AMOUNT $_. / :0"-~) "~

UNITED STATES, DI,ST~T- ~OJ~RX.
FOR THE DISTRICT:OF (SSACHt TTS

SUMMONS ISSUED~ LOCAL RULE 4,1. WAIVER FORM,

MCF ISSUED_

BY DPTY. CLK, ~..,¢J~<’..

COMMONWEALTH OF MASSACHUSE. NATIONAL FEDERATION OF THE

,’ ~ r.~..-[RICT COURT ~,~"r’.~:v.e,~. -,.~-T~,O~FM~^,~~.,.c,.

DATE

" ~-

BLIND, INC., NATIONAL FEDERATION OF

C.A. No.:

THE BLIND OF MASSACHUSETTS, INC.,

ADRIENNE ASCH, RICHARD DOWNS,

THERESA JERALDI and

PHILIP OLIVER,

Plaintiffs,
Vo
E’TRADE ACCESS, INC. and E’TRADE BANK,

03 I1206 MEL

Defendants.

COMPLAINT NATURE OF THE CASE 1. Plaintiff Commonwealth of Massachusetts, by and through its Attomey General, Thomas Reilly, and Plaintiffs, the National Federation of the Blind, Inc. and the National Federation of the Blind of Massachusetts, Inc. (collectively "Organizational Plaintiffs"), and Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver, individuals who are legally blind (collectively "individual Plaintiffs"), by their undersigned counsel, bring this complaint against the Defendants E’Trade Access, Inc. and E’Trade Bank, individually and jointly, for their failure to make accessible to blind persons the use of the automated teller machines (ATM’s) that they operate and control, or that they operate, control and lease, and that are public accommodations and located in places of public accommodation, in violation of Title III of the

Americans with Disabilities Act ("ADA"), 42 U.S.C. §§12182 and 12183 and the regulations promulgated thereunder, 28 C.F.R. Part 36.101 et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103.
Plaintiffs seek injunctive relief requiring Defendants to make accessible the existing and newly installed ATM’s that they operate and control, or that they operate, control and lease, so that banking and investment services that are available to a sighted user of these ATMs are similarly independently available to blind people, of whom there are approximately 1.1 million nationwide, including approximately 35,000 in Massachusetts. Plaintiffs also seek compensatory and punitive damages as a result of Defendants’ knowing, intentional and deliberate disregard of the law.
JURISDICTION AND VENUE 2. This action is authorized by 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 12188. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367, since each Defendant transacts business in the Commonwealth, maintains facilities in the Commonwealth and the claims against each Defendant arise out of the transaction of business in Massachusetts. The Court also has supplemental jurisdiction over the state law claims at issue pursuant to 28 U.S.C. § I367. 3. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), since each Defendant, as a corporation, is subject to personal jurisdiction in this District because a substantial part of the events giving rise to this action occurred and continue to occur in this District.

PARTIES 4. The Commonwealth of Massachusetts, represented by the Attorney General, brings this action in the public interest. The Attorney General’s principal office is located at One Ashburton Place, Boston, Massachusetts. The Attorney GeneraI is authorized to bring this action on behalf of the Commonwealth pursuant to Mass. Gen. Laws. ch. 151B, § 5, in addition to other statutory and common law authority to bring legal actions in the public interest. See, e.g., Mass. Gen. Laws ch. 12, § 10. 5. The National Federation of the Blind ("NFB" or "Federation"), the leading national organization of blind persons, is a non-profit corporation duly organized under the laws of the District of Columbia with its principal place of business in Baltimore, Maryland. It has affiliates in all 50 states, Washington, D.C. and Puerto Rico. The vast majority of the Federation’s approximately 50,000 members are blind persons and therefore members of the protected class of disabled persons under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. The Federation is widely recognized by the public, Congress, executive agencies Of government and the courts as a collective and representative voice on behalf of blind Americans and their families. The purpose of the NFB is to promote the general welfare of the blind by (1) assisting the blind in their efforts to integrate themselves into society on terms of equality and (2) removing barriers and changing social attitudes, stereotypes and mistaken beliefs sighted and blind persons hold concerning the limitations created by blindness that result in the denial of opportunity to blind persons in virtually every sphere of life. The NFB

and many of its members have long been actively involved in promoting adaptive technology for the blind, so that blind persons can live and work independently in today’s technology-dependent world. NFB members reside throughout the United States, including the Commonwealth of Massachusetts, and many of its members would use the ATM’s and the services offered by Defendants if they were made independently usable by the blind.
6. The National Federation of the Blind of Massachusetts, Inc. ("NFBMassachusetts"), an affiliate of the NFB, is a non-profit corporation duly organized under the laws of the Commonwealth of Massachusetts, with its administrative office located in Somerset, Massachusetts. NFB-Massachusetts currently has eight local chapters and approximately three hundred members. All members of NFB-Massaehusetts are also members of NFB. NFBMassachusetts members reside and work throughout the Commonwealth and many members would use the ATM’s offered by Defendants if they were made independently usable by the blind.
7. Adrienne Asch, a blind resident of Cambridge, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.10I, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Ms. Asch is a professor of Bioethies at Wellesley College. She would like to use the ATMs offered by Defendants if they were made independently usable by the blind.
8. Richard Downs, a blind resident of Stoughton, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass.
4

Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Mr. Downs is employed by Ferguson Industries, a sheltered workshop in Stoughton, Massachusetts. Mr. Downs would like to use the ATM’s offered by Defendants if they were made independently usable by the blind.
9. Theresa Jeraldi, a blind resident of Watertown, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Ms. Jeraldi is a retired employee of the Office of Civil Rights of the United States Department of Education. She would like to use the ATM’s offered by Defendants if they were made independently usable by the blind.
I 0. Philip Oliver, a blind resident of Leominster, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Mr. Oliver is employed by the Massachusetts Commission for the Blind and would like to use the ATM’s offered by Defendants if they were made independently usable by the blind.
11. E’Trade Access, Inc. ("E’Trade Access"), an Oregon corporation with its principal place of business in Arlington, Virginia, is a subsidiary of E’Trade Bank. E’Trade Access owns, operates, controls, and/or leases ATMs under the E’Trade name.
12. E’Trade Bank, a federally chartered savings bank with its principal place of business in Arlington, Virginia, is a wholly-owned subsidiary of E’Trade Financial Corporation.

E’Trade Bank offers banking services, including the withdrawal of funds, the making of deposits, and the verification of deposits, at over 15,000 ATMs owned and/or operated under the E’Trade name across the United States, including more than 600 in Massachusetts.
13. E’Trade Access, Inc. and E’Trade Bank (collectively "E’Trade") are subsidiaries of E’Trade Group Inc., a Delaware corporation with its principal place of business in Menlo Park, California.
FACTS 14. E’Trade boasts a fleet of more than 15,000 ATMs nationwide. Its ATMs offer to the public convenient access to common banking transactions, including cash withdrawals and deposits, at retail sites which include restaurants, convenience stores and gas stations located in all 50 states and the District of Columbia. 15. E’Trade holds legal title to only a few thousand of the more than 15,000 ATMs it operates within its network (approximately t 7 in Massachusetts) (the ’°E’Trade-owned ATMs"). After demand and as a result of negotiation, E’Trade has agreed to make the E’Trade-owned ATMs accessible to the blind. 16. E’Trade operates and controls the balance of ATMs in its fleet at the site of various retail merchants, pursuant to a variety of contractual arrangements with the merchants. On information and belief, E’Trade leases back from merchants some of the ATMs it operates and controls, including some of the ATMs it operates and controls within Massachusetts (ATMs that E’Trade operates and controls, or operates, controls and leases are referred to as "E’Tradeoperated ATMs"). E’Trade has not and does not intend to make E’Trade-operated ATMs accessible to the blind.
6

17. E’Trade represents to the public, just as it does with the E’Trade-owned ATMs, that each of the E’Trade-operated ATMs is an E’Trade ATM. Each E’Trade-operated machine also (a) displays the E’Trade logo, and (b) offers fee-free transactions only to E’Trade customers. In addition, E*Trade’s website does not distinguish between E’Trade-owned and E’Trade-operated ATMs, stating, "With more than 15,000 ATMs, we operate the second largest network of ATMs in the United States."
18. On information and belief, E’Trade plans to expand the services at E’Tradeoperated ATMs to include not only banking services, but also access to the brokerage and other financial services of E’Trade Financial Corporation, a wholly-owned subsidiary of E’Trade Group.
19. Each E’Trade-operated ATM; each of the locations in which those ATMs are found; and the network of E’Trade-operated ATMs are all public accommodations as defined by Title HI of the ADA, 42 U.S.C. § 12181 (7), the regulations implementing the ADA contained in 28 C.F.R. § § 36.101, et seq., and the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 92A.
20. The banking and investment services offered through E’Trade-operated ATMs in Massachusetts constitute a program or activity under Article 114 of the Amendments to the Massachusetts Constitution, Mass. Const. amend. CXIV.
2t. E’Trade deprives blind people of the opportunity to independently engage in financial transactions on the same terms as sighted people. E’Trade-operated ATMs are inaccessible because they use computer screen text prompts that are undetectable to blind people

to guide customers through banking or investment transactions. These computer screen text prompts are not translated into a medium accessible to the blind, such as audio output.
22. Currently, if a blind person enters the wrong personal identification number ("PIN") into an E’Trade-operated ATM, the ATM may retain his or her card. Also, a blind person who presses an incorrect function key on an E’Trade-operated ATM has no way of knowing that he or she has made a mistake in the transaction.
23. As a result of this inaccessibility, the Individual Plaintiffs and members of the Organizational Plaintiffs, unlike persons without visual impairments, are not able to independently use E’Trade-operated ATMs.
24. E’Trade ATMs threaten blind people with loss of their private information. Blind people who wish to use an E’Trade-operated ATMs have no choice but to repeatedly reveal their private PINs to others to complete an ATM banking and/or investment transaction.
25. As a result, unlike persons who are not blind, the Individual Plaintiffs and members of the Organizational Plaintiffs who wish to use an E’Trade ATM are not able to maintain the security of their private PINs.
26. Although some E’Trade-operated ATMs have Braille keypads and labels, this feature is not an effective accommodation under the ADA:
a. Not all persons who are blind read Braille. In fact, current national figures estimate a Braille literacy rate of only 15% among persons who are blind; and
b. Braille keypads and labels are static and do not provide sequential computer screen instructions or any information about the contents of any given screen.
8

27. The only effective means to make E’Trade-operated ATMs accessible to blind people is through voice guidance technology. Voice guidance technology allows a blind person to plug a personal headphone into a universal audio jack and hear the step-by-step instructions as they appear on the ATM screen. Voice guidance technology orients a blind person to the features of an ATM, the operational options of the machine, and the details for each function of the machine. Voice guidance technology also provides a verification mechanism through which a blind person may confirm that a number he or she has entered on the keypad is the number he or she intended to enter, or that the transaction chosen was the intended transaction.
28. Voice guided technology has been widely used in a variety of other contexts for decades and has been readily available for application to ATMs. It has long been affordable and available as an option with the purchase of new ATMs or as an upgrade for existing ATMs, and competitors of the Defendants have offered voice guidance technology at ATMs they own, operate, and~or lease. Moreover, Defendants are in the process of implementing voice guidance technology for their E’Trade-owned ATMs.
29. Without injunctive relief, Individual Plaintiffs and members of the Organizational Plaintiffs will continue to be unable to independently use E’Trade-operated ATMs in violation of their fights under the ADA, the Massachusetts Public Accommodations Act, and the Massachusetts Equal Rights Act.
COUNT I (Violation of the ADA’s Full and Equal Enjoyment of Services Mandate) 30. The allegations contained in the previous paragraphs are incorporated by reference.
9

31. Plaintiffs Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Nathaniel

Oliver and Organizational Plaintiffs’ members are legally blind and recognized as a protected

class under the ADA, 42 U.S.C. § 12102(2), and the regulations implementing the ADA

contained in 28 C.F.R. §§ 36.101, et seq,

32. Each Defendant operates or operates and leases, and operates within, a place of

public accommodation as defined by Title lII of the ADA, 42 U.S.C. § 12181 (7)(F).

33. Each Defendant, in violation of 42 U.S.C. § 12182(a), has failed to make its ATM

banking and investment services fully accessible and independently usable by individuals who

are blind.

COUNT II

(Violation of ADA’s Reasonable Modification Mandate)

34. The allegations contained in the previous paragraphs are incorporated by

reference.

35. Each Defendant, in violation of 42 U.S.C. § 12182(b)(2)(A)(ii), has failed to make reasonable modifications (by failing to modify policies, practices and procedures) necessary to

make its ATM banking and investment services fully accessible and independently usable by

individuals who are blind.

36. Modifying its policies, practices and procedures to afford blind persons full

accessibility and independent use of ATMs the Defendants operate or operate and lease would

not fundamentally alter the nature of Defendants’ banking and investment services.

I0

COUNT III (Violation of the ADA’s Auxiliary Aids and Services Mandate) 37. The allegations contained in the previous paragraphs are incorporated by reference. 38. Defendants, in violation of the auxiliary aids and services provision of the ADA 42 U.S.C. §12182(b)(2)(A)(iii), have failed to make their ATM banking and investment services fully accessible and independently usable by blind persons. 39. Providing auxiliary aids and services to make ATMs the Defendants operate or operate and lease accessible to and independently usable by blind persons would neither fundamentally alter the nature of Defendants’ banking and investment services nor result in an undue burden.
COUNT IV (Violation of the ADA’s Communication Barrier Removal Mandate) 40. The allegations contained in the previous paragraphs are incorporated by reference. 41, Each Defendant, in violation of 42 U,S.C. § 12182 (b)(2)(A)(iv), has failed to remove communication barriers from the ATMs it operates or operates and leases. 42. Installing voice guidance technology to make ATMs the Defendants operate or operate and lease accessible to and independently usable by persons who are blind is readily achievable.
11

COUNT V (Violation of the ADA’s New Construction Mandate) 43. The allegations contained in the previous paragraphs are incorporated by reference. 44. Each Defendant, in violation of 42 U.S.C. § 12183, operates or operates and leases ATMs that were installed after January 26, 1993 and are not readily accessible to and independently usable by blind persons. 45. Defendants are required to comply with the standards for accessible design set forth in the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). 28 C.F.R. § 36.406. ADAAG Section 4.34.5 requires that "[i]nstructions and all information for use [in ATM’s] shall be made accessible to and independently usable by persons with vision impairments." 46. Each Defendant, in violation of 42 U.S.C. §12183 and 28 C.F.R. § 36.406, has failed to make its ATM banking and investment services fully accessible and independently usable by blind persons.
COUNT VI (Violation of the Massachusetts Public Accommodations Act) 47. The allegations contained in the previous paragraphs are incorporated by reference. 48. Plaintiffs Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver and Organizational Plaintiffs’ members are Iegally blind and recognized as a protected class under Mass. Gen. Laws ch. 272, § 98.
12

49. Each Defendant operates and controls, and operates within, a place of public

accommodation as defined by Mass. Gen. Laws ch. 272, § 92A.

50. Each Defendant, in violation of Mass. Gen. Laws ch. 272, § 98, has failed to make

its ATM banking and investment services fully accessible and independently usable by

individuals who are blind.

COUNT VII

(Violation of the Massachusetts Equal Rights Act)

51. The allegations contained in the previous paragraphs are incorporated by

reference. 52.

Plaintiffs Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Nathanial

Oliver and Organizational Plaintiffs’ members are legally blind and are recognized as a protected

class under Mass. Const. amend. CXIV and under the Massachusetts Equal Rights Act, Mass.

Gen. Laws ch. 93, § 103(a).

53. The banking and investment services offered through E’Trade-operated ATMs in

Massachusetts constitute a program or activity under Mass. Const. amend. CXIV.

54. Each Defendant has excluded blind people from the participation in and benefits

of the banking and investment services offered through E’Trade-operated ATMs in Massachusetts and has subjected Plaintiffs to discrimination under Mass. Const. amend. CXIV

and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103(a).

