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ICBA Negotiates Settlement with Plaintiff Group on Alleged ADA Liability

Numerous community banks that had received demand letters from the advocacy group Access Now alleging that their websites and mobile apps are inaccessible in violation of Title III of the Americans With Disabilities Act (the “ADA”) have now also received letters that those claims have been resolved under a settlement with the Independent Community Bankers of America (ICBA).

The settlement releases ICBA members and non-member banks with assets of $50 billion or less from all ADA claims concerning their electronic banking services, including online banking, mobile banking, ATM services, and telephone banking.  The settlement resolves numerous claims that Access Now had made through its counsel, Carlson Lynch Sweet Kilpela and KamberLaw LLC.  ICBA announced the news of the settlement directly to its members in November.

The settlement preceded an announcement by the U.S. Department of Justice (“DOJ”) that it is withdrawing all rulemaking concerning website accessibility under the ADA.  The DOJ first announced its intent to promulgate such regulations in 2010.  Its announcement leaves uncertain the issue of whether, and when, there will be a government standard for website accessibility.

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Courts Continue to Weigh in on the Issue of Website Accessibility

Courts across the country continue to weigh in on the issue of website accessibility. Earlier this month, the U.S. District Court for the District of New Hampshire denied a Motion to Dismiss filed by online food delivery servicer Blue Apron. In denying the motion, the court found that Blue Apron’s website is a place of public accommodation – despite the fact that Blue Apron operates only online and has no traditional brick and mortar locations. Access Now, Inc. v. Blue Apron, LLC, Case No. 17-cv-00116, Dkt. No. 46 (D. N.H. Nov. 8, 2017). In so finding, the court relied on binding precedent in the First Circuit, and noted that other Courts of Appeals, namely the Third, Fifth, Sixth and Ninth Circuits, have held that in order to be considered a “public accommodation,” an online business must have a nexus to an actual, physical space. Id. at pp. 9-10. This decision highlights that the issue of website accessibility, especially as it applies to online only businesses, remains a contested issue.

The New Hampshire federal court also found that despite the lack of regulations from the Department of Justice (“DOJ”), “Blue Apron must still comply with Title III’s more general prohibition on disability-based discrimination….” Id. at pp. 14-15. The court noted that there might have been a due process violation if plaintiffs had “attempt[ed] to hold Blue Apron liable for failure to comply with independent accessibility standards not promulgated by the DOJ, such as the WCAG 2.0 AA standards….” Id. at p. 20. This was not a concern, however, because plaintiffs relied on Title III of the ADA as governing potential liability and only invoked compliance with WCAG 2.0 AA standards as a “sufficient” but not “necessary” condition. Id. at p. 21.

The Court also took up the issue of primary jurisdiction and held that because “the potential for delay” was “great,” it would not invoke the primary jurisdiction doctrine and dismiss or stay the matter until DOJ issues regulations concerning website accessibility. This holding is in direct contrast to the holding in Robles v. Dominos Pizza, LLC, where the United States District Court for the Northern District of California held that it would violate Domino’s due process rights to find that its website violates the ADA because the DOJ still has not promulgated regulations defining website accessibility. See Robles v. Dominos Pizza LLC, No. 16-cv-06599, Dkt. No. 42 (N.D. Cal. Mar. 20, 2017). Further analysis regarding the Robles case can be found in this blog post.

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Bank Website ADA Litigation

Although the frequency of bank clients receiving demand letters related to violations of the Americans with Disabilities Act (“ADA”)  based on website (in)accessibility seems to be declining, Bryan Cave lawyers around the country continue to be actively involved in defending such claims in other industries.  In addition to working with the Georgia Bankers Association and the California Bankers Association, Bryan Cave has published updates through a number of blogs that may be of value to our banking clients.

In April, Start Up Bryan Cave, our blog focusing on start ups of all kinds, published “Best Practices for your Corporate Website: How to Avoid an ADA Claim.”

Making your company’s website ADA compliant now, before your company is a target of a lawsuit or a demand letter, makes good business sense.  It will open your company up to more potential customers, limit your liability, position you to deal effectively with the regulatory challenges of growth, improve your company’s reputation in the marketplace and is simply the right thing to do.  Also, being proactive in establishing compliance protocols for your growing company will cause you to stand out among your competitors, make you more attractive to potential investors and partners, and can greatly mitigate any regulatory actions if a regulatory agency decides to audit your business.

In June, BC Retail Law, our blog focusing on clients in the retail sector, published “Retailer Loses ADA Website Accessibility Trial” about the first ADA accessibility litigation to go to trial.  The Court held that Winn-Dixie violated Title III of the ADA because its website was inaccessible to the visually impaired plaintiff.

[D]espite the fact that Winn-Dixie does not conduct sales through its website, the Court found that the website was “heavily integrated” with the physical store locations because customers can use the website to access digital coupons, find store locations, and refill prescriptions through the website.

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Bank Website ADA Litigation Update

Court Dismisses Website Accessibility Case as Violating Due Process, Since DOJ Still Has Not Issued Regulations

Recent court decisions from California and Florida may provide ammunition to retailers battling claims that their websites and mobile applications are inaccessible in violation of Title III of the Americans With Disabilities Act (the “ADA”). As we reported in a previous blog post, banks and other businesses have faced a wave of such demand letters and lawsuits.  Most of these claims settled quickly and confidentially.

