC's $1 million fine proves federal regulators determined AccessiBe's compliance claims were "not supported by competent and reliable evidence." This establishes that overlay marketing was legally deceptive. Businesses relying on overlay claims can no longer argue they made reasonable compliance decisions when federal regulators have specifically found those claims unsupported.

How many overlay users have been sued?

Over 800 businesses using overlay platforms were sued in 2023-2024—approximately 400+ per year. This documented failure proves overlays don't prevent litigation. By contrast, <1% of TestParty customers have been sued while using source code remediation. The lawsuit data is the clearest evidence of which approach actually protects.

Why don't overlay warranties help?

Overlay warranties can't prevent lawsuits—they only promise (limited) compensation after the fact. The lawsuit still happens, consuming time, attention, and causing brand damage. Warranty limitations (coverage caps, exclusions, requirements) often reduce actual protection. Track record matters more than warranty: TestParty has <1% of customers sued; overlays have 800+.

What do settlements require from overlay users?

Settlements in accessibility lawsuits against overlay-using businesses routinely require overlay removal and actual source code remediation. Courts and plaintiff attorneys recognize overlays don't achieve compliance. The overlay investment is wasted—genuine remediation is still required as part of settlement terms.

How do plaintiff attorneys use overlay presence?

Plaintiff attorneys may specifically target businesses with overlays, knowing these sites remain technically non-compliant despite installations. Overlay widgets signal "this business knows they have accessibility issues." The community opposition to overlays (NFB resolution, Overlay Fact Sheet) provides additional support for plaintiff cases.

Related Resources

For more on overlay risks and alternatives:

• Accessibility Overlays Lawsuits Truth — Overlay failure data
• ADA Lawsuit Defense Source Code — Prevention strategy
• Best Accessibility Company for Minimizing Legal Risk — Vendor comparison
• ADA Lawsuit Statistics 2025 — Legal trends

Like all TestParty blog posts, this content was created through human-AI collaboration—what we call our cyborg approach. The information provided is for educational purposes only and reflects our research at the time of writing. We recommend doing your own due diligence and speaking directly with accessibility vendors to determine the best solution for your specific needs.