By Richard Hunt
In the last two months 19 class action lawsuits have been filed in the Northern and Eastern Districts of Texas claiming that ATM owners are violating the ADA because the voice guidance equipment in a single ATM is broken. More will have been filed by the time this blog is posted. The immediate impetus for these lawsuits is the March 15, 2012 effective date of the new Accessibility Standards, which require voice guidance in ATMs. This round of lawsuits may turn out to be a flash in the pan because of serious technical problems with the claims. On the other hand, if the local District Court accept the rationale in these lawsuits they may be part of a much larger wave of ADA litigation that goes beyond problems with individual ATMs.
All 19 lawsuits make the same basic claim. The plaintiff went to one ATM whose voice guidance equipment was broken. The plaintiff believes that other ATMs owned by the same bank are also broken. Two or more broken ATMs must mean that the owner’s procedures for fixing broken ATMs are inadequate, and, according to the plaintiff, the inadequacy of the owner’s procedures is discrimination against those with vision disabilities. This requires, it is claimed, a thorough investigation and an injunction with long term monitoring.
The leap from a single ATM broken on a single day to systemic discrimination requiring long term monitoring is enough to give Shaun White (as astronaut?) vertigo, but it is not the only astonishing claim in these lawsuits. Each of the two plaintiffs – all the cases were filed on behalf of one or the other of two individuals – claims that every single ATM visit was to take advantage of the service offered and that they intend to return to the very same ATM again in the future, although only to monitor compliance with the ADA. It still seems unlikely to the point of impossibility that one individual would, over the course of a month, only visit ATMs whose voice guidance was not working.
The claims are absurd, but there is no guarantee they will be dismissed early enough to avoid considerable attorneys fee expense for the defendants. If the District Courts to which they are assigned allow discovery the expense will rapidly exceed the likely cost of settlement, considering that the plaintiffs and their lawyers are probably aiming for a quick cash out in any case. Even more disturbing would be acceptance of the theory that a business must have in place a system for finding and eliminated ADA or FHA violations, and that the lack of such a system is itself a form of discrimination. That kind of theory would turn the most trivial violations into an excuse for protracted discovery, driving up the cost of defense to the point that settlement might be the only reasonable option.
These lawsuits require a vigorous and coordinated defense. Consolidation at the motion to dismiss stage could save tens of thousands of dollars in otherwise duplicated legal fees among the defendants. It would also bring before a single judge all of the claims about intent to use the ATMs. Those claims might seem plausible individually, but collectively are simply unbelievable. Finally, it would allow the banking community to develop a single consistent strategy for handling claims of this kind so that future claims could be dealt with more quickly and with less expense.
I would enjoy visiting with anyone who needs more information about the lawsuits or the means to defend them.