PRAYERS FOR RELIEF

WHEREFORE, Plaintiffs request that the Court:

(a) exercise jurisdiction over this action;

13

(b) declare that the actions and inactions of Defendants E’Trade Access, Inc. and E’Trade Bank violate Title 1~ of the ADA, 42 U.S.C. §§ 12182 and 12183, 28 C.F.R. § 36.101 et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws. ch. 272 §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103.
(c) enjoin each of the Defendants from continuing to violate the ADA and Massachusetts law and order all Defendants immediately to make the necessary modifications to the ATMs they operate or operate and lease, so that blind people may have access to and independently use these ATMs; and
(d) order such other relief as may be just, equitable and appropriate, including an award of actual and punitive damages, reasonable attorneys’ fees, litigation expenses and costs pursuant to 42 U.S.C. § 12205, and Mass. Gen. Laws ch. 151B, §§ 5 and 9.
Respectfully submitted,

COMMONWEALTH OF MASSACHUSETTS, NFB, NFB-MASSACHUSETTS AND THE

By its attomeys,

INDIVIDUAL PLAINTIFFS,

By their attorneys,

Patricia Correa, BBO No. Assistant Attorney General Director, Disability Rights Project
OFFICE OF THE ATTORNEY GENERAL One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919

Anthony Doniger, BBO No. 129420 Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak & Cohen 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

14

DATED: June 25, 2003

Daniel F. Goldstein (admission pending) Sharon Krevor-Weisbaum (admission pending) BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street Suite 1700 Baltimore, Maryland 21202
(410) 962-1030

15

 
 UNITED STATES DISTRICT;COURT.- .... ~:. FOR THE DISTRICT OF I~SSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, .

NATIONAL FEDERATION OF THE

.

BLIND, INC., NATIONAL FEDERATION OF

THE BLIND OF MASSACHUSETTS, INC.,

ADRIENNE ASCH, RICHARD DOWNS,

.

THERESA JERALDI and

PHILIP OLIVER,

Plaintiffs,

C.A. No.: 03 11206-MEL

E’TRADE ACCESS, INC. and E’TRADE BANK,
Defendants.
AMENDED COMPLAINT NATURE OF THE CASE 1. Plaintiff Commonwealth of Massachusetts, by and through its Attorney General, Thomas Reilly, and Plaintiffs, the National Federation of the Blind, Inc. and the National Federation of the Blind of Massachusetts, Inc. (collectively "Organizational Plaintiffs"), and Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver, individuals who are legally blind (collectively "individual Plaintiffs"), by their undersigned counsel, bring this complaint against the Defendants E’Trade Access, Inc. and E’Trade Bank, individually and jointly, for (1) E’Trade Bank’s failure to offer E’Trade banking services, the services of a public accommodation, through ATMs that are accessible to blind people; (2) the Defendants’ operation and control, or operation, control and leasing, of inaccessible ATMs that are public

accommodations, that offer the services of a public accommodation, and that are located in places of public accommodation, in violation of Title HI of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § § 12182 and 12 183 and the regulations promulgated thereunder, 28 C.F.R. Part 36.101 et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103.
Plaintiffs seek injunctive relief requiring Defendants to make accessible the existing and newly installed ATMs through which E’Trade Bank offers banking services, or that they operate and control, or that they operate, control and lease, so that banking services that are available to a sighted user of these ATMs are similarly independently available to blind people, of whom there are approximately 1.1 million nationwide, including approximately 35,000 in Massachusetts. Plaintiffs also seek compensatory and punitive damages as a result of Defendants’ knowing, intentional and deliberate disregard of the law.
JURISDICTION AND VENUE 2. This action is authorized by 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 12188. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367, since each Defendant transacts business in the Commonwealth, maintains facilities in the Commonwealth and the claims against each Defendant arise out of the transaction of business in Massachusetts. The Court also has supplemental jurisdiction over the state law claims at issue pursuant to 28 U.S.C. § 1367. 3. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), since each Defendant, as a corporation, is subject to personal jurisdiction in this District because a

substantial part of the events giving rise to this action occurred and continue to occur in this District.
PARTIES 4. The Commonwealth of Massachusetts, represented by the Attorney General, brings this action in the public interest. The Attorney General’s principal office is located at One Ashburton Place, Boston, Massachusetts. The Attorney Genera/is authorized to bring this action on behalf of the Commonwealth pursuant to Mass. Gen. Laws. ch. 151B, § 5, in addition to other statutory and common law authority to bring legal actions in the public interest. See, e.g., Mass. Gen. Laws ch. 12, § 10. 5. The National Federation of the Blind ("NFB" or "Federation"), the leading national organization of blind persons, is a non-profit corporation duly organized under the laws of the District of Columbia with its principal place of business in Baltimore, Maryland. It has affiliates in all 50 states, Washington, D.C. and Puerto Rico. The vast majority of the Federation’s approximately 50,000 members are blind persons and therefore members of the protected class of disabled persons under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. The Federation is widely recognized by the public, Congress, executive agencies of government and the courts as a collective and representative voice on behalf of blind Americans and their families. The purpose of the NFB is to promote the general welfare of the blind by (1) assisting the blind in their efforts to integrate themselves into society on terms of equality and (2) removing barriers and changing social attitudes, stereotypes and

mistaken beliefs sighted and blind persons hold concerning the limitations created by blindness that result in the denial of opportunity to blind persons in virtually every sphere of life. The NFB and many of its members have long been actively involved in promoting adaptive technology for the blind, so that blind persons can live and work independently in today’s technology-dependent world. NFB members reside throughout the United States, including the Commonwealth of Massachusetts, and many of its members would use the ATMs and the services offered by Defendants if they were made independently usable by the blind.
6. The National Federation of the Blind of Massachusetts, Inc. ("NFBMassachusetts"), an affiliate of the NFB, is a non-profit corporation duly organized under the laws of the Commonwealth of Massachusetts, with its administrative office located in Somerset, Massachusetts. NFB-Massachusetts currently has eight local chapters and approximately three hundred members. All members of NFB-Massachusetts are also members ofNFB. NFBMassachusetts members reside and work throughout the Commonwealth and many members would use the ATMs offered by Defendants if they were made independently usable by the blind.
7. Adrienne Asch, a blind resident of Cambridge, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.10I, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § I03. Ms. Aseh is a professor of Bioethics at Wellesley College. She would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E’Trade Bank account holder if that bank’s services were independently usable by the blind.
4

8. Richard Downs, a blind resident of Stoughton, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36,101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Mr. Downs is employed by Ferguson Industries, a sheltered workshop in Stoughton, Massachusetts. Mr. Downs would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E’Trade Bank account holder if that bank’s services were independently usable by the blind.
9. Theresa Jeraldi, a blind resident of Watertown, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § i03. Ms. Jeraldi is a retired employee of the Office of Civil Rights of the United States Department of Education. She would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E’Trade Bank account holder if that bank’s services were independentIy usable by the blind.
10. Philip Oliver, a blind resident of Leominster, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws oh. 93, § 103. Mr. Oliver is employed by the Massachusetts Commission for the Blind and would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to

have the choice to be an E’Trade Bank account holder if that bank’s services were independently usable by the blind.
11. E’Trade Access, hac. ("E’Trade Access"), an Oregon corporation with its principal place of business in Arlington, Virginia, is a subsidiary of E’Trade Bank. E’Trade Access owns, operates, controls, and/or leases ATMs under the E’Trade name.
12. E’Trade Bank, a federally chartered savings bank with its principal place of business in Arlington, Virginia, is a wholly-owned subsidiary of E’Trade Financial Corporation. E’Trade Bank is a public accommodation pursuant to 42 U.S.C. § 12181(7)(f) that offers banking services, including the withdrawal of funds, the making of deposits, and the verification of deposits, at over 15,000 ATMs owned and/or operated under the E’Trade name across the United States, including more than 600 in Massachusetts.
I3. E’Trade Access, Inc. and E’Trade Bank (collectively "E’Trade") are subsidiaries of E’Trade Group Inc., a Delaware corporation with its principal place of business in Menlo Park, C~tlifornia.
FACTS 14. E’Trade boasts a fleet of more than 15,000 ATMs nationwide. Its ATMs offer to the public convenient access to common banking transactions, including cash withdrawals and deposits, at retaiI sites which include restaurants, convenience stores and gas stations located in all 50 states and the District of Columbia. 15. E’Trade Access holds legal title to only a few thousand of the more than 15,000 ATMs it operates within its network (approximately 17 in Massachusetts) (the "E’Trade-owned

ATMs"). After demand and as a result of negotiation, E’Trade Access has agreed to make the E’Trade Access-owned ATMs accessible to the blind.
16. E’Trade operates and controls the balance of ATMs in its fleet at the site of various retail merchants, pursuant to a variety of contractual arrangements with the merchants. On information and belief, E’Trade leases back from merchants some of the ATMs it operates and controls, including some of the ATMs it operates and controls within Massachusetts (ATMs that E’Trade operates and controls, or operates, controls and leases are referred to as "E’Tradeoperated ATMs"). E’Trade has not and does not intend to make E’Trade-operated ATMs accessible to the blind.
17. E’Trade Bank offers its banking services, including fee-free transactions to E’Trade Bank account holders, through E’Trade-owned and E’Trade-operated ATMs.
18. E’Trade represents to the public, just as it does with the E’Trade-owned ATMs, that each of the E’Trade-operated ATMs is an E’Trade ATM. Each E’Trade-operated machine aIso (a) displays the E’Trade logo, and (b) offers fee-free transactions to E’Trade Bank account holders. In addition, E’Trade Bank’s website does not distinguish between E’Trade-owned and E’Trade-operated ATMs, stating, "With more than 15,000 ATMs, we operate the second largest network of ATMs in the United States."
19. On information and belief, E’Trade plans to expand the services at E’Tradeoperated ATMs to include not only banking services, but also access to the brokerage and other financial services of E’Trade Financial Corporation, a wholly-owned subsidiary of E’Trade Group.
7

20. E’Trade Bank; each E’Trade-operated ATM; each of the locations in which those ATMs are found; and the network of E’Trade-operated ATMs are all public accommodations as defined by Title/~I of the ADA, 42 U.S.C. § 12181(7), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., and the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 92A.
21. The banking services offered by E’Trade Bank through E’Trade-operated ATMs in Massachusetts constitute a program or activity under Article 1 I4 of the Amendments to the Massachusetts Constitution, Mass. Const. amend. CXIV, and the services and facilities of a public accommodation under 42 U.S.C. § 12181.
22. E’Trade deprives blind people of the opportunity to independently engage in financial transactions on the same terms as sighted people. E’Trade-operated ATMs are inaccessible because they use computer screen text prompts that are undetectable to blind people to guide customers through banking transactions. These computer screen text prompts are not translated into a medium accessible to the blind, such as audio output.
23. Currently, if a blind person enters the wrong personal identification number ("PIN") into an E’Trade-operated ATM, the ATM may retain his or her card. Also, a blind person who presses an incorrect function key on an E’Trade-operated ATM has no way of knowing that he or she has made a mistake in the transaction.
24. As a result of this inaccessibility, the Individual Plaintiffs and members of the Organizational Plaintiffs, unlike persons without visual impairments, are not able to independently use E’Trade-operated ATMs.
8

25. E’Trade ATMs threaten blind people with loss of their private information. Blind people who wish to use an E’Trade-operated ATMs have no choice but to repeatedly reveal their private PINs to others to complete an ATM banking transaction.
26. As a result, unlike persons who are not blind, the Individual Plaintiffs and members of the Organizational Plaintiffs who wish to use an E’Trade ATM are not able to maintain the security of their private PINs.
27. Although some E’Trade-operated ATMs have Braille keypads and labels, this feature is not an effective accommodation under the ADA:
a. Not all persons who are blind read Braille. In fact, current national figures estimate a Braille literacy rate of only 15% among persons who are blind; and
b. Braille keypads and labels are static and do not provide sequential computer screen instructions or any information about the contents of any given screen.
28. The only effective means to make E’Trade-operated ATMs accessible to blind people is through voice guidance technology. Voice guidance technology allows a blind person to plug a personal headphone into a universal audio jack and hear the step-by-step instructions as they appear on the ATM screen. Voice guidance technology orients a blind person to the features of an ATM, the operational options of the machine, and the details for each function of the machine. Voice guidance technology also provides a verification mechanism through which a blind person may confirm that a number he or she has entered on the keypad is the number he or she intended to enter, or that the transaction chosen was the intended transaction.
29. Voice guided technology has been widely used in a variety of other contexts for decades and has been readily available for application to ATMs. It has long been affordable and
9

available as an option with the purchase of new ATMs or as an upgrade for existing ATMs, and competitors of the Defendants have offered voice guidance technology at ATMs they own, operate, and/or lease. Moreover, Defendants are in the process of implementing voice guidance technology for their E’Trade-owned ATMs.
30. Without injunctive relief, Individual Plaintiffs and members of the Organizational Plaintiffs will continue to be unable to independently use E’Trade-operated ATMs in violation of their rights under the ADA, the Massachusetts Public Accommodations Act, and the Massachusetts Equal Rights Act.
COUNT I (Violation of the ADA’s Full and Equal Enjoyment of Services Mandate) 31. The allegations contained in the previous paragraphs are incorporated by reference. 32. Plaintiffs Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Nathaniel Oliver and Organizational Plaintiffs’ members are legally blind and recognized as a protected class under the ADA, 42 U.S.C. § 12102(2), and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq. 33. E’Trade Bank is a public accommodation, and each Defendant operates or operates and leases, and operates within, a place of public accommodation as defined by Title of the ADA, 42 U.S.C. § 12181(7)(F). 34. Each Defendant, in violation of 42 U.S.C. § 12182(a), has failed to make its ATM banking services fully accessible and independently usable by individuals who are blind.
10

COUNT II (Violation of ADA’s Reasonable Modification Mandate) 35. The allegations contained in the previous paragraphs are incorporated by reference. 36. Each Defendant, in violation of 42 U.S.C. § 12182(b)(2)(A)(ii), has failed to make reasonable modifications (by failing to modify policies, practices and procedures) necessary to make its ATM banking services fully accessible and independently usable by individuals who are blind. 37. Modifying its policies, practices and procedures to afford blind persons full accessibility and independent use of ATMs the Defendants operate or operate and lease would not fundamentally alter the nature of Defendants’ banking services.
COUNT III (Violation of the ADA’s Auxiliary Aids and Services Mandate) 38. The allegations contained in the previous paragraphs are incorporated by reference. 39. Defendants, in violation of the auxiliary aids and services provision of the ADA 42 U.S.C. § 12182(b)(2)(A)(iii), have failed to make their ATM banking services fully accessible and independently usable by blind persons. 40. Providing auxiliary aids and services to make ATMs the Defendants operate or operate and lease, and through which E’Trade Bank offers its banking services, accessible to and independently usable by blind persons would neither fundamentally alter the nature of Defendants’ banking services nor result in an undue burden.
11

COUNT IV (Violation of the ADA’s Communication Barrier Removal Mandate) 41. The allegations contained in the previous paragraphs are incorporated by reference. 42. Each Defendant, in violation of 42 U.S.C. §12182 (b)(2)(A)(iv), has failed to remove communication barriers from the ATMs it operates or operates and leases and through which E’Trade Bank offers its banking services. 43. Installing voice guidance technology to make ATMs the Defendants operate or operate and lease, and through which E’Trade Bank offers its banking services, accessible to and independently usable by persons who are blind is readily achievable.
COUNT V (Violation of the ADA’s New Construction Mandate) 44. The allegations contained in the previous paragraphs are incorporated by reference. 45. Each Defendant, in violation of 42 U.S.C. §12183, operates or operates and leases, or offers banking services through, ATMs that were installed after January 26, 1993 and are not readily accessible to and independently usable by blind persons, 46. Defendants are required to comply with the standards for accessible design set forth in the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). 28 C.F.R. § 36.406. ADAAG Section 4.34,5 requires that "[i]nstructions and all information for use [in A’I’M’s] shall be made accessible to and independently usable by persons with vision impairments."
12