However, a California district court recently granted Dominos Pizza’s motion to dismiss under the primary jurisdiction doctrine, which allows courts to stay or dismiss lawsuits pending the resolution of an issue by a government agency. In Robles v. Dominos Pizza LLC, U.S. Dist. Ct. North Dist. Cal. Case No. CV 16-06599 SJO, the court held it would violate Domino’s due process rights to hold that its website violates the ADA, because the Department of Justice still has not promulgated regulations defining website accessibility – despite issuing a notice of proposed rulemaking back in 2010.

The court stated that the DOJ’s application of an industry standard, the Website Content Accessibility Guidelines 2.0 (WCAG 2.0), in statements of interest and consent decrees in other cases does not impose a legally binding standard on all public accommodations. It also noted that those consent decrees indicated flexibility to choose an appropriate auxiliary aid to communicate with disabled customers, and suggested that Domino’s provision of a telephone number for disabled customers may satisfy this obligation. Retailers that do not have an accessible website should therefore provide a toll-free number serviced by live customer service agents who can provide all the information and services available on the website.

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Reduce Potential ADA Liability by Making ATMs and Websites Accessible

Banks and credit unions are among the most recent targets of a wave of demand letters and lawsuits alleging violation of the Americans With Disabilities Act of 1990 (the “ADA”). The most common allegations concern inaccessible ATMs and websites, despite the fact that the ADA and its implementing regulations do not yet address website accessibility.

Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation,” 42 U.S.C. § 12182(a), which includes banks and credit unions.

In 2010, the federal regulations implementing the ADA were revised, and expressly addressed ATMs for the first time. Banks and credit unions were given until March 2012 to become fully compliant, and most litigation targeted institutions that failed to comply by that date.

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Pointers for Bank Recipients of Demand Letters Asserting ADA Non-Compliance

Community banks have recently been on the receiving end of demand letters from plaintiffs law firms alleging that the banks’ websites are in violation of the Americans With Disabilities Act of 1990 (the “ADA”).  Interestingly, there are currently no specific federal standards for websites under the ADA. The Department of Justice (“DOJ”) is in the process of developing regulations for website accessibility, but has announced it will not finalize these regulations until 2018 at the earliest. Even so, the DOJ has emphasized that businesses should make websites accessible to the disabled. While the regulations are being developed, many businesses have been applying the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA with the understanding that the DOJ has made clear that it considers a website accessible if it complies with these guidelines.

When a bank receives a demand letter the first thing they need to do is hire counsel to advise them about their various options, including mitigating any damages by curing website defects, litigation or settlement. As a practical matter, the best defense to such claims is making sure that the bank’s website is compliant with the WCAG 2.0 Level AA Guidelines. That may involve the use of internal resources as well as external consultants.  While it is impossible to tell whether suit will be filed in any given situation, banks should take note that the firms sending demands have previously been engaged in filing over 100 of these types of suits against various non-financial defendants over the past year.

Bryan Cave has put together a resource that provides generally accepted recommendations for website accessibility and federal ADA standards for ATM accessibility to help you review how your banks stands.

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New Class Action Suits Filed Alleging ATMs Not ADA Compliant

A recent spate of class action lawsuits directed at Georgia banks allege violations of ATM accessibility standards under Title III of the Americans with Disabilities Act, 42 U.S.C. 12101, et seq. (the “ADA”). In many respects, these suits appear similar to previous litigation targeting ATM operators for ATMs that allegedly lacked ATM fee disclosure decals.

The new class action lawsuits are based on recent ADA regulations that became effective in March of 2012, and that set forth numerous accessibility requirements for ATMs.

One plaintiff, who describes herself as legally blind in her complaints, has filed at least nine federal class action lawsuits in Georgia in the last six months against separate Georgia banks, alleging she was unable to utilize ATMs operated by various banks due to the banks’ failure to comply with the new regulations. Specifically, the plaintiff alleges in part that the ATMs did not have Braille instructions and lacked audio capability. These suits seek injunctive relief, as well as attorneys’ fees and costs, for the violations.

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New Class Action Regarding ATMs filed in Georgia

Some of the same law firms that filed numerous class action lawsuits against banks for owning or operating ATMs in alleged violation of the Electronic Fund Transfer Act (EFTA) are now turning their attention to similar lawsuits against banks who own or operate ATMs in alleged violation of the Americans with Disabilities Act (ADA).   

A new class action complaint was filed against BB&T last week in federal court in Atlanta alleging that two of BB&T’s ATMs did not meet the accessibility features that are mandated by the ADA.  Thomas v. Branch Banking and Trust Company, U.S. District Court, Northern District of Georgia, Civil Action No. 1:13-cv-00656.  The lawsuit was filed by a plaintiff who states that she is a blind individual that was denied access to two ATMs because the ATMs had no voice-guidance feature, no Braille instructions for initiating speech mode, and the function keys did not have the required tactile symbols.  The lawsuit seeks an injunction and payment of costs and attorneys’ fees.

If this new litigation follows the same trajectory as the EFTA class actions filed in the past year, we can expect similar lawsuits to continue to be filed against other banks over the next few weeks or months as the plaintiff and her attorney seek out other ADA violators.  If you have not checked your ATM for ADA compliance recently, now is the time to do so. 

Bryan Cave has defended numerous class actions involving ATMs in Georgia and across the country and is fully prepared to assist its banking clients in the defense of any new actions or in implementing a monitoring program.  If you have questions about this litigation, compliance with the statute, or the defense of these cases, please do not hesitate to call Bill Custer (404.572.6828), Jen Dempsey (404.572.6985), or Kalee Vargo (404.572.6639). 

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