On June 25, 2003, blind individuals unable to use ATMs operated by the defendants filed a complaint in the U.S. District Court for the District of Massachusetts, seeking declaratory, injunctive, and monetary relif.
On February 22, 2005, in an unpublished opinion, the court denied the defendants' Motion for Judgment on the Pleadings, holding that the fact that Department of Justice regulations did not expressly require installation of voice guidance technology did not defeat plaintiffs' claim. Commonwealth of Massachusetts v. E*Trade Access, Inc., No. 03-11206, 2005 WL 2511059 (D. Mass. Feb. 22, 2005).
On February 21, 2006, the court considered both partes' motions for partial summary judgment. Commonwealth of Massachusetts v. E*Trade Access, Inc., 464 F.Supp.2d 52 (D. Mass. 2006). The court denied the plaintiffs' motion for summary judgment on Count V, which alleged a violation of the ADA's New Facilities Mandate, 42 U.S.C. § 12183(a)(1), because the plaintiffs only showed 12 ATMs were inaccessible; thus a genuine issue of fact existed as to the thousands of other machines. The court also denied the defendant's motion for summary judgment on Count V because, contrary to the defendants' assertion, this provision applied to more than just buildings and architectural structures. Commonwealth of Massachusetts v. E*Trade Access, Inc., No. 03-11206, 2005 WL 2511059 (D. Mass. Feb. 22, 2005).The court denied the defendants' motion for summary judgment on Counts I and II, finding an issue of material fact.
As to the defendant's motion for summary judgment on Count III, the court granted the plaintiffs 90 days to identify an auxiliary aid or service list. If they could not, it would grant the defendants' motion. Similarly, on Count IV, the court gave the plaintiff 90 days to specify how communications barriers could be removed. If they could not, the court would grant summary judgment to the defendants on this count.
The parties entered a settlement agreement on June 21, 2007, which required one of the defendants to modify its ATM machines, making them all accessible within a year, with a few exceptions for certain machines. Another defendant agreed to install only voice guidance technology, and to offer merchants who owned or leased ATMs an upgrade at no cost and report to class counsel. Cardtronics also agreed to pay $900,000 in attorneys' fees to the NFB and make gift of 100,000 to Mass Consumer Aid Fund. This agreement superceded previous agreements between E*Trade and the parties because Cardtronics had purchased E*Trade's ATMs. The court approved the settlement and issued final judgment on December 4, 2007.
On April 30, 2010, the parties filed a joint motion for approval of a remediation plan which contained more precise requirements and deadlines. One of the defendants admitted it was not able to meet the targets in the settlement agreement. There were numerous problems with the voice technology. The new plan extended the deadlines and required payment of $60,000 to the National Federation of the Blind for testing the machines and $145,000 for its failure to comply with the settlement. The proposed remediation plan would last 8 years from the date of approval.
On July 29, 2011, the plaintiffs filed a motion for contempt, claiming the defendants had failed to meet all the requirements of the remediation plan. The Court granted the motion in part, finding that the defendants knew that they were subject to the Remediation Plan, which provided clear instructions for compliance, and they failed to comply fully with most of its requirements on or before the self-imposed deadlines, and that they had not "substantially"
complied with the Remediation Plan or demonstrated that they have
made all reasonable efforts to do so. The Court ordered the defendants to acheive full compliance on or before March 15, 2012, including: a) the installation of enhanced scripts to enable voice guidance, tactilely discernable controls and appropriate signage on all Cardtronic-owned ATMs not located in 7-Eleven stores, and b) the inspection of all such ATMs to ensure that the newly installed features are in working condition.
On August 17, 2012, plaintiffs filed a second motion for contempt, claiming that although four months had elapsed since the court's deadline for complianc, the defendants still had not fully complied with the requirements of the remediation plan, and, moreover, were in violation of the plan's prohibition against entering into new contracts with merchants whose ATMs it admits are not voice-guided and placing into service newly-acquired ATMs hat it has not demonstrated are voice-guided. The motion is pending. - 08/29/2012