47. Each Defendant, in violation of 42 U.S.C. §12183 and 28 C.F.R. § 36.406, has failed to make its ATM banking services fully accessible and independently usable by blind persons.
COUNT VI (Violation of the Massachusetts Public Accommodations Act) 48. The allegations contained in the previous paragraphs are incorporated by reference. 49. Plaintiffs Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver and Organizational Plaintiffs’ members are legally blind and recognized as a protected class under Mass. Gen. Laws ch. 272, § 98. 50. Each Defendant operates and controls, and operates within, a place of public accommodation as defined by Mass. Gen. Laws ch. 272, § 92A. 51. Each Defendant, in violation of Mass. Gen. Laws ch. 272, § 98, has failed to make its ATM banking services fully accessible and independently usable by individuals who are blind.
COUNT VII (Violation of the Massachusetts Equal Rights Act) 52. The allegations contained in the previous paragraphs are incorporated by reference. 53. Plaintiffs Adrienne Asch, Richard Downs, Theresa Jeratdi and Philip Nathanial Oliver and Organizational Plaintiffs’ members are legally blind and are recognized as a protected class under Mass. Const. amend. CXIV and under the Massachusetts Equal Rights Act, Mass.
13

Gen. Laws eh. 93, § I03(a). 54. The banking services offered by E’Trade Bank through E’Trade-operated ATMs
in Massachusetts constitute a program or activity under Mass. Const. amend. CXIV. 55. Each Defendant has excluded blind people from the participation in and benefits
of the banking services offered by E’Trade Bank through E’Trade-operated ATMs in Massachusetts and has subjected Plaintiffs to discrimination under Mass. Const. amend. CXIV and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103(a).
PRAYERS FOR RELIEF WHEREFORE, Plaintiffs request that the Court:
(a) exercise jurisdiction over this action; (b) declare that the actions and inactions of Defendants E’Trade Access, Inc. and E’Trade Bank violate Title IS[ of the ADA, 42 U.S.C. §§ 12182 and 12183, 28 C.F.R. § 36.101 et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws. ch. 272 §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. (c) enjoin each of the Defendants from continuing to violate the ADA and Massachusetts law and order all Defendants immediately to make the necessary modifications to the ATMs they operate or operate and lease, so that blind people may have access to and independently use these ATMs; and (d) order such other relief as may be just, equitable and appropriate, including an award of actual and punitive damages, reasonable attorneys’ fees, litigation expenses and costs pursuant to 42 U.S.C. § 12205, and Mass. Gen. Laws ch. 151B, §§ 5 and 9.
14

Respectfully submitted,

COMMONVqEALTH OF MASSACHUSETTS, NFB, NFB-MASSACHUSETTS AND THE

By its attorneys,

INDIVIDUAL PLAINTIFFS,

By their attorneys,

Patricia Correa, BBO No. 5~6"0-437 Assistant Attorney General Director, Disability Rights Project OFFICE OF THE ATTORNEY GENERAL One Ashburton Place
Boston, MA 02108 (617) 727-2200, ext. 2919

Anthony Do~ger; BBd N-o/J f9420 Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak & Cohen 101 Merrimac Street
Boston, MA 02I 14-4737 (617) 227-3030

DATED: July 22, 2003

Daniel F. Goldstein (admission pCJding)
Sharon Krevor-Weisbaum (admission pending) BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street Suite 1700 Baltimore, Maryland 21202 (410) 962-1030

15

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS et al., Plaintiffs,
Vo
E’TRADE ACCESS, INC. et al., Defendants.

Case No. 03 11206 MEL

MEMORANDUM OF LAW IN SUPPORT OF E’TRADE BANK’S RULE 12(B)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM The Commonwealth of Massachusetts and National Federation of the Blind, Inc. have a legal dispute with E’TRADE Access, Inc. ("Access"), which maintains a nationwide network of automated teller machines ("ATMs"). The parties disagree about whether the Americans with Disabilities Act ("ADA") requires Access to provide speech capability for blind persons at ATMs that it does not own or operate, but which merely participate in Access’ ATM network. Access is today filing an Answer denying all material allegations in the Amended Complaint. Plaintiffs have also named a second defendant, E’TRADE Bank, the corporate parent of Access. However, absent unusual circumstances - which Plaintiffs nowhere allege the corporate relationship between E’TRADE Bank and Access provides no basis to impose liability on E’TRADE Bank. Equally important, the ADA places duties only on entities that "own, operate or lease" a place of public accommodation; E’TRADE Bank does not own,

1 -NV/17477.2

operate or lease the ATMs at issue - all of which are owned and operated by third-party merchants that participate in the network.
Plaintiffs contend that E’TRADE Bank should be liable because its customers can use the ATMs. That theory contravenes the plain language of the statute, and would mean that every bank in the United States would be equally liable in this case, because all of their customers can use ATMs in Access’ network as well.
Accordingly, the Court should dismiss the Amended Complaint against E’TRADE Bank under Fed, R. Civ. P. 12(b)(6) because it fails to state a claim on which relief can be granted.
BACKGROUND I. THE DISPUTE
Consumers use ATMs to access bank accounts and make financial transactions remotely. ATMs typically are located in malls, stores, gas stations and other commercial establishments. Access maintains a network in which approximately l 5,000 ATMs participate nationwide. Amended Complaint ¶ 14.
Two types of ATMs participate in Access’s network: (1) "Access-Owned ATMs," a limited number of ATMs that Access has title to and operates; and (2) "MerchantOwned ATMs," a much larger number of ATMs that are owned and operated by the third-party merchant where the ATM is located. These independent merchants are responsible for all operations of the Merchant-Owned ATMs. Amended Complaint ¶¶ 15-16.
In November 2002, Plaintiffs sent a demand letter asserting that the ATMs that participate in the Access network "are inaccessible to the blind" under the ADA and Massachusetts law. Plaintiffs threatened Iitigation unless Access agreed to make all the ATMs

1-NV/17477.2

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participating in the network accessible by providing speech capability within two years. See Exhibit 1 hereto.
After a period of negotiations, the parties then reached a partiaI settlement in June 2003 regarding the Access-Owned A TMs only. Access agreed to retrofit all Access-Owned ATMs over a period of time to provide voice capability at those ATMs. Amended Complaint ¶ 15. No agreement was reached with respect to Merchant-Owned ATMs, leading to this lawsuit. II. E’TRADE ACCESS AND E’TRADE BANK
E’TRADE Bank is a federally-chartered savings bank that is a subsidiary of E’TRADE Group, Inc. E’TRADE Bank is considered a branchless bank. It offers all the customary banking services to its customers, such as checking accounts, savings accounts, money market accounts, and certificates of deposit; the only difference between E’TRADE Bank and other banks is that customers send in funds by wire or the mail, instead of visiting a branch. E’TRADE Bank’s deposit accounts are "insured by Federal Depositors Insurance Corporation to customers nationwide." See E’TRADE Group, Inc. Form 10-K for fiscal year ending December 31, 2002 at 72 (relevant portions attached as Exhibit 2 and available as http://www.sec.gov).-t
In May 2000, E’TRADE Group, Inc. acquired an Oregon corporation known as Capture Card Services, Inc. After the acquisition, the company was renamed E’TRADE Access, hac. Access is a subsidiary of E’TRADE Bank, but it is not a bank nor does it provide banking services. Rather, Access maintains an "ATM business" and maintains a "nationwide network of
This Court cart consider public records, such as state and federal agency filings, without converting this Rule 12 motion into a motion for summary judgment. See In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 19 (lst Cir. 2003); In re Mailman Steam Carpet Cleaning Corp., 196 F.3d 1, 6 n.2 (lst Cir. 1999).

] -NV/17477+2

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over 11,000 ATMs" throughout the United Stales. See State of Oregon Business Registry Database Search (attached as Exhibit 3 and available at http://sos-venus.state.or.us); E’TRADE Group, Inc. Form 10-K for fiscal year ending December 31, 2001 at 5, 11 & 101 (relevant portions attached as Exhibit 4 and available at http://www.sec.gov). IlL THIS ACTION
Plaintiffs filed this action on June 25, 2003, and filed an Amended Complaint on July 22, 2003. They assert that Access is violating the ADA by failing to provide speech capability at Merchant-Owned ATMs.-~ Access is today filing an Answer to the Amended Complaint denying each material allegation.
Plaintiffs did not only sue Access. Rather, Plaintiffs have also named E’TRADE Bank as a defendant, even though it does not own, operate or lease any ATMs. Plaintiffs allege that E’TRADE Bank "offers its banking services" through ATMs that participate in Access’ network. Amended Complaint ¶ 17.
ARGUMENT I. E’TRADE BANK DOES NOT OWN, LEASE OR OPERATE ATMS
Plaintiffs attempt to impose liability on E’TRADE Bank by asserting that it "offers its banking services" at ATMs that participate in the Access network. Amended Complaint ¶ I7. That allegation is insufficient to state a claim against E’TRADE Bank under the ADA.
The ADA imposes certain duties with respect to "a place of public accommodation." 42 U.S.C. § 12182. However, the statute does not place liability on every person or entity that has some relationship to the place ofpublic accommodation. Rather, the
Plaintiffs also assert two claims under Massachusetts law.

t-NV/17477.2

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ADA applies only to a person or entity that "owns, leases (or leases to), or operates" a place of public accommodation. Id. § 12182(a).
Because the ATMs at issue are owned or leased by independent merchants, Plaintiffs are contending that E’TRADE Bank somehow "operates" ATMs in the Access network because its customers can use their E’TRADE Bank ATM cards to make transactions at those ATMs. The ADA does not define the term "operate," and therefore the "ordinary and natural meaning" of the word governs. Smith v. United States, 508 U.S. 223,228 (1993).
Applying Smith, courts have defined "operate" to require a high degree of direct, daily control over the place of public accommodation:
¯ "to put or keep in operation" or "[t]o conduct the affairs of" or "manage," Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995);
¯ "to control or direct the functioning of and to conduct the affairs of," Emerson v. Thiel College, 296 F.3d 184, I89 (3d Cir. 2002);
Q "to put or keep in operation"; "to control or direct the functioning of," Guekenberger v. Boston Univ., 957 F. Supp. 306, 322 (D. Mass. 1997); "control over the operations of the licensee in any day-to-day fashion," Dahlenberg v. Avis Rent A Car Sys., Inc., 92 F. Supp. 2d 1091, 1102-03 (D. Colo. 2000).
E’TRADE Bank does not "operate" ATMs within the ordinary meaning of the word. E’TRADE Bank does not "put into operation" any ATMs. It does not "conduct the affairs" of any ATMs. It does not "manage" any ATMs. The individual merchants where the ATMs are located perform these daily functions - and the Amended Complaint does not allege otherwise. E’TRADE Bank is not an "operator" of the ATMs under the ADA. See Emerson, 296 F.3d at 188-89 (individual defendants did not direct the functioning of university); Neff, 58 F.3d at 1066 (individual franchisee operated individual Dairy Queen stores, not national franchisor corporation); Guckenberger, 957 F. Supp. at 322-23 (assistant to president of the

I-NW17477.2

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university did not exercise "authority, control, or discretion" necessary "to be deemed an operator of a place of public accommodation" under the ADA).
Plaintiffs’ assert that each ATM that participates in the Access network "displays the E’TRADE logo." Amended Complaint ¶ 18. That Access shares the same brand name as its parent is not unusual, and it does not change the ADA analysis. As discussed above, liability under the ADA turns on actual daily control over the operations of the public accommodation at issue. For that reason, Dairy Queen was not liable under the ADA in Neff for acts occurring at franchisee stores, even though store employees were required to wear Dairy Queen uniforms, and even though the stores were required to display Dairy Queen trademarks, because those facts did not show that Dairy Queen "controls modifications to the [franchisee’s] stores" to make them ADA-complaint. 58 F.3d at 1067. Similarly here, use of the E’TRADE logo on ATM’s in the Access network does not make E’TRADE Bank liable as a defendant under the ADA because the logo has no bearing whatsoever on actual operation and control of the ATMs themselves. Cf Gonzales v. Walgreens Co., 878 F.2d 560, 562 (lst Cir. 1989) (subsidiary’s use of common logo shared with parent did not make parent liable for injuries caused by subsidiary).
Plaintiffs’ argument - that E’TRADE Bank is liable because it allows its customers to make transactions at the ATMs - not only finds no support in the statute but also makes no practical sense. Hundreds of banks participate in the ATM network that Access maintains. Any account holder at one of those banks can use an Access ATM to conduct a financial transaction, just as E’TRADE Bank customers can. Under Plaintiffs’ theory, however, every one of these banks are liable under the ADA for conditions at the ATMs that participate in Access’s network - and at every other ATM network where their customers make transactions -

I-NVt17477.2

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because those banks "offer banking services" at the ATMs. No basis exists, in the statute, under the cases, or by plain logic, for such an expansive theory of liability. I1. PLAINTIFFS’ OWN ACTIONS CONFIRM THAT E’TRADE BANK DOES NOT
"OPERATE" ATMS UNDER THE ADA Plaintiffs’ attempt to impose liability on E’TRADE Bank violates basic principles
of corporate law and the plain language of the ADA. Plaintiffs’ own actions before litigation began confirm that they do not believe E’TRADE Bank has liability here.
As discussed above, the current dispute began in November 2002, when Plaintiffs sent a demand letter threatening litigation. Plaintiffs sent their letter to both Access and to E’TRADE Bank, asserting that Access and E’TRADE Bank "own and operate" thousands of ATMs nationwide. See Exhibit 1.
The parties settled their dispute as to Access-Owned ATMs in June 2003. However, despite their original demand to sue E’TRADE Bank, Plaintiffs did not require that E’TRADE Bank sign the parties’ Settlement Agreement. See Exhibit 5 hereto.-~ Moreover, Plaintiffs acknowledged that E’TRADE Bank is not an owner, operator or lessor of the ATMs. In Recital C, they "assert that the ATMs are operated and/or leased by Access." Id. at p. 1 (emphasis added). Plaintiffs had no obligation to include the Bank in the settlement agreement, but if they believed that E’TRADE Bank was subject to and violating the ADA, they surely should have done so.

The Court can consider the Settlement Agreement in connection with this Motion because Plaintiffs discussed it in their Amended Complaint (at ¶ 15), but failed to attach the document. In
re ColonialMortgage, 324 F.3d at 15.

1-NV/17477.2

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III. PLAINTIFFS CANNOT SUE E’TRADE BANK SIMPLY BECAUSE IT IS THE PARENT OF ACCESS Plaintiffs also cannot hold E’TRADE Bank liable on any other theory, such as its
relationship with Access. E’TRADE Bank is a bank that provides traditional banking services; Access is a separate company that maintains the ATM network about which the parties have a legal dispute. The corporate relationship between the two companies provides no basis to impose liability on the parent.
It is well-settled that "limited liability is a cornerstone of corporate law." DeBreceni v. GrafBros. Leasing, inc., 828 F.2d 877, 879 (lst Cir. 1987). Corporations are free to structure their operations into separate entities, and liability may not pass from a subsidiary to its parent so long as both maintain proper corporate formalities. United States v. Bestfoods, 524 U.S. 51, 61 (1998) ("It is a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation.., is not liable for the acts of its subsidiaries") (internal quotations omitted); Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 772-73 (1984) ("[A] corporation may adopt the subsidiary form of organization for valid management and related purposes ...a. business enterprise should be free to structure itself in ways that serve efficiency of control, economy of operations, and other factors").
To pierce the corporate veil, Plaintiffs would need to allege and show: (I) lack of corporate independence; (2) fraudulent intent; and (3) manifest injustice. United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1093 (lst Cir. 1992). However, the Amended Complaint nowhere alleges - nor could it - that any of these stringent factors exists here. No basis exists to impute the alleged actions of Access to its parent, E’TRADE Bank. See, e.g., Resolution Trust Corp. v. Driseoll, 985 F.2d 44, 48 (lst Cir. 1993) (dismissing complaint against parent because no facts alleged to support alter ego theory).

1-NV/17477.2

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CONCLUSION For these reasons, E’TRADE Bank respectfully requests that the Court grant its Rule 12 Motion and dismiss the Amended Complaint against E’TRADE Bank with prejudice.
Respectfully submitted,

Dated: September 12, 2003

BINGHAM McCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P. Lobel Joseph F. Yenouskas MORGAN LEWIS & BOCKIUS LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 918-1000
Counsel for Defendants E’TRADE Access, Inc. and E’TRADE Bank

I HEREBY CERTIFY T~T ATRUE COPY O, THE ABOVE DOCUMENT SERVED UPON THE ATTORNEY ~ RECO, FOR F.ACH OTHER PARTY

1 -NV/17477.2

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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS et al., Plaintiffs,
E’TRADE ACCESS, INC. et al., Defendants.

