ATM Lawsuits Draw Banks into Disabilities Act Mire

First Commonwealth Financial Corp., of Indiana, Pa., thought it had done a pretty good job.

Like many banks, the company scrambled to upgrade its ATMs ahead of a March 15 deadline to make them accessible to the blind. Of the $6 billion asset bank's 120 ATMs, 118 now meet the standard set by the Americans with Disabilities Act.

Unfortunately for First Commonwealth, those last two machines were enough to ensnare the bank in proposed class action lawsuits that have snagged 16 other banks in Ohio and Western Pennsylvania since late March.

"We feel we are very much working in the spirit of what needs to be done," Susie Barbour, a spokeswoman for First Commonwealth, says.

Banks have already spent hundreds of millions of dollars getting their ATMs into compliance with titles II and III of the Americans with Disabilities Act, which require them to make all of their ATMs fully accessible to the visually impaired. But many aren't done, leaving them open to potentially millions more in litigation costs. Bank defense attorneys say the Pennsylvania-Ohio legal cluster could replicate itself across the country, particularly as the ADA suits fall within the framework of successful class actions filed over wheelchair ramps and other physical design issues.

"When you take a look at the motivation for class actions, [class action shops] get attorney fees and settlement fees, and the banks pay for this," says Mercedes Kelley Tunstall, of counsel, at Ballard Spahr.

The sole plaintiff in all of the suits to date is Robert Jahoda, a resident of Ambridge, Pennsylvania, and identified as blind in court documents. He, and a proposed class of similarly "situated" people, is represented by the law firm Carlson Lynch, of Pittsburgh.

Among the firm's other targets are The Home Savings and Loan Company of Youngstown, Charleroi Federal Savings Bank, Fidelity Bank, Farmers & Merchants Bank of Western Pennsylvania, as well one big name, PNC Financial Services Group (PNC).

"I and my law firm have filed a number of lawsuits calculated to cause compliance with the requirements of this law," Bruce Carlson, the lead attorney in the case, wrote in an emailed statement. Carlson declined to discuss the cases with American Banker directly.

"We expect that the lawsuits that we filed will achieve the objective of Congress in that they will cause compliance with a law that the industry has known about for an extended period of time," Carlson wrote.

There's some truth to that. Banks have struggled one way or another with regulations and standards for the visually impaired since 1990, when the ADA became law.

The current regulations, which were issued and approved by the Department of Justice in 2010, require that ATMs have audio jacks for voice instructions, provide for privacy for visually impaired customers, such as the blacking out of screens when audio components are used, and that they contain braille instructions, among other things.

Those are merely the most recent in a series of evolving standards mandated by the DOJ and U.S. Access Board, the federal agency responsible for examining accessibility. The American Bankers Association has been working with the blind community, ATM manufacturers, and the Access board on the development of new standards since the late 1990's.

Where comity hasn't worked, coercion has. Since 2000, more than a dozen top banks committed to upgrading their ATMs as part of legal setttlements with visually impaired customers.

"These are things that should not be a surprise to banks. There has been a lot of coverage and opportunities to be involved in the process of making the law and commenting on the law and now implementing the law," says Joyce Ackerbaum Cox, a partner in the labor employment group for law firm Baker Hostetler, of Cleveland.