ABA Banking Journal - June 2012 - (Page 48)

legal issues | BY THOMAS PInDeR ATMs in spotlight over ADA One case could help banks avoid paying plaintiff attorney fees If you are a Washington Redskins fan like I am, two years can feel like an eternity. But if you are a bank diligently rushing to upgrade ATMs to comply with the 2010 Americans with Disabilities Act (ADA) Accessibility Standards, two years can fly by like halftime. On March 15, 2012, all ATMs were required to comply with the revised ADA that mandates ATMs be upgraded so visually impaired customers can use the machines without assistance. While I have not met a banker who is against the blind having access to ATMs, there are more than 400,000 ATMs in the United States, some of which have not been upgraded due to vendor delays. As expected, several banks have been sued by private litigants for noncompliance. One newspaper reported on a litigant who has already sued seven banks, and whose attorney promised more lawsuits. However, in some instances, a bank may avoid paying plaintiff attorney fees. ADA private litigants are only entitled to attorney fees if they are deemed a “prevailing” party by the court. In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court held that to be a prevailing party, the claimant must receive a judgment on the merits or by consent decree. In short, to receive attorney fees, the plaintiff must be awarded some relief by the court. Buckhannon argued that a West Virginia law violated the ADA and the Fair Housing Act, and while his claim was pending, the state legislature repealed the law in question, rendering the case moot. Buckhannon requested attorney fees, contending the suit motivated the legislature to change the law. The Court denied attorney fees on the ground that Buckhannon was not a prevailing party who was awarded relief by the court, because the legislature, not the court, repealed the statute. Therefore, if a private litigant sues a bank for operating ATMs that violate the ADA, the litigant must receive court-ordered relief before the ATMs are fixed. Otherwise, the case may be dismissed as moot and the private litigants would not be entitled to attorney fees. There are two important caveats. The prevailing party analysis only applies to the ADA and not state law. Some litigants circumvent the Buckhannon ruling by filing lawsuits in state courts in jurisdictions like California and Massachusetts that offer state remedies that are less restrictive than Buck48 | ABA BANKING JOURNAL | June 2012 Thomas Pinder is vice-president, litigation at ABA. Contact him at tpinder@aba.com PhoTo: MArcel JAncovic/shuTTersTock.coM hannon’s requirements. Also, some attorneys are asking defendants to sign a letter waiving Buckhannon before engaging in negotiations to remedy alleged access violations, so if the access problems are corrected before a judicial ruling, the plaintiffs can still collect attorney fees. Nevertheless, if a plaintiff alleges some of your ATMs violate the ADA, and there are no corresponding state claims, ask your legal counsel whether the Buckhannon ruling applies to your situation; if so, you may avoid paying plaintiff ’s legal fees if the targeted ATMs will soon be upgraded. n

Table of Contents for the Digital Edition of ABA Banking Journal - June 2012

ABA Banking Journal - June 2012
Contents
Chairman’s View
Editor’s Column
The Economy
Bank Notes
Picture This
ABA Community Banking: A purpose-built bank
Pass the Aspirin
Tech Topics
Science of the complaint
Top-performing community banks
Compliance Clinic
ABA Resources
Legal Issues
First Person

ABA Banking Journal - June 2012

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