Case No. 03 11206 MEL

ANSWER AND AFFIRMATIVE DEFENSES OF E’TRADE ACCESS~ INC. Defendant E’TRADE Access, Inc. ("Access"), by undersigned counsel, responds to the Amended Complaint as follows: The allegations in Paragraph 1 state conclusions of law as to which no response is required. The allegations in Paragraph 2 state conclusions of law as to which no response is required. The allegations in Paragraph 3 state conclusions of law as to which no response is required. 4. Access lacks knowledge or information sufficient to form a belief as to the truth of the allegations in the first two sentences of Paragraph 4. The remaining allegations in Paragraph 4 state conclusions of law as to which no response is required. 5. Access lacks knowledge or information sufficient to form a belief as to the truth of the allegations in the sentences one, two, four, five and six of Paragraph 5. The

1 ~NV/17559.

allegations in sentence three of Paragraph 5 state conclusions of law as to which no response is required.
6, The allegations in the first sentence of Paragraph 6 state conclusions of law as to which no response is required. Access lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 6.
7. The allegations in the first sentence of Paragraph 7 state conclusions of law as to which no response is required. Access lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 7.
8. The allegations in the first sentence of Paragraph 8 state conclusions of law as to which no response is required, Access lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 8.
9. The allegations in the first sentence of Paragraph 9 state conclusions of law as to which no response is required. Access lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 9.
10. The allegations in the first sentence of Paragraph 10 state conclusions of law as to which no response is required. Access lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 10.
11. The allegations in Paragraph 11 state conclusions of law as to which no response is required.
12. The allegations in Paragraph 12 state conclusions of law as to which no response is required,
13. The allegations in Paragraph 13 state conclusions of law as to which no response is required.

I-NV/17559A

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14. Access denies the allegations in Paragraph 14. 15. Access denies the allegations in the first two sentences of Paragraph 15. Access admits on June 9, 2003 it signed a partial settlement agreement with the Commonwealth of Massachusetts and the National Federation of the Blind, the content of which speaks for itself. 16. Access denies the allegations in Paragraph 16. 17. Access denies theallegations in Paragraph 17. 18. Access denies theallegations in Paragraph 18. 19. Access denies theallegations in Paragraph 19. 20. The allegations inParagraph 20 state conclusions of law as to which no response is required. 21. The allegations in Paragraph 21 state conclusions of law as to which no response is required. 22. Access denies the allegationisn Paragraph 22. 23. Access denies the allegationisn Paragraph 23. 24. Access denies the allegationisn Paragraph 24. 25, Access denies the allegationisn Paragraph 25. 26. Access denies the allegations in Paragraph 26. 27. The allegations in Paragraph 27 state conclusions of law as to which no response is required, 28. The allegations in Paragraph 28 state conclusions of law as to which no response is required. 29. Access lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 29.

1-NV/17559.!

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30. The allegations in Paragraph 30 state conclusions of law as to which no response is required.
31. Access incorporates its responses to Paragraphs 1-30 by reference as if fully set forth herein.
32. The allegations in Paragraph 32 state conclusions of law as to which no response is required,
33. The allegations in Paragraph 33 state conclusions of law as to which no response is required,
34. The allegations in Paragraph 34 state conclusions of law as to which no response is required.
35. Access incorporates its responses to Paragraphs 1-34 by reference as if fully set forth herein.
36. The allegations in Paragraph 36 state conclusions of law as to which no response is required.
37. The allegations in Paragraph 37 state conclusions of law as to which no response is required.
38. Access incorporates its responses to Paragraphs 1-37 by reference as if fully set forth herein.
39. The allegations in Paragraph 39 state conclusions of law as to which no response is required.
40. The allegations in Paragraph 40 state conclusions of law as to which no response is required.

1-NV/17559.1

4

41. Access incorporates its responses to Paragraphs 1-40 by reference as if fully set forth herein.
42. The allegations in Paragraph 42 state conclusions of law as to which no response is required.
43. The allegations in Paragraph 43 state conclusions of law as to which no response is required.
44. Access incorporates its responses to Paragraphs 1-43 by reference as if fully set forth herein,
45. The allegations in Paragraph 45 state conclusions of law as to which no response is required.
46. The allegations in Paragraph 46 state conclusions of law as to which no response is required.
47. The allegations in Paragraph 47 state conclusions of law as to which no response is required.
48. Access incorporates its responses to Paragraphs 1-47 by reference as if fully set forth herein.
49. The allegations in Paragraph 49 state conclusions of law as to which no response is required.
50. The allegations in Paragraph 50 state conclusions of law as to which no response is required.
51. The allegations in Paragraph 51 state conclusions of law as to which no response is required.

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52. Access incorporates its responses to Paragraphs 1-51 by reference as if fully set forth herein.
53. The allegations in Paragraph 53 state conclusions of law as to which no response is required.
54. The allegations in Paragraph 54 state conclusions of law as to which no response is required.
55. The allegations in Paragraph 55 state conclusions of law as to which no response is required.
AFFIRMATIVE DEFENSES FIRST DEFENSE
Access does not own, operate or lease the ATMs at issue. SECOND DEFENSE
The ATMs at issue are not places of public accommodation. THIRD DEFENSE
Plaintiffs lack standing. FOURTH DEFENSE
Plaintiffs failed to exhaust required administrative remedies. FIFTH DEFENSE
Plaintiffs are not entitled to actual or punitive damages. SIXTH DEFENSE
Plaintiffs claims are barred by the statute of limitations. SEVENTH DEFENSE
Plaintiffs have failed to state a claim upon which relief can be granted.

1-NV/17559.1

- 6 -

EIGHTH DEFENSE Plaintiffs did not request a "reasonable modification" of any "policies, practices and procedures" under 42 U.S.C. § 12182(b)(2)(A)(ii).
NINTH DEFENSE Requiting Access to ensure the ATMs at issue have audio capabilities would be an uadue burden under 42 U.S.C. § 12182(b)(2)(A)(iii) and applicable state law.
TENTH DEFENSE Access did not fail to remove a "communication barrier that [is] structural in nature" under 42 U.S.C. § 12182(b)(2)(A)(iv).
ELEVENTH DEFENSE The removal demanded by Plaintiffs under 42 U.S.C. § 12182(b)(2)(A)(iv) is not "readily achievable."
TWELFTH DEFENSE Access has not violated the Americans with Disabilities Act Accessibility Guidelines, which apply only to certain ATMs.
THIRTEENTH DEFENSE Plaintiffs were not denied any fights on the basis of their disability and good cause exists for any actions taken by Access.

1-NV/17559.1

- 7 -

WHEREFORE, Defendant E’TRADE Access, Inc. respectfully requests that this

Court:

1. dismiss with prejudice all claims against Access; 2. enter judgment in favor of Access; 3. award Access its reasonable attorney’s fees and costs pursuant to 42

U.S.C. §§ 12188 & 2000a-3(b); and 4. grant such other relief as the Court deems just and proper.

Dated: September 12, 2003

~6360)
Rachael Splaine Rollins (BBO# 641972) B1-NGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 95 l-S000 (617) 951-8736 (fax)
Douglas P. Lobel Joseph F. Yenouskas MORGAN LEWIS & BOCgdUS LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 918-1000 (703) 918-1999 (fax)
Counsel for Defendants E’TRADE Access, Inc. and E’TRADE Bank
~;ERTIIF(CATE OF SERVICE HEREBY CERTFY THAT A TRUE COPY OF THE ~OVE DOCOMEN’T

I-NV/17559,1

-8-

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et al.
Plaintiffs,

C.A. No. 03-11206-MEL

E’TRADE ACCESS, INC. et at., Defendants.
CONSOLIDATED OPPOSITION OF PLAINTIFFS TO E’TRADE BANK’S MOTION TO DISMISS1 INTRODUCTION
As to E’TRADE Bank ("the Bank"),2 the Amended Complaint ("Complaint" or "Am. Compl.") alleges well-pleaded facts clearly sufficient to support three different theories of liability:
(1) E’TRADE Bank is a public accommodation that offers banking services that discriminate on the basis of disability in violation of the Americans with Disabilities Act ("ADA") and the Massachusetts Public Accommodations Act;
(2) E’TRADE Bank’s services, including those offered at Automated Teller Machines ("ATM’s"), are programs or activities of E’TRADE Bank within the Common~vealth
~ Plaintiff Commonwealth of Massachusetts is represented by the Attorney General. Plaintiffs National Federation of the Blind, its Massachusetts affiliate and four individual blind persons have separate representation. Where, as here, the interests of the Plaintiffs are identical and the challenge is to a pleading authored jointly by the Plaintiffs, Plaintiffs will ordinarily file consolidated pleadings and responses. 2 E’TRADE Access, Inc. ("Access" or "E’TRADE Access"), the other Defendant, has filed an Answer to the Amended Complaint.

that are offered on a discriminatory basis in violation of Article 114 of the

Amendments to the Massachusetts Constitution and the Massachusetts Equal Rights

Act; and

(3) E’TRADE Bank discriminatorily "owns, operates or leases" ATM’s that are

themselves public accommodations under the ADA and the Massachusetts Public

Accommodations Act.

E’TRADE Bank fails to address the first two theories of liability, utterly forgoing any

argument that the allegations underlying those theories fail to state claims upon which relief may

be granted. On that basis alone the Court should deny E’TRADE Bank’s motion. As to the

third theory of liability, E’TRADE Bank blithely invites the Court to find, contrary to the

allegations of the Complaint, that it does not own, operate or lease the ATM’s bearing the

E’TRADE logo. Long-established and familiar federal jurisprudence governing motions to

dismiss provides that "[i]n ruling upon a 12(b)(6) motion, the Court must accept all well-pleaded

facts alleged in the Complaint as true and draw all reasonable inferences in favor of the

plaintiff." Day v. Fallon Cmty. Health Plan, Inc., 917 F. Supp. 72, 75 (D. Mass. 1996). Because

Plaintiffs allege facts which, if proven, could lead to a finding of liability against E’TRADE

Bank, the motion to dismiss should be denied. See Kling v. Fidelity Mgmt. Trust Co., 270 F.

Supp. 2d 121 (D. Mass. 2003).

ARGUMENT

Ao

E’TRADE Bank is a Public Accommodation that Discriminates in the Offering of

Banking Services in Violation of the ADA.

E’TRADE Bank is a federally chartered bank that offers banking services. Am. CompI. ¶12. E’TRADE Bank offers certain banking services without fees to its account holders only through ATM’s that display the E’TRADE logo. These services include the withdrawal of funds

and the making and verification of deposits. Am. Compl. ¶¶12, 17-18. As explained in Defendant’s Exhibit 4,3 E’TRADE Bank
is the nation’s largest Internet bank and offers a full suite of consumer banking products and services. The Bank delivers these products and services through non-traditional means--the Internet, telephone and ATMs--and thus eliminates many of the costs associated with brick-and-mortar branches. ATM’s aside, E’TRADE Bank is indeed a "branchless bank." Mere. of Law in Supp. of
E’TRADE Bank’s Rule 12(b)(6) Mot. to Dismiss for Failure to State a Claim ("Def. Mere.") at
3. But even though these ATM’s constitute E’TRADE Bank’s only physical presence, they are
not independently accessible to the blind. Am. Compl. ¶16. Thus, blind persons who become
E’TRADE Bank account holders may not avail themselves of E’TRADE Bank’s banking
services as sighted customers may--through the independent use of E’TRADE ATM’s.
By alleging that E’TRADE Bank offers banking services to its sighted account holders
that are inaccessible to blind account holders, the Plaintiffs have pied sufficient facts to support a
claim under Title III of the Americans with Disabilities Act. Under Title III of the ADA,
E’TRADE Bank is itself a public accommodation, 42 U.S.C. § 1218 l(7)(F), and the Complaint
clearly identifies E’TRADE Bank as a public accommodation offering banking services. See,
e.g., Am. Compl. ¶¶12, 17, 20, 33, 40, 42, 43 and 45. As such, E’TRADE Bank may not deny
someone its banking services on the basis of that person’s disability. See 42 U.S.C.
§ 12182(b)(1)(A)(i). That same statutory provision makes clear that the Bank is not relieved of
liability simply because it provides those services through contractual, licensing or other
~ E’TRADE Bank has attached five exhibits to its Motion to Dismiss, including some Form 10K’s filed with the SEC by a nonparty--E*TRADE Group, Inc. E’TRADE Bank asserts that the Court may consider these exhibits without its motion being converted to a Motion for Summary Judgment. Generally, on a motion to dismiss, a court should not consider documents unless they are incorporated into the complaint, although under some circumstances a court may consider a document (1) whose authenticity is undisputed, (2) that is a public record, (3) that is central to the claim, or (4) that is sufficiently described in the cotnplaint. See Kling, 270 F. Supp. 2d at 127-28. Plaintiffs have no way of knowing, without the benefit of having taken discovery, whether the information contained in the Form 10K’s is truthful and accurate. Nonetheless, Plaintiffs do not object to the Court considering those exhibits in

arrangements. Id. Thus, even if E’TRADE Bank does not own, lease or operate the E’TRADE ATM’s through which it provides those services, but instead contracts or has other arrangements with E’TRADE Access to provide those services, E’TRADE Bank does not thereby escape culpability. The statute clearly imposes on a public accommodation a nondelegabte duty to offer its services without discrimination. Because the Complaint alleges facts sufficient to support a cognizable legal theory, E’Trade Bank’s motion to dismiss must be denied. See 5A Wright & Miller, Federal Practice & Procedure. Civil 2d,~1357 at 340 (Supp. 2003).
E’TRADE Bank does not dispute its status as a public accommodation and, indeed, addresses its liability under this theory in only a glancing fashion. Specifically, it asserts that account holders with hundreds of banks may use E’TRADE Access ATM’s without fees and that, under Plaintiffs’ theory, all of these banks are potentially liable under the ADA. Def. Mere. at 6. Not only does E’TRADE Bank fail to cite any legal authority supporting its contention that such liability would be unduly "expansive," but the factual premise underlying this argument is not contained in the Complaint, is not supported by any of the Exhibits submitted by E’TRADE Bank and, therefore, cannot properly be considered by the Court. In any event, the potential liability of actors other than E’TRADE Bank is irrelevant to the issue before the Court. Because the Plaintiffs have alleged that E’TRADE Bank offers its customers the opportunity to withdraw money from E’TRADE Bank accounts and engage in other banking transactions at E’TRADE ATM’s without fees - services that are unavailable to blind customers - they have stated a claim against E’TRADE Bank under the ADA, whether or not E’TRADE Bank is alone in its wrongdoing.
the context of this motion to dismiss, but they reserve their right to challenge the truthfulness of their contents at later stages of the case.
4

E’TRADE Bank Offers a Discriminatory Program or Activity in Violation of the Massachusetts Equal Rights Act.
Although E’TRADE Bank acknowledges that it has been sued under the Massachusetts
Equal Rights Act ("MERA"), Mass. Gen. Laws ch. 93, § 103, see Def. Mere. at 4, n.2, it has not
argued - nor could it - that Plaintiffs have failed to state a claim for relief under this statute.
Count VII of the Complaint alleges that blind people are excluded from participation in and the
benefits of the banking services offered by E* TRADE Bank at E’TRADE ATM’s, in violation
of Article 114 of the Amendments to the Massachusetts Constitution. Article 114, which is
incorporated into MERA, provides:
No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth.
Mass. Const. Art. Amend. 114. Neither MERA nor Article 114 is limited to the activities of public accommodations and their reach is decidedly broader than that of the ADA.4 See
Guckenberger v. Boston Univ., 957 F.Supp. 306, 324 (D. Mass. 1997) (noting that Article 114
"appears to sweep broadly, securing the right of handicapped persons against discrimination...
perpetrated by any private person or entity") (citations and internal quotations omitted). Thus,
even assuming that E’TRADE Bank’s argument that it does not own, operate or lease
E’TRADE ATM’s could warrant the dismissal of the Plaintiffs’ ADA claims, there is no question that Count VII of the Complaint states a claim under MERA.s
4 That the resolution of issues under the ADA would not determine the claim under the Massachusetts Equal Rights Act was brought to the Defendants’ attention in their unsuccessful attempt to sue for declaratory relief in the Eastern District of Virginia. See Reply to Plaintiffs Opposition to Defendant’s Mot. to Dismiss (without exhibits), at Consolidated Opp. of Plaintiffs to E’TRADE Bank’s Mot. to Dismiss ("Opp.") Ex. I at 8. 5 If E*TP,_ADE Bank had an argument for the dismissal of Count VII, it should have made that argument in support of its Motion to Dismiss. It should not address it in the Reply Brief for the first time. "The purpose of the reply

C. E’TRADE Bank May Not, on a Motion to Dismiss, Controvert Plaintiff’s WellPleaded Allegations that it "Owns, Operates or Leases" E’TRADE ATM’s.
ATM’s are also themselves public accommodations. Those who own, operate or lease ATM’s or lease ATM’s to public accommodations are liable under the ADA if those with disabilities are denied the full and equal enjoyment of the ATM’s. 42 U.S.C. §12182(a). The Complaint not only clearly alleges that E’TRADE Bank operates the E’TRADE ATM’s, but gives a source for that allegation, noting that E’TRADE Bank proudly trumpets on its website, "We operate the second largest network of ATMs in the United States." Am. Compl. ¶17; see also Opp. Ex. 2.6
In the First Circuit, as elsewhere, the Court must "take the factual averments contained in the complaint as true, indulging every reasonable inference helpful to the plaintiff’s cause." Garita Hotel Ltd. P ’ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1 ~L Cir. 1992). The Court is neither to weigh the evidence nor to rule on the merits. See Vartanian v. Monsanto Co., 14 F.3d 697,700 (1st Cir. 1994). A plaintiff need not even state aprimafacie claim; rather, the complaint survives a motion to dismiss if it gives the defendant fair notice of what the claim consists and the facts on which it relies. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002).
Defendant’s sole ground for moving to dismiss, however, is the assertion that, contrary to the allegations of the Complaint (and its own claim to the world on its web site), E’TRADE Bank does not own, lease or operate the ATM’s. Def. Mem. at 4-7. With high passion, but also with no record basis, it declares that it does not ’"operate’ ATM’s within the ordinary meaning
brief is to respond directly to matters raised in the response brief and not to introduce new factual or legal arguments." Ace Novelty Co., Inc. v. Vij’ukEquipment, Inc., No. 90 C 3116, 1991 WE 150191 at * 4 (N.D. Ill. July 31, 1991) (striking reply brief that included arguments not raised in opening brief). 6 As noted by E’TRADE Bank, documents referred to in the Plaintiffs’ Complaint may be considered by the Court on a Motion to Dismiss. Def. Mem. at n.1; Kting, 270 F.Supp. 2d at 127-28.

of the word." Def. Mere. at 5. Interestingly, E’TRADE Bank does not assert that in using the word "operate" on its web site it intended it to be understood in any way other than its ordinary meaning, nor does it assert that its web page makes a false representation. Seemingly, it just ignores the web site quoted in the Complaint. Most of all, E’TRADE Bank does not address why its motion is consuming the time and energy of the parties and the Court when few things are clearer in federal practice than that it is improper to premise a Rule 12(b)(6) motion on a claim that the allegations of the Complaint are false. See Day, 917 F. Supp. at 75.
To add insult to Plaintiffs’ injury in having to respond to an unfounded motion, E’TRADE Bank asserts that "Plaintiffs’ own actions before litigation began confirm that they do not believe E’TRADE Bank has liability here." Def. Mem. at 7. The basis for this serious charge turns out to be nothing more than that E’TRADE Bank was not a party to the settlement agreement governing the machines owned outright by E’TRADE Access. Id. E’TRADE Bank cannot make such a charge and then complain when it is answered. So the Court should now know what E’TRADE Bank well knows: the Plaintiffs sought to include E’TRADE Bank in the settlement and were rebuffed. See Opp. Ex. 3.
It is axiomatic that in a negotiation neither party gets all it wants. In this instance, it is not clear that Plaintiffs could have persuaded E’TRADE Bank to join the settlement, and, if so, at what price, nor is it apparent what Plaintiffs, by insisting that E’TRADE Bank join the settlement, would have accomplished that they did not achieve without its participation. To use such a thin reed on which to rest the weighty charge that Plaintiffs knowingly made false allegations bodes ill for the course Defendants will choose to follow in litigating this case.
Plaintiffs allege that E*TILADE Bank owns, operates and/or leases the E’TRADE ATM’s. They have a solid and demonstrably good faith basis for so alleging, and on a motion to

dismiss, the Court must take the allegations of the Complaint as true. Thus, on the one theory in the Complaint as to which E’TRADE Bank articulates a challenge, its challenge must fail.7
D. Plaintiffs Oppose E’TRADE Bank’s Request for a Hearing and Ask for a Prompt Decision and Scheduling Conference.
E’TRADE Bank has requested a hearing on its Motion to Dismiss, a motion premised entirely on its factually unsupported claim that it is untrue that the Bank "operates" the E’TRADE ATM’s. Yet even as this pleading is filed, E’TRADE Bank continues to announce to the world through its web site what it denies to this Court -- that it operates the second largest ATM fleet in America. Dismissal would require this Court to jettison basic Rule 12(b)(6) jurisprudence, since E’TRADE Bank’s request simply cannot be reconciled with wellestablished legal standards. Moreover, E’TRADE Bank ignores entirely the additional bases for liability articulated in the Complaint. Under these circumstances, it is difficult to imagine what there is about the Motion and the Plaintiffs’ Opposition that calls for further clarification at oral argument, but it is clear that a hearing would only occasion further undue delay.
The Plaintiffs filed this case on June 25, 2003. The Defendants declined to file a responsive pleading to the Amended Complaint under Rule 12 while they pursued a declaratory judgment action in the Eastern District of Virginia that was ultimately dismissed as a "textbook example of forum shopping." Opp. Ex. 4 at 11-12. Once discovery does begin in this case, review of the volume of documents necessary to the proof of this claim will no doubt consume many hours. Plaintiffs respectfully request that the Court avoid further delay, decide the motion to dismiss on the pleadings and promptly convene a scheduling conference.
~ E’TRADE Bank also reviews at some length the case law applicable to piercing the corporate veil to hold a parent liable for the actions of its subsidiary, Plaintiffs have made specific allegations against E’TRADE Bank; they have not yet discovered nor have they alleged in the Complaint any facts that address a theory of vicarious liability.

CONCLUSION

Wherefore, Plaintiffs respectfully request that the Motion to Dismiss be denied. Respectfully submitted,

COMMONWEALTH OF MASSACHUSETTS, By its attorneys,

NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAINTIFFS, By their attorneys,

Patricia Correa, BBO No. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General
One Ashburton Place Boston, MA 02108
(617) 727-2200, ext. 2919

Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak & Cohen 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

Dated: September 30, 2003

Daniel F. Goldstein (admission pending) Sharon Krevor-Weisbaum (admission pending) Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030

9

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30th day of September, 2003, I served the within document by mailing a copy of same, postage prepaid to the following counsel of record:

Patricia Correa, Esq. Assistant Attorney General Director, Disability Rights Project Office of the Attorney General
One Ashburton Place Boston, MA 02108 Attorney for Plaintiff Commonwealth of Massachusetts

Joseph L. Kociubes, Esq. Bingham MeCutchen, LLP 150 Federal Street Boston, MA 02110 Attorney for Defendants E’Trade Access, Inc. and E’Trade Bank

Anthony M. Doniger, Esq. Christine M. Netski, Esq. Sugarman, Rogers, Barshak &
Cohen, P.C.
101 Merrimac Street Boston, MA 02114-4737 Attorneys for Plaintiffs National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts,
Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esq. Joseph F. Yenouskas, Esq. Morgan, Lewis & Bockius LLP 1600 Tysons Boulevard Suite 1200 McLean, VA 22101 Attorneys for Defendants E’Trade Access, Inc. and E’Trade Bank

Daniel F. Goldstein, Esq. Sharon Krevor-Weisbaum, Esq. Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 Attorneys for Plaintiffs National Federation of the Blind, Inc., National Federation oRfitchhe aBrldindDoof wMnasss,acThhuseertetss, aInJc.e,rAadldrieinannedAsPchhilip Oli~//~ ~(~~.,..~

Christine M. Netskit !

10

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS et al., Plaintiffs,
E’TRADE ACCESS, INC. et al., Defendants.

No. 03 11206 MEL

REPLY BRIEF IN SUPPORT OF E’TRADE BANK’S MOTION TO DISMISS In its Motion to Dismiss, E’TRADE Bank attached public SEC filings showing that E’TRADE Bank does not own, operate or lease any of the ATMs at issue in this lawsuit, a fundamental requirement under the Americans with Disabilities Act ("ADA"). E’TRADE Bank also explained that Plaintiffmay not impose liability on E’TRADE Bank based on actions of its subsidiary, defendant E’TRADE Access, Inc.~Plaintiffs cannot challenge either assertion, but instead advance a series of flawed arguments to keep E’TRADE Bank in the case, Each argument is not supportable, as discussed below.

Plaintiffs first assert that this Court "must accept" the allegations of the Amended Complaint, which states that E’TRADE Bank owns, operates and leases ATMs. Opposition at 2. Plaintiff are incorrect. As their own authority makes clear, however, this Court need only accept
E’TRADE Access, Inc. filed an Answer on September 12, 2003.
1 ~NV/18759.2

"well-pleaded facts" in a complaint in deciding a Rule 12 Motion. Day v. Fallon Community Health Plan, Inc., 917 F. Supp. 72, 75 (D. Mass. 1996) (emphasis added). The Court cannot and should not accept "bald assertions," Massachusetts School of Law at Andover, Inc. v. American Bar Association, 142 F.3d 26, 40 (lst Cir. 1998), nor "unsupportable conclusions." McDonald v. Commonwealth of Mass., 901 F. Supp. 471,476-77 (D. Mass. 1995).
Plaintiffs’ conclusory allegation that E’TRADE Bank owns, operates and leases ATMs is a classic example of an allegation that is not well pleaded. Public SEC filings explain that E’TRADE Access, Inc. -- not E’TRADE Bank -- offers services through the ATM network at issue in this case, and Plaintiffs concede that the Court can consider these public filings in deciding this Motion. Opposition at pp. 3 n.3 & 6 n.6. Under these circumstances, the case law makes clear that Plaintiffs cannot bring a lawsuit against E’TRADE Bank based on allegations that are demonstrably incorrect. Chief Justice Cushing Highway Corp. v. Limbacher, 145 F. Supp. 2d 108, 110 (D. Mass. 2001) (public documents control over inconsistent allegations); In re Peritus Software Serv., Inc. Sec. Litig., 52 F. Supp. 2d 211 (D. Mass. 1999) (dismissing case based on SEC filings); Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2, 9 (2d Cir. 1996) (SEC filings contradicted plaintiffs’ allegations); In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357,368 n.9 (3d Cir. 1993) (stone).z
iI. Next, Plaintiffs try to impose liability as follows: "E’TRADE Bank proudly trumpets on its website, ’We operate the second largest network of AYMs in the United States.’"
See also Sedighim v. Donaldson, LuJkin & Jenrette, Inc., 167 F. Supp. 2d 639, 646 (S.D.N.Y. 2001) (if allegations conflict with plain language of public documents, "the disclosure documents control"); Collier v. Township of Cicero, No. 98 C 8071, 1999 WL 1046414, *3 (N.D. Ill. Nov. 10, 1999) (dismissing lawsuit because public records trump allegations of complaint).

I-NV/18759+2

2

Opposition at 6. The page that Plaintiffs attach does not support the statement in their brief, however. It nowhere identifies the E’TRADE entity that offers ATM network services, but
rather refers to "E’TRADE Financial," the parent company of both E’TRADE Bank and
E’TRADE Access, Inc. Furthermore, Plaintiffs fail to provide the Court with the key section of the
E’TRADE website. See Exhibit l attached hereto. This page -
describes the different E’TRADE entities in the E’TRADE Financial group;
explains that E’TRADE Bank is an "Internet bank" that accepts federallyinsured deposits;
¯ states that E’TRADE Access, Inc. provides services to "a nationwide branded ATM network in 48 states" and is "the nation’s largest off-premise ATM network providing a turnkey solution for a growing number of consumerbased businesses"; and
¯ informs the reader that "[b]y simply entering a zip code, users are provided with the location of the nearest E’TRADE Access ATM.".3-
E*TRADE’s website reflects the company’s SEC filings, and further shows that, if Plaintiffs
have a case at all, it is against E’TRADE Access, Inc., not E’TRADE Bank.
I11. Without citing any authority, Plaintiffs also attempt to hold E’TRADE Bank liable by alleging that "blind persons who become E’TRADE Bank account holders may not avail themselves orE*TRADE Bank’s banking services as sighted customers may - through the independent use of E’TRADE ATMs." Opposition at 3. This argument distorts the plain
language of the ADA and confuses two statutory terms.
Because Plaintiffs attached one page of the E’TRADE website to their Opposition, the Court may consider other pages from the site without converting this Rule 12 Motion into a Motion for Summary Judgment. See Cogan v. Phoenix Life Ins. Co., 310 F.3d 238, 241 n.4 (lst Cir. 2002).

1TNV/L 8759.2

3

The ADA defines a list of various types of businesses, such as hotels, banks and stores, that constitute a "public accommodation." 42 U.S.C. § 12181 (7)(0. However, an entity is not liable under the ADA merely because it is a "public accommodation." Rather, the ADA imposes liability only if a defendant "owns, leases.., or operates" a "place of public accommodation" at issue. 42 U.S.C. § 12182(a) (emphasis added). See also Guckenberger v. Boston Univ., 957 F. Supp. 306, 321-23 (D. Mass. 1997) (ADA liability depends on whether the defendant "owns, leases.., or operates" the place of public accommodation); Sanchez v. ACAA, 247 F. Supp. 2d 61, 67 (D,P.R. 2003) (necessary element of ADA claim is that the defendant be "a private entity that owns, leases, or operates a place of public accommodation").
Theplaces of public accommodation at issue in this case are A TMs, not E’TRADE Bank. Plaintiffs seek to "make accessible the existing and newly installed A TMs" throughout the United States. Amended Complaint ¶ 1. See also Amended Complaint ¶¶ 7, 28 (plaintiff Adrienne Asch "would like to use the A TMs’; "The only effective means to make E’TRADE-operated ATMs accessible is through voice guidance technology"). Thus, the appropriate defendant in this case must "own, lease.., or operate" the "place of public accommodation" at issue - here, the ATMs that Plaintiffs allege must be made accessible to the blind. Because E’TRADE Bank does not (as described above) own, operate or lease those ATMs, it cannot be held liable for conditions at the ATMs under the ADA.
IV. Finally, Plaintiffs argue that they can maintain a claim against E’TRADE Bank under the Massachusetts Equal Rights Act ("MERA"), which prohibits discrimination against handicapped persons. However, the interpretation of state disability law goes "hand in hand" with interpretation of federal disability laws. Lesley v. Chic, 81 F. Supp. 2d 217, 226 (D. Mass.

1 -NV/18759.2

4

2000). The MERA, just like the ADA, does not impose unbounded liability on any entity that may be related to a dispute in some tangential fashion. Rather, only a party "continuing or carrying out" the discriminatory conduct is potentially liable for a violation of MERA. See Guekenberger, 957 F. Supp. at 324 (University officials liable because they set and enforced the discriminatory policy).
Plaintiffs fail to meet this basic, commonsense requirement. The Amended Complaint nowhere alleges that E’TRADE Bank had any role in deciding whether to provide speech capability at ATMs, or continued that policy. Plaintiffs’ pre-litigation conduct is fully consistent: when they resolved one portion of this dispute, they signed a Settlement Agreement with E’TRADE Access, Inc. alone, and omitted E’TRADE Bank. Motion to Dismiss at 7. In short, no MERA claim is possible because E’TRADE Bank did not continue or carry out in any way the conduct that Plaintiffs challenge in this lawsuit.
CONCLUSION For these reasons, and those set forth in its Motion to Dismiss, E’TRADE Bank respectfully requests that the Court dismiss the Amended Complaint against E’TRADE Bank under Rule 12(b)(6) for failure to state a claim on which relief can be granted.
REOUEST FOR ORAL ARGUMENT E’TRADE Bank respectfully renews its request for oral argument contained in its Motion to Dismiss.

1 -NW18759,2

5

Dated: October 10, 2003

Respectfully submitted,
~kk-~. Ko~iu-’b-~ fi1~O#~2~636~
Rachael Splaine Rollins BBO# 64t 1972 B1NGHAM McCUTCHEN LLP 150 Federal Street Boston, MA 021 I0 (617) 951-8000 (617) 951-8736 (fax)
Douglas P. Lobel Joseph F. Yenouskas MORGAN LEWIS & BOCKIUS LLP 1600 Tysons Boulevard McLean, VA 22102 (703) 918-1000 (703) 918-1999 (fax)
Counsel for Defendants E’TRADE Access, Inc. and E’TRADE Bank
CERTIFICATE OF SERVICE I I’tEREBY CERTIP/"tHAT A YRU~ COPY OF THE ABOV~ IX)CUMENT WAS ~0 U~N THE A~ORNEY ~ RE~ FOR ~H OTHER PARTY
Oot. ,10,

1 -NV/18759.2

6

 
 UNITED STATES D1STRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS et al., Plaintiffs,
E’TRADE ACCESS, INC. et al., Defendants.

Case No. 03 11206 MEL

DEFENDANT E’TRADE BANK’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Pursuant to the Court’s December 16, 2003 request, E’TRADE Bank (the "Bank") respectfully submits this supplemental brief concerning the two issues the C~:~urt identified: (1) the applicability of Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler’s A:i~ ’n of New England, Inc., 37 F.3d 12 (lst Cir. 1994) ("Carparts"); and (2) "whether liability un.:ter Title III of the ADA may attach to E’TRADE Bank, Inc. itself, apart from any ownersl@, operation, or leasing of the ATMs at issue in this action." I. CARPARTS IS INAPPLICABLE BECAUSE IT DOES NOT
ADDRESS THE PLAINTIFFS’ THEORY OF LIABILITY Carparts does not address the ADA violation Plaintiffs allege: a
nondiscriminatory service offered through an allegedly discriminatory third-party "medit.~n." Rather, Carparts holds that the ADA prohibits discriminatory services even if they are prov: ,:ted through mediums like telephones or messenger services. Carparts is inapplicable to Plainti.ITs’ claim because the Bank’s services themselves are not discriminatory; for example, the Bank does not have different interest rates or fees for blind customers. The Plaintiffs argue that the E.mk

VA 723213 4.DOC

nonetheless violates the ADA because customers obtain the Bank’s services by usin~ an allegedly discriminatory medium (ATMs) that a third party controls. Nothing in Carp,:~rts addresses a defendant’s liability for third-party discrimination, but other courts recognize that the ADA does not impose liability on entities like the Bank that "merely contract with someone ",~,~ho ultimately may be subject to Title III." Bowers v. National Collegiate Athletic Ass ’n, 9 F. Sl.~pp. 2d 480, 481 (D. N.J. 1998).
A. Carparts Merely Holds That The ADA Prohibits Discriminatory Services That Are Not Provided At A Physical Location In Carparts, the First Circuit held that Title III covers a complaint alleging I:hat
the defendant’s insurance services were discriminatory because they limited insurance ben,:.: fits for AIDS-infected customers. Whereas other customers had $1 million in annual insuraace benefits, the insurance company capped annual AIDS-related benefits at $25,000.
The First Circuit held that the defendant’s insurance services qualified a~ a "public accommodation" because that term in Title III includes services provided not only at physical facilities, but also "by mail and phone" or "through telephone lines, messengers or s.~~’me other medium." Carparts, 37 F.3d at 19-20 (emphasis added). The complaint stated a ,~alid ADA claim because it alleged that the terms of the insurance services discriminated ag~.inst AIDS patients. However, Carparts did not say that services are themselves discriminatory u~:~ der the ADA where the discrimination is caused by the inaccessible medium used to provide the services -- such as a post office, telephone, or messenger service. For example, Carparts does not say that the insurance company would be liable under the ADA if a messenger delivering insurance documents, such as FedEx, refused to enter an AIDS patient’s home.

VA_723213_4.DOC

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B. Carparts Does Not Apply Because Plaintiffs Allege Discrimination At A Third-Party "Medium" Through Which One Obtains Banking Services Unlike in Carparts, the Plaintiffs here are not alleging that the Bank i:~i;etf
imposed conditions on its service offerings -- for example, higher rates, fees or charges -- ~:hat discriminated against blind customers. Instead, the Plaintiffs are alleging that the discriminalion is caused by the "medium" (an ATM) through which blind customers could obtain the Ba::k’s services. This alleged discrimination is caused solely by practices of a third party -- allegedly, E’TRADE Access -- that the Bank does not control and for whom the Bank is not dire..,::tly responsible.1 No matter how Plaintiffs describe their case, the unavoidable thrust of llieir Complaint is that the A TMs themselves are not accessible to blind people. Plaintiffs ca~lnot describe any facet of the Bank’s services that are discriminatory without mentioning the alk::!,~ed defect in ATMs; any allegedly disparate impact of the Bank’s services on blind people w~:~uld result solely from the alleged inaccessibility of third parties’ ATMs. Because the ATMs are not in any way controlled by the Bank and the Plaintiffs have not raised any claims about alk’.:i,~ed discrimination in "banking services," no part of the Carparts analysis applies to this lawsuit.
Carparts in no way alters the fundamental rule that a defendant like the 17, :ink cannot be liable for the discriminatory acts of the entity providing the medium to the defendant’s services, because the ADA does not impose liability on entities that "merely contract v,,ith someone who ultimately may be subject to Title III." Bowers, 9 F. Supp. at 481. In Bowers.. the court refused to hold certain defendants liable under the ADA where they merely provi :ted services to the plaintiff through contractual arrangements with the plaintiff’s univer!~ity.
The fact that the Bank is the parent of Access is legally irrelevant, as the Plaintiffs effectively have conceded, because the Plaintiffs have not raised any claim that would permit the Court to unify the separate corporate identities of the two companies.

VA_723213_4.DOC

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Plaintiffs have not cited any case holding a defendant liable in circumstances analogous to the Bank’s situation.
C, Carparts Is Probably No Lonller Valid Law Finally, it is worth mentioning that Carparts has been consistently criticized by other federal circuit courts and is likely superceded by a recent Supreme Court decision. In PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), the Supreme Court set forth the structure for analyzing allegations of discrimination under Title III of the ADA. A disal:~led professional golfer alleged that a golf tour violated the ADA by refusing to allow him to u~e a golf cart to accommodate his disability. The Supreme Court began its analysis by citing the statutory requirement in 42 U.S.C. § 12182(a) that the ADA imposes liability only if the all~:ii;ed discrimination occurs at a physical "place." Id. at 676-77. It held that this initial requirement was satisfied because the parties had conceded that the alleged discrimination occurred ~t a physical place -- a golf course. Id. at 677-78. Carparts would not survive this analysis becaase the insurance services were not rendered in a physical "place." The Connecticut Supreme C ::,urt recently agreed, stating that, in light of Martin, it "bald] [its] doubts about the continued vali,:l.ity of the analysis" in Carparts. Webster Bank v. Oakley, 830 A.2d 139, 162 n.38 (Colin. 2003). Even prior to Martin, numerous federal courts severely criticized Carparts ~aad reached the opposite conclusion -- that the ADA governs only discrimination occurrinli! at physical facilities and not through "mediums" like the phone or by mail. E.g., Weyer v. Twenu eth Century Fox Film Corp., 198 F.3d 1104, 1113-15 (9th Cir. 2000); Ford v. Sobering-Plough Corp., 145 F.3d 60t, 613-14 (3d Cir. 1998); Parker v. Metropolitan Life Ins. Co., 121 F.3d 10,~)6, 1013 (6th Cir. 1997). Declining to follow Carparts, Judge Brieant of the Southern Districl of New York stated that Carparts "flies in the face of the plain meaning of Title III and is aot

VA_723213_4.DOC

- 4-

supported by the legislative history." Leonard v. Israel Discount Bank of New York, 96".i F. Supp. 802, 804 (S.D.N.Y. 1997), vacated on other grounds, 199 F.3d 99 (2d Cir. 1999). 11. E’TRADE BANK CANNOT BE LIABLE UNDER THE ADA
BECAUSE IT DOES NOT OWN, OPERATE OR LEASE ATMS Trying to avoid the impact of the Bank not owning or operating ATMs, Plaintiffs
argued at the Hearing that "two places of public accommodation" are at issue in this case: (1~ the ATMs and (2) the nonphysical "place" wherever the Bank provides banking services. Plaintiffs further argue that E’TRADE Bank can be liable under Title III of the ADA even if it does not "own, lease or operate" any "place" of a public accommodation. See P1. Opp., at 3-4, citing 42 U.S.C. § 12182(b). As proof that the ADA governs the Bank, Plaintiffs note that the AI)A expressly lists "banking" services as a type of service governed by the ADA. Id. at 3, citing 42 U.S.C. § 12181(7)(F).
However, the clear language of the ADA rebuts Plaintiff’s argument. The st~.l:ute itself limits its scope to entities that "own, lease or operate" the specific place of public accommodation at which the alleged discrimination occurred. That "banking services" are al.,!,o a type of service governed by the ADA is a red herring -- the issue is not whether the B~:zk’s banking services generally qualify as a "place of public accommodation" under the ADA, but whether the Bank is legally responsible for alleged discrimination at a third-party ATM. Finally, the absurd results arising from Plaintiffs’ position demonstrate its lack of merit.
A. The ADA By Its Terms Governs Only The Entity That Owns, Leases Or Operates The Particular "Place Of Public Accommodation" At Issue The structure of Title III of the ADA shows that liability arises only if an entity
"owns, leases or operates" the place of public accommodation at which the alleli;ed discrimination occurred. Section 12182 of the ADA provides the "general rule" in subpa~: (a) and then "construes" the general rule with both general and specific prohibitions listed in subpart

VA_7232t3_4.DOC

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(b). Plaintiffs’ argument that the Bank is liable even if it does not own, lease or operate an
is flawed because it would improperly delete subpart (a) from the statute entirely.
Subsection 12182(a) states the "general rule":
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
Subsection 12182(b), entitled "Construction," provides general and specific prohibit!ons
encompassed by the "general rule" in subsection 12182(a):
Paragraph (b)(1) provide the "general" prohibitions -- these are (i) "denial of the opportunity" to disabled persons, (ii) affording benefits that are "not eq aal to" benefits afforded to others, or (iii) providing a service that is "differer.l: or separate." See 42 U.S.C. § 12182(b)(1)(A)(i) - (iii). Importantly, however, paragraph (b)(1) limits the scope of these general prohibitions to activitie,,.: of entities that own, lease or operate the place of public accommodations. ~!~ee id. § 12182(b)(1)(A)(iv).
Similarly, paragraph (b)(2) provides "specific prohibitions," see 42 U.S.C. § 12182(b)(2)(A)(i) - (v), but these specific prohibitions are provided ~’ for purposes of [construction of] subsection (a) of this section." Id. § 12182(b)(Z)(A).
In other words, liability cannot arise under the general prohibitions in paragraph (b)(1) or the
specific prohibitions in paragraph (b)(2) unless the discrimination occurs at the place of the
public accommodation owned, operated or leased by the defendant, as required by the general
rule in subsection (a). Any conclusion that the Bank is liable under Title III even though it d~es
not own, lease or operate the ATM would make the general rule in subsection (a) superflu::,us.
Courts must read the ADA to give meaning to every provision and not to render any provision
meaningless -- particularly one entitled the "general rule." E.g., Herman v. Hector I. Nieves
Transp., Inc., 244 F.3d 32, 36 (lst Cir. 2001) ("A primary canon of statutory construction is lhat
a statute should be construed so as not to render any of its phrases superfluous").

VA_723213_4.DOC

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The Bowers court squarely rejected both arguments the Plaintiffs raise here. First,
the Bank is not liable under the ADA for any alleged discrimination at ATMs allegedly operated
by a third party merely because the Bank has a contract with that third party:
The language of the ADA does not support this extension of liability to those who merely contract with someone who ultimately may be subject to Title III. It is true that the ADA’s prohibitions extend to discrimination "on the basis of a disability ¯.. directly or through contractual, licensing, or other arrangements." 42 U.S.C. § 12182(b)(1)(A)(i). This language does not, however, extend potential liability beyond that provided for in section 12182(a) .... Not only would such an interpretation render the statute internally contradictory -- by making the "general prohibition[s]" in subsection 12182(b)far broader than the "general rule" of subsection 12182(a) -- but such an interpretation would also contravene the language of section 12812(b)(1)(A)(iv). That subsection provides that those protected by section 12182(b) are "clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangements." 47 U.S.C. § 12182(b)(1)(A)(iv) (emphasis added); see also H.R. Rep. No. 101-485(II), at 101 (1990), reprinted in 1990 U.S.C.C.A.N. 303,384.
9 F. Supp¯ 2d at 481 (emphasis added). Second, the Bank is not liable for discrimination at these
ATMs merely because the Bank provides banking services that generally fall within the scop.c of
the ADA:
[PlaintifFs] other argument.., is that [defendant] ACT is covered by the ADA because it is "a national testing service that leases facilities to administer college achievement test[s]." . . . The allegations of the First Amended Complaint do not suggest that [plaintiff] was denied the enjoyment of those (unspecified) testing facilities. Rather, Bowers’ claim relates to... Bowers’ enjoyment of, among other things, intercollegiate football. Thus, Bowers still does not allege that ACT... own, lease (or lease to), or operate a place of public accommodation in such a way that they could modify that place of public accommodation to grant Bowers the enjoyment he alleges he was denied. [Citations omitted.]
Stated another way, to the extent ACT actually does own, lease or operate a place of public accommodation in connection with a national testing service, ACT... [is] subject to the ADA’s antidiscrimination principles only in the operation of that place of

VA_723213_4.DOC

7

public accommodation. Mere operation of one place of public accommodation does not by itself subject every other aspect of the operator’s business to Title III [of the ADA]. This is abundantly clear from both the Department of Justice’s regulations and commentary thereon, as well as case law .... [Quotations and footnotes omitted.] Id. at 482. Despite Plaintiffs’ suggestion at the hearing that the Bowers case has b::en discredited, no subsequent decision in that case nor any other federal case challenges ~:his relevant portion of the Bowers decision. This analysis is squarely on point and demonstrates lhat Plaintiffs catmot state a valid claim against the Bank. B. Plaintiffs’ Interpretation Of The ADA Leads To Absurd Results Finally, by ignoring the statute, the Plaintiffs’ argument results in a ridicul :~us extension of liability that Congress could not have intended. E’TRADE Bank permits accc:Junt holders to interact with the Bank not only through ATMs, but also over the phone, by mail, or over the Internet. Under Plaintiffs’ theory, E’TRADE Bank would be equally liable for discrimination if for some reason blind people could not use a particular telephone, or could not access a post office or computer attached to the Internet. Courts do not endorse such ab..~;ard constructions of the ADA. See, e.g., Access Now, Inc. v. Southwest Airlines, Co., 227 F. Sl.~pp. 2d 1312, 1321-22 (S.D. Fla. 2002) (ADA did not impose liability where company’s website on the Internet allegedly was inaccessible by blind people); Torres v. AT&T Broadband, LLC, 1_58 F. Supp. 2d 1035, 1037-38 (N.D. Cal. 2001) (ADA did not impose liability where digital c’,:.ble service that listed TV channels over TV screens allegedly was not viewable by blind people). Furthermore, the Plaintiffs’ argument would expand ADA liability for alleged discrimination problems by these particular ATMs to every other bank in the country. A’I~ Ms are so popular because a consumer can use almost any ATM to interact with just about any b’,~nk. The ATMs at issue in this lawsuit -- ATMs bearing the "E’TRADE" logo -- permit consut~c~.ers

VA 723213 4.DOC

- 8 -

to interact with other financial institutions besides E’TRADE Bank, such as Fleet, Citib~snk, Chase Manhattan, Wachovia, Bank of America, and so forth. Under Plaintiffs’ theory, the alleged discrimination by ATMs bearing an "E’TRADE" logo permit Plaintiffs to allege, an ADA violation against each of these banks, because blind people are disadvantaged in usin[: the "services" of each of these banks if someone tries to interact with any of these banks from ti::ese particular "E*TRADE"-branded ATMs. Taken to its logical conclusion, every bank in the country becomes liable for every inaccessibility at every ATM anywhere -- regardless of ,,,zho owns, operates or leases that ATM.2
These conclusions -- that E’TRADE is liable for every accessibility problem with every telephone, mail box, and computer, and that every bank is liable for an accessibility problem with any specific ATM -- are obviously absurd, but arise directly from the PlaintiiFfs’ position. Congress surely did not pass the ADA with the intention of creating such far-reacl~ing and unknowable liabilities. The fallacy with the Plaintiffs’ argument is that it ignores the AV~ ,X’s "general rule," which imposes liability only on entities that actually "own, operate or lease" the ATMs, mail boxes or post offices, and computers. The Bank’s reading of the general l’ule provides reasonable limits, clarity and sensibility to the ADA.
For these reasons, the Bank cannot be liable under Title III of the ADA unle~is it owns, leases or operates the "place" of a public accommodation where the discriminatio:t:t is alleged to have occurred, and the "place" of the public accommodation here is unquestion.~tbly and solely the ATMs, for which the Bank is not responsible.

Plaintiffs have alluded to the fact that the Bank might be distinguishable from other banks on the grut~nds that the Bank allegedly has built its business around the E’TRADE-branded ATMs and allegedly encour~:ges customers to use these particular ATMs. But even if so, the situation is no different than a business that is built around the use of overnight courier services and encourages customers to use FedEx instead of UPS, and thc,~t an allegation of discrimination is brought against FedEx. If a business is liable for ADA violations by its prelL’~:red
vendors, the ADA would create the perverse incentive for the business to stop having preferred vendors altogefl:.er.

VA_723213_4.DOC

- 9-

Dated: January 15, 2004

Respectfully submitted,
Jo4p),/L. Kociub~BB6# 216360) Rac’l~ael Splaine Rollins (BBO# 641972) Jenny K. Cooper (BBO# 646860) BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P. Lobel David A. Vogel
1600 Tysons Blvd., Suite 900 McLean, Virginia 22102 (703) 720-7000
Counsel for Defendants E’TRADE BANK, and E’TRADE ACCESS, INC.

VA_723213_4.DOC

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CERTIFICATE OF SERVICE

I, Jenny K. Cooper, hereby certify that on January i5, 2004, I caused a copy of the foregoing document to be served, via electronic and first class mail, upon the following couns,:’l of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 p attv.co rre. a(~.a~9.state, ma.us Attorney for Plaintiff Commonwealth of Massachusetts
Anthony M, Doniger, Esquire Christine M. Netski, Esquire Sugarrnan, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 doni~er~srbc.com netski~b, srbc.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esquire David Vogel, Esquire Arnold & Porter 1600 Tysons Boulevard Suite 1200 McLean, VA 22102 Douglas 1 ~o bel~t)~apo rter.com David_Vogei@aporter.com Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank

Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 df~brown,gold.com .,skw@brown ~old.co, m Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adriemae Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

VA_723213_4.DOC

- l 1 -

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ....,., ......
, ~

COMMONWEALTH OF

MASSACHUSETTS, NATIONAL

FEDERATION OF THE BLIND, INC.,

NATIONAL FEDERATION OF THE

BLIND OF MASSACHUSETTS, INC.,

ADRIENNE ASCH, RICHARD

DOWNS, THERESA JERALDI and

PHILIP OLIVER,

Plaintiffs

CIVIL ACTION NO. 03-11206-MEL

E’TRADE ACCESS, INC. and E’TRADE BANK,
Defendants

PLAINTIFFS’ SUPPLEMENTAL BRIEFING ON DEFENDANT E’TRADE BANK’S MOTION TO DISMISS
Pursuant to the Court’s Order of December t6, 2003, the Plaintiffs file this Supplemental Brief addressing the applicability of the First Circuit’s decision in Carp,!~rts Distrib. Ctr. Inc, v. Automotive Wholesaler’s Ass’n of New England, Inc., 37 F. 3d 1 (1st Cir. 1994), to the question of whether liability under Title Itl of the ADA attaches I:o E’TRADE Bank, Inc., separate and apart from any ownership, operation, or leasing ,:ff the ATMs at issue in this action. The Plaintiffs allege in their Amended Complaint that E’TRADE Bank, as a public accommodation, is liable for the provision of services through inaccessible ATMs whether or not (1) the ATMs themselves are public accommodations or (2) it or any other E’TRADE entity owns, operates, or leases th~!~ ATMs. See, e.g., Amended Compl. ¶¶12, 17, 33, 34, 40.

Carparts mandates the conclusion that the banking services offered by E’TRADE Bank are a public accommodation within the ambit of Title III, whether the means for providing those services is in a building, through a wire connection or som,~ other mechanism. After all, the provider of the service determines the means by which it makes the service available to the public. Here, E’TRADE Bank chooses to provid,~ banking services through a network of ATMs which are inaccessible to the blind, and is therefore subject to the non-discrimination provisions of Title III.
ARGUMENT The First Circuit in Carparts held that an entity that satisfies the statutory definition of "public accommodation" set forth in 42 U.S.C. § 12181 (7)(F)is subject t’.::, the non-discrimination provisions of 42 U.S.C. § 12182, whether or not it offers services to the public at a physical location. N at 19. In Carparts, the entities at issue were ~ provider and an administrator of an employer-sponsored health insurance plan whicl-~ did not offer their services through physical structures. In analyzing whether these service providers were "public accommodations," the court first looked to the langua!iile of Section 12181(7)(F), which sets forth the categories of entities considered "public accommodations." The court observed that the categories included such entities as "travel agencies," which typically do business by telephone or through the mail. Additionally, the definition of "public accommodation" set forth in Section 12181 (7)(F i, includes a catch-all category of "other service establishments." In light of this, the c(:~urt concluded that it was unnecessary for a business serving the public to do so from a physical place to be considered a "public accommodation" subject to Title III
2

obligations; it was enough that the services provided were of the type enumerated ir Section 12181(7)(F). Id. ("’[S]ervice establishments’ include providers of services which do not require a person to physically enter an actual physical structure.") (emphasis supplied). The court reasoned that this result was consistent with the primary policy underlying Title Ill: "to bring individuals with disabilities into the economic and social mainstream of American life.., in a clear, balanced and reasonable manner." Id. Indeed, "it would be irrational to conclude that persons who enter an office to purch~".!~e services are protected by the ADA, but persons who purchase the same services ov,~r the telephone or by mail are not. Congress could not have intended such an absurc result." Id.
In this case, banks are among the "service establishments" explicitly included within Section 12181 as satisfying the definition of "public accommodation." See 42 U.S.C. § 12181(7)(F). E’TRADE Bank is a federally chartered bank that offers bank ng services. Amended Compl. I[ 12. Although a branchless bank, it "offers all the customary banking services to its customers, such as checking accounts, savings accounts, money market accounts and certificates of deposits .."..Memorandum ,::,f Law In Support of E’TRADE Bank’s Rule 12(b)(6) Motion to Dismiss at 3. Thus, unl:!er the First Circuit’s holding in Carparts, the banking business owned by E’TRADE Bank is a public accommodation, despite the absence of a physical structure, and E’TRADE Bank is subject to the non-discrimination provisions of Title III simply by virtue of providing banking services. See also Doukas v. Metropolitan Life Ins. Co., 950 F.
3

Supp. 422,425-26 (D.N.H. 1996) (Title III non-discrimination provisions apply to insurance company that does business without resort to a physical place).
Carparts teaches that, as a matter of statutory construction and in furtheranc~!~ of the ADA’s goals, the terms "place of public accommodation" and "public accommodation" should be read as the same with respect to liability for discriminatio~ under Title III of the ADA. As the court in Carparts noted, the language of the ADA does not require that persons enter physical structures to obtain goods and services for Title Ill to apply. Accordingly, Carparts concludes that Title III reaches public accommodations and places of public accommodation alike, and that the statute’s reach is not limited to discrimination connected to a physical structure. It is importar~I to note that technological advances have expanded the way in which various "services" covered by the ADA are made available to the public, and "cyberbanking" is an excellent example.
It also follows that when a public accommodation discriminates in the provisic’.,~l of its services, liability attaches to the owner of that public accommodation regardle.,, ~ of whether other entities with whom the public accommodation has arranged to provide those services may also be liable under Title II1. This result is common sense. If, fcr example, a dentist’s office is physically inaccessible, the owners of both the buildinc~ and the dental practice, pursuant to 42 U.S.C. § 12182(a), would have potential liability. However, if the dentist refuses to treat AIDS patients, it makes no sense, even in thc:~se Circuits that do not follow Carparts, to say that the owner of the buildingmthe place ~::,f public accommodationmis a potential defendant. Rather, it is the owner of the dent~i~l
4

practice--a public accommodation--that is potentially liable, be it a limited liability company, a partnership or a sole proprietorship. Carparts, by recognizing that liabilily attaches to owners of "public accommodations" under Title III of the ADA (and not jLI ~t owners of "places" of public accommodation), establishes that neither the owner of tile dental practice nor the owner of banking services may discriminate.
E’TRADE Bank’s corporate decision to partner with other E’TRADE entities, ~:~r with any other entity for that matter, to provide its banking services through inacces~:~ ble ATMs does not insulate E’TRADE Bank from liability under Title I11. See, e.g., 42 U.S.C. § 12182(b)(1 )(A)(i) (prohibiting the denial to people with disabilities, either "directly, or through contractual, licensing, or other arrangements .t.o..participate ir~ or benefit from the ... services, privileges, [or] advantages ... of an entity"); 42 U.S.C. § 12182(b)(1 )(A)(ii) (prohibiting the affording to people with disabilities, "either direct;i, or through contractual, licensing or other arrangements," of an unequal benefit of "services ....privileges, or advantages"); 42 U.S.C. § 12182(b)(1)(A)(iii) (prohibiting tl~e provision to people with disabilities, "either "directly, or through contractual, licensin(.i, or other arrangements, with a ... service, privilege, or advantage ... that is different ... from that provided to other individuals").
CONCLUSION Under the analytical framework set forth in Carparts, Title III liability may prol::,~.~rly extend to E’TRADE Bank as the owner of a public accommodation. E’TRADE Banl.;:’s operations affect commerce and the banking business owned by E’TRADE Bank is specifically included in the definitions of "public accommodation" set forth in 42 U.S.,’C. §
5

CERTIFICATE OF SERVICE

I, Christine M. Netski, hereby certify that on the above date I served the withi~ document by electronic mail on the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General
One Ashburton Place Boston, MA 02108 patty.co rrea @ ago. state, ma. us Attorney for Plaintiff, Commonwealth of Massachusetts

Joseph L. Kociubes, Esquire Rachel Splaine Rollins, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe. kociu bes@ bingham, com rachel, roll ins@ bing h a m.com Attorneys for Defendants,
E’Trade Access, Inc. and E’Trade Bank

Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP
120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold .com skw@browngold.com Attorneys for Plaintiffs, National Federation
of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esquire David Vogel, Esquire John Henauit, Esquire
Arnold & Porter 1600 Tysons Boulevard Suite 900 McLean, VA 22102 douglas_lobel@aporter.com david_vogel@aporter.com john_henault@aporter.com Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank

342264.1
7

SRBC
SUGARMAN, ROGERS, BARSHAK & COHEN, P.C. Attorneys at Law

101 Merrima~:~ Street

,.:.: ;, ::. ~-!

Bostort, MA 0211,-’-4737

,, ........

¯ ¯ ~ .,,~:-

617-22i-3030

617-523-4(1’111 Fax

www.$r,:~3.corrl

.... ~ , ~ ,~ ,~: .... - ¯ ......
January 15, 2004

CHRISTINE M. I,II-=TSKI netski@srb,::, com

HAND FILED
Civil Clerk’s Office United States District Court John Joseph Moakley U.S. Courthouse One Court.house Way, Room 2300 Boston, MA 02210
Commonwealth of Massachusetts, et at. v. E’Trade Access, Inc., et al. Civil Action No. 03-11206-MEL
Dear Sir/Madam:
Enclosed please find for filing in the above-entitled matter, Plaintiffs’ Supplemental Briefing on Defendant E’Trade Bank’s Motion to Dismiss.
Thank you.
Very ~uly yours,

CMN/smm Enclosure

Christine M. Netski

SUGARMAN, ROGERS, BARSHAK & COHEN, P.C.
Civil Clerk’s Office January 15, 2004 Page 2
CC: w/copy of enclosure via first-class mail and via e-mail
Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108
patty.correa@ago.state.ma.us
Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202
dfg@browngold.com skw@browngold.com
Joseph L. Kociubes, Esquire Rachel Splaine Rollins, Esquire Bingham, McCutchen, LLP 150 Federal Street Boston, MA 02110
joe.kociubes@bingham.corn rachel.rollins@bingham.com
Douglas P. Lobel, Esquire David Vogel, Esquire John Henault, Esquire Arnold & Porter 1600 Tysons Boulevard, Suite 900 McLean, VA 22102
douglas_lobel@aporter.com david_vogel@aporter.com john_henault@aporter.com
342274.1

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, NATIONAL FEDERATION OF THE BLIND, INC., NATIONAL FEDERATION OF THE BLIND OF MASSACHUSETTS, INC., ADRIENNE ASCH, JENNIFER BOSE, THERESA JERALD1 AND PHILIP OLIVER,
Plaintiffs

V+
E’TRADE ACCESS, INC. AND E’TRADE BANK,

Defendants

CIVIL ACTION NO. 03 11206-MEL

SECOND AMENDED COMPLAINT

NATURE OF THE CASE

1.

Plaintiff Commonwealth of Massachusetts, by and through its Attorney General,

Thomas ReilIy, and Plaintiffs, the National Federation of the Blind, Inc. and the National

Federation of the Blind of Massachusetts, Inc. (collectively "Organizational Plaintiffs"), and

Adrienne Asch, Jennifer Bose, Theresa Jeraldi and Philip Oliver, individuals who are legally blind

(collectively "Individual Plaintiffs"), by their undersigned counsel, bring this complaint against the

Defendants E’Trade Access, Inc. and E’Trade Bank, individually and jointly, for (l) E’Trade

Bank’s failure to offer E’Trade banking services, the services of a public accommodation, through

ATMs that are accessible to blind people; (2) the Defendants’ operation and control, or operation,

control and leasing, of inaccessible ATMs that are public accommodations, that offer the services

of a public accommodation, and that are located in places of public accommodation, in violation

of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § § 12182 and 12183 and the

regulations promulgated thereunder, 28 C.F.R. Part 36.101 et seq., the Massachusetts Public

Accommodations Act, Mass. Gen. Laws ch. 272, §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103.
Plaintiffs seek injunctive relief requiring Defendants to make accessible the existing and newly installed ATMs through which E’Trade Bank offers banking services, or that they operate and control, or that they operate, control and lease, so that banking services that are available to a sighted user of these ATMs are similarly independently available to blind people, of whom there are approximately 1.1 million nationwide, including approximately 35,000 in Massachusetts. Plaintiffs also seek compensatory and punitive damages as a result of Defendants’ knowing, intentional and deliberate disregard of the law.
JURISDICTION AND VENUE 2. This action is authorized by 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 12188. This Couri has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367, since each Defendant transacts business in the Commonwealth, maintains facilities in the Commonwealth and the claims against each Defendant arise out of the transaction of business in Massachusetts. The Court also has supplemental jurisdiction over the state taw claims at issue pursuant to 28 U.S.C. § 1367. 3. Venue is proper in this District pursuant to 28 U.S.C. § 1391 (b), since each Defendant, as a corporation, is subject to personal jurisdiction in this District because a substantial part of the events giving rise to this action occurred and continue to occur in this District.
PARTIES 4. The Commonwealth of Massachusetts, represented by the Attorney General, brings this action in the public interest. The Attorney General’s principal office is located at One

Ashburton Place, Boston, Massachusetts, The Attorney General is authorized to bring this action on behalf of the Commonwealth pursuant to Mass. Gen. Laws. ch. 15 I B, § 5, in addition to other statutory and common law authority to bring legal actions in the public interest. See, e.g., Mass. Gen. Laws ch. 12, § 10.
5. The National Federation of the Blind ("NFB" or "Federation"), the leading national organization of blind persons, is a non-profit corporation duly organized under the laws of the District of Columbia with its principal place of business in Baltimore, Maryland. It has affiliates in all 50 states, Washington, DC and Puerto Rico. The vast majority of the Federation’s approximately 50,000 members are blind persons and therefore members of the protected class of disabled persons under the ADA, 42 U,S.C, § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, el seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. The Federation is widely recognized by the public, Congress, executive agencies of government and the courts as a collective and representative voice on bel~alfofblind Americans and their families. The purpose of the NFB is to promote the general welfare of the blind by (1) assisting the blind in their efforts to integrate themselves into society on terms of equality and (2) removing barriers and changing social attitudes, stereotypes and mistaken beliefs sighted and blind persons hold concerning the limitations created by blindness that result in the denial of opportunity to blind persons in virtually every sphere of life. The NFB and many of its members have long been actively involved in promoting adaptive technology for the blind, so that blind persons can live and work independently in today’s technology-dependent world. NFB members reside throughout the United States, including the Commonwealth of
3

Massachusetts, and many of its members would use the ATMs and the services offered by

Defendants if they were made independently usable by the blind.

