Just over one year ago, new ATM regulations under the Americans with Disabilities Act (ADA) became enforceable. Since virtually the stroke of midnight on March 15, 2012, banks, credit unions and other ATM operators have been served with lawsuits alleging noncompliance with certain of those new ADA regulations, particularly those requiring auxiliary aids and services for ATM users who are blind or have low vision. Until recently, plaintiffs' lawyers were focused on targets in Pennsylvania and Texas, but recently the first lawsuits related to ATM auxiliary aids and services were filed in Tennessee, Alabama, and Georgia. History tells us that these won't be the last.
If this all sounds familiar, it should. The same plaintiffs' lawyers who spent the last several years filing lawsuits related to fee disclosure decals on ATMs under the Electronic Fund Transfer Act (EFTA) are increasingly turning their attention to the ADA.
The ADA civil lawsuits – and more than 100 are currently pending – involve blind or low vision ATM users alleging that older ATMs fail to provide required auxiliary aids and services including Braille instructions, speech enabled modes, tactilely discernible input controls, and tactile symbols on function devices.
Defenses are available to an ADA lawsuit depending on the circumstances in each case. It is important to note, however, that defenses do not present a permanent exception to ADA compliance. But they can provide relief to financial institutions and ATM operators working toward complying with new ATM regulations, especially those applicable to ATMs which are not "grandfathered." The predominate costs of ADA lawsuits are plaintiffs' lawyers' attorney fees and court oversight.
The first year of the new ATM accessibility regulations has generated, on average, a lawsuit every three days. If our experience with the EFTA fee decals suits is any indication – and it probably is – financial institutions and ATM operators might expect a wave of ADA lawsuits over the next 365 days.
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