Robert Jahoda is a man on a mission. A Pennsylvania resident prone to litigiousness, he travels around the western portion of the state hunting for automated teller machines that don't meet federal standards for serving the visually impaired. When he finds one, Jahoda, who is blind, brings a class action lawsuit against whoever owns it.
Jahoda sued at least 18 banks and credit unions in less than two months, following the March 15 deadline for compliance with the latest set of updates to the Americans with Disabilities Act. Ambridge, the Western Pennsylvania town where Jahoda lives, is about 65 miles from the ATMs owned by one of his most recent defendants.
The main allegation in his complaints is that the machines aren't yet equipped with Braille instructions or the speech-enabling functions now required under the ADA. Without the speech mode, he argues, blind people can't tell whether they've pressed an incorrect key during a transaction. This can put ATM users' personal information at risk, as the vision-impaired may be left with "no choice but to repeatedly reveal their private PINs to others to complete an ATM banking transaction," according to complaints filed in federal court in Pittsburgh.
Sam Ditzion, president of the bank consulting firm Tremont Capital Group, estimates that more than half of the nation's 409,000 ATMs were not ADA-compliant as of the March deadline. The stats are only marginally better now, he says. "I think there are a very large number of ATMs that still are not compliant and that are very vulnerable to litigation."
First Commonwealth Bank, a defendant in one of the Jahoda suits, says it has been upgrading or replacing each of its 120 ATMs to meet the new ADA standards for voice guidance. The $6 billion-asset bank, based in Indiana, Pa., expected its fleet to be in full compliance by the end of last month.
Pittsburgh-based Fidelity Bank is one of three banks to have settled the claims already, through court-approved consent decrees. As part of its settlement, Fidelity agreed to establish a written policy stating its "commitment to maintaining [the compliance] of its ATMs" along with its intention to perform twice-monthly inspections of each ATM involved in the case "to confirm continued compliance."
While he has brought his suits as class actions, Jahoda so far has been settling the claims individually. Though this is allowed, individual settlements providing for class-wide relief are not the norm, since they don't provide notice to the class being represented, nor an opportunity for them to object.
In the complaints, Jahoda seeks no monetary damages other than costs and attorneys' fees. But the settlement amounts are contained in separate, confidential agreements and are not part of the public record.
Replying to an emailed query, Jahoda's lawyer, R. Bruce Carlson, says that the Justice Department introduced new ADA standards, which include voice guidance technology, "after receiving extensive feedback from all stakeholders, including the banking lobby." Carlson adds that he and his firm "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."
Before co-founding his practice, Carlson worked for a Pittsburgh mass tort firm where, according to his current firm's website, he "developed and managed one of the largest, if not the largest, pediatric lead poisoning practices in the country." He later switched specialties to consumer class actions.
Suing ATM operators has become a cottage industry in recent years, with most of the complaints alleging violations over a lack of required fee notices.
Ditzion sees the ADA cases and the fee-sticker cases as apples and oranges, though. He considers the lawsuits over missing fee notices as being without merit, a sentiment no doubt bolstered by evidence in some instances that properly affixed fee notices had been removed by unknown parties, leading to the suits.
As for the ADA-related complaints, Ditzion says, "nine out of 10 of them will be valid claims."
Burt Rublin, a Philadelphia-based partner at the Ballard Spahr law firm, which is defending some of the institutions sued by Jahoda, says he is not aware of any copycat litigation in other states. But Rublin says he would "not be at all surprised" if similar suits started popping up elsewhere.
That's a disturbing thought to Bruce Renard, executive director of the National ATM Council, a trade association based in Jacksonville, Fla. The prospect of fighting on a new legal front, he says, "is not a happy picture."