6,

The National Federation of the Blind of Massachusetts, Inc. ("NFB-Massachusetts"),

an affiliate of the NFB, is a non-profit corporation duly organized under the laws of the

Commonwealth of Massachusetts, with its administrative office located in Somerset,

Massachusetts. NFB-Massachusetts currently has eight local chapters and approximately three

hundred members. All members of NFB-Massachusetts are also members of NFB.

NFB-Massachusetts members reside and work throughout the Commonwealth and many members

would use the ATMs offered by Defendants if they were made independently usable by the blind.

7. Adrienne Asch, a blind resident of Cambridge, Massachusetts, is a member of a

protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA

contained in 28 C.F.R. §§ 36.101, e~ seq., the Massachusetts Public Accommodations Act, Mass.

Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103.

Ms. Asch is a professor of Bioethics at Wellesley College. She would like to use the ATMs

offered by Defendants if they were made independently usable by the blind, and to have the choice

to be an E’Trade Bank account holder if that bank’s services were independently usable by the

blind.

8. Jennifer Bose, a blind resident of Brookline, Massachusetts, is a member of a

protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA

contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass.

Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Ms. Bose is a researcher at the Institute for Community Inclusion in Boston,

Massachusetts. Ms. Bose would like to use the ATMs offered by Defendants if they were made

independently usable by the blind, and to have the choice to be an E’Trade Bank account holder if that bank’s services were independently usable by the blind.
9. Theresa Jeraldi, a blind resident of Watertown, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Ms. Jeraldi is a retired employee of the Office of Civil Rights of the United States Department of Education. She would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E’Trade Bank account holder if that bank’s services were independently usable by the blind.
10. Philip Oliver, a blind resident of Leominster, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA .contained in 28 C.F.R. § § 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Mr. Oliver is employed by the Massachusetts Commission for the Blind and would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E’Trade Bank account holder if that bank’s services were independently usable by the blind.
11. E’Trade Access, Inc. ("E’Trade Access"), an Oregon corporation with its principa~ place of business in Arlington, Virginia, is a subsidiary of I~*Yrade Bank. E’Trade Access owns, operates, controls, and/or leases ATMs under the E’Trade name.
12. lY*Trade Bank, a federally chartered savings bank with its principal place of business in Arlington, Virginia, is a wholly-owned subsidiary of E’Trade Financial Corporation.

E’Trade Bank is a public accommodation pursuant to 42 U.S.C. § 12181 (7)(f) that offers banking services, including the withdrawal of funds, the making of deposits, and the verification of deposits, at over l 5,000 ATMs owned and/or operated under the E’Trade name across the United States, including more than 600 in Massachusetts.
13. E’Trade Access, Inc. and E’Trade Bark (collectively "E’Trade") are subsidiaries of E’Trade Group Inc., a Delaware corporation with its principal place of business in Menlo Park, California.
FACTS ~4. E’Trade boasts a fleet of more than 15,000 ATMs nationwide. Its ATMs offer to the public convenient access to common banking transactions, including cash withdrawals and deposits, at retail sites which include restaurants, convenience stores and gas stations located in all 50 states and the District of Columbia. 15. E’Trade Access holds legal title to only a few thousand of the more than 15,000 ATMs it operates within its network (approximately 17 in Massachusetts) (the "E’Trade-owned ATMs"). After demand and as a result of negotiation, E’Trade Access has agreed to make the E’Trade Access-owned ATMs accessible to the blind. 16. E’Trade operates and controls the balance of ATMs in its fleet at the site of various retail merchants, pursuant to a variety of contractual arrangements with the merchants. On information and belief, E’Trade leases back from merchants some of the ATMs it operates and controls, including some of the ATMs it operates and controls within Massachusetts (ATMs that E’Trade operates and controls, or operates, controls and leases are referred to as "E’Trade operated ATMs"). E’Trade has not and does not intend to make E’Trade-operated ATMs accessible to the blind.

17. E’Trade Bank offers its banking services, including fee-free transactions to E’Trade Bank account holders, through E’Trade-owned and E’Trade-operated ATMs.
i 8. E’Trade represents to the public, just as it does with the E’Trade-owned ATMs, that each of the E’Trade-operated ATMs is an E’Trade ATM. Each E’Trade-operated machine also (a) displays the E’Trade logo, and (b) offers fee-free transactions to E’Trade Bank account holders. In addition, E’Trade Bank’s website does not distinguish between E’Trade-owned and E’Trade-operated ATMs, stating, "With more than 15,000 ATMs, we operate the second largest network of ATMs in the United States."
19. On information and belief, E’Trade plans to expand the services at E’Tradeoperated ATMs to include not only banking services, but also access to the brokerage and other financial services of E’Trade Financial Corporation, a wholly-owned subsidiary of E’Trade Group.
20. E’Trade Bank; each E’Trade-operated ATM; each of the locations in which those ATMs are found; and the network of E’Trade-operated ATMs are all public accommodations as defined by Title II1 of the ADA, 42 U.S.C. § 12181(7), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., and the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 92A.
21. The banking services of~bred by E’Trade Bank through E’Trade-operated ATMs in Massachusetts constitute a program or activity under Article 114 of the Amendments to the Massachusetts Constitution, Mass. Const. amend. CXIV, and the services and facilities of a public accommodation under 42 U.S.C. § ~2181.
22. E’Trade deprives blind people of the opportunity to independently engage in financial transactions on the same terms as sighted people. E’Trade-operated ATMs are
7

inaccessible because they use computer screen text prompts that are undetectable to blind people to guide customers through banking transactions. These computer screen text prompts are not translated into a medium accessible to the blind, such as audio output.
23. Currently, ifa blind person enters the wrong personal identification number C’PIN") into an E’Trade-operated ATM, the ATM may retain his or her card. Also, a blind person who presses an incorrect function key on an E’Trade-operated ATM has no way of knowing that he or she has made a mistake in the transaction.
24. As a result of this inaccessibility, the Individual Plaintiffs and members of the Organizational Plaintiffs, unIike persons without visual impairments, are not able to independently use E’Trade-operated ATMs.
25. E’Trade ATMs threaten blind people with loss of their private information. Blind people who wish to use an E’Trade-operated ATMs have no choice but to repeatedly reveal their private PINs to others to complete an ATM banking transaction.
26. As a result, unlike persons who are not blind, the Individual Plaintiffs and members of the Organizational Plaintiffs who wish to use an E’Trade ATM are not able to maintain the security of their private PINS.
27. Although some E’Trade-operated ATMs have Braille keypads and labels, this feature is not an effective accommodation under the ADA:
a. Not all persons who are blind read Braille. In fact, current national figures estimate a Braille literacy rate of only 15% among persons who are blind; and
b. Braille keypads and labels are static and do not provide sequential computer screen instructions or any information about the contents of any given screen.

28. The only effective means to make E’Trade-operated ATMs accessible to blind people is through voice guidance technology. Voice guidance teclmology allows a blind person to plug a personal headphone into a universal audio jack and hear the step-by-step instructions as they appear on the ATM screen. Voice guidance technology orients a blind person to the features of an ATM, the operational options of the machine, and the details for each function of the machine. Voice guiclance technology also provides a verification mechanism through which a blind person may confirm that a number he or she has entered on the keypad is the number he or she intended to enter, or that the transaction chosen was the intended transaction.
29. Voice guided technology has been widely used in a variety of other contexts for decades and has been readily available for application to ATMs. It has long been affordable and available as an option with the purchase of new ATMs or as an upgrade for existing ATMs, and competitors of the Defendants have offered voice guidance technology at ATMs they own, operate, and/or ~ease Moreover, Defendants are in the process of implementing voice guidance technology for their E’Trade-owned ATMs.
30. Without injm~ctive relief, Individual Plaintiffs and members of the Organizational Plaintiffs will continue to be unable to independently use E’Trade-operated ATMs in violation of their rights under the ADA, the Massachusetts Public Accommodations Act, and the Massachusetts Equal Rights Act.
COUNT [ (Violation of the ADA’s Full and Equal Enjoyment of Services Mandate) 31. The allegations contained in the previous paragraphs are incorporated by reference.

32. Plaintiffs Adrienne Asch, Jennifer Bose, Theresa Jeraldi and Philip Nathaniel OIiver and Organizational Plaintiffs’ members are legally blind and recognized as a protected class under the ADA, 42 U.S.C. § 12102(2), and the regulations implementing the ADA contained in 28 C.I=.R. §§ 36.101, et se~l.
33. E’Trade Bank is a public accommodation, and each Defendant operates or operates and leases, and operates within, a place of public accommodation as defined by Title III of the ADA, 42 U.S,C. § 12181(7)(F).
34. l~ach Defendant, in violation of 42 U.S.C. § 12182(a), has failed to make its ATM banking services fully accessible and independently usable by individuals who are blind.
COUNT II (Violation of ADA’s Reasonable Modification Mandate) 35, The allegations contained in the previous paragraphs are incorporated by reference. 36. Each Defendant, in violation of 42 U.S.C. § 12182(b)(2)(A)(ii), has failed to make reasonable modifications (by failing to modify policies, practices and procedures) necessary to make its ATM banking services fuIly accessible and independently usable by individuals who are blind. 37. Modif~/ing its policies, practices and procedures to afford blind persons full accessibility and independent use of ATMs the Defendants operate or operate and lease would not fundamentally alter the nature of Defendants’ banking services.
10

COUNT llI

(Violation of the ADA’s Auxiliary Aids and Services Mandate)

38. The allegations contained in the previous paragraphs are incorporated by

reference.

39. Defi:ndants, in violation of the auxiliary aids and services provision of the ADA

42 U.S.C. § 12182(b)(2)(A)(iii), have failed to make their ATM banking services fully accessible

and independently usable by blind persons.

40. Providing auxiliary aids and services to make ATMs the Defendants operate or

operate and lease, and through which E’Trade Bank offers its banking services, accessible to and

independently usable by blind persons would neither fundamentally alter the nature of

Defendants" banking services nor result in an undue burden. COUNT IV

(Violation of the ADA’s Communication Barrier Removal Mandate)

41. The allegations contained in the previous paragraphs are incorporated by

reference. 42.

Each Defendant, in violation of 42 U.S.C. § 12182 (b)(2)(A)(iv), has failed to

remove communication barriers from the ATMs it operates or operates and leases and through

which E’Trade Bank o~fers its banking services.

43. Installing voice guidance technology to make ATMs the Defendants operate or

operate and lease, and through which E’Trade Bank offers its banking services, accessible to and

independently usable by persons who are blind is readily achievable.

1l

COUNT V (Violation of the ADA’s New Construction Mandate) 44. Tk~e allegations contained in the previous paragraphs are incorporated by reference. 45. Each Defendant, in violation of 42 U.S.C. § 12183, operates or operates and leases, or offers banking services through, ATMs that were installed after January 26, 1993 and are not readily accessible to and independently usable by blind persons. 46. Defendants are required to comply with the standards for accessible design set forth in the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). 28 C.F.R. § 36.406. ADAAG Section 4.34.5 requires that "[i}nstructions and all information for use [in ATM’s] shall be made accessible to and independently usable by persons with vision impairments." 47. Each Defendant, in violation of 42 U.S.C. § 12183 and 28 C.F.R. § 36.406, has failed to make its ATM banking services fully accessible and independently usable by blind persons.
COUNT VI (Violation of the Massachusetts Public Accommodations Act) 48. The allegations contained in the previous paragraphs are incorporated by reference. 49. Plaintiffs Adrienne Asch, Jennifer Bose, Theresa Jeraldi and Philip Oliver and Organizational Plaintiffs’ members are legally blind and recognized as a protected class under Mass. Gen. Laws ch. 272, § 98.
12

50. Each Defendant operates and controls, and operates within, a place ofpubIic accommodation as defined by Mass. Gen. Laws ch. 272, § 92A.
51. Each Defendant, in violation of Mass. Gen. Laws ch. 272, § 98, has failed to make its ATM banking services fully accessible and independentiy usable by individuals who are blind.
COUNT VII (Violation of the Massachusetts Equal Rights Act) 52. The allegations contained in the previous paragraphs are incorporated by reference. 53. Plaintiffs Adrienne Asch, Jennifer Bose, Theresa Jeraldi m~d Philip Nathanial Oliver and Organizational Plaintiffs’ members are legally blind and are recognized as a protected class under Mass. Const. amend. CXIV and under the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103(a). 54. The banking services offered by E’Trade Bank through E’Trade-operated ATMs in Massachusetts constitute a program or activity under Mass. Const. amend. CXIV. 55. Each Defendant has excluded blind people from the participation in and benefits of the banking services offered by E’Trade Bank through E’Trade-operated ATMs in Massachusetts and has subjected Plaintiffs to discrimination under Mass. Const. amend. CXIV and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103(a).
PRAYERS FOR RELIEF WHEREFORES, Plaintiff’s request that the Court:
(a) exercise j urisdiction over this action; (b) declare that the actions and inactions of Defendants E’Trade Access, Inc. and E’Trade Bank violate Title III of the ADA, 42 U.S.C. §§ 12182 and 12183, 28 C.F.R.
13

§ 36.101 et seq., the Massachusetts Public Accormnodations Act, Mass. Gen. Laws. ch. 272 §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103;
(c) enjoin each of the Defendants from continuing to violate the ADA and Massachusetts law and order all Defendants immediately to make the necessary modifications to the ATMs they operate or operate and lease, so that blind people may have access to and independently use these ATMs; and
(d) order such other relief as maybe just, equitable and appropriate, including an award of actual and punitive damages, reasonable attorneys’ fees, litigation expenses and costs pursuant to 42 U.S.C. § 12205, and Mass. Gen. taws ch. 151B, §§ 5 and 9.

COMMONWEALTH OF MASSACHUSETTS, By its Attorneys,

NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,

Patricia Correa, BBO No. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919

Anthony Doniger, BBO No. 129420 Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 22%3030

Dated: March 22, :2004

Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030
14

CERTIFICATE OF SERVICE

I, Christine M. Netski, hereby certify that on the above date 1 served the within document via electronic mail and first-class mail postage prepaid on the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability’ Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 patty.correa@ago.state.ma.us Attorney for Plaintiff, Commonwealth of Massachusetts

Joseph L. Kociubes, Esquire Rachel Splaine Rollins, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe.kociubes@bingham.com rachel.rollins@bingham.com Attorneys for Defendants,
E’Trade Access, Inc. and E’Trade Bank

Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21:202 dfg@browngold.com skw@browngold.com Attorneys for Plaintiffs, National Federation
of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esquire David A. Vogel, Esquire John F. Henault, Jr., Esquire Arnold & Porter 1600 Tysons Boulevard Suite 900
McLean, VA 22102 douglas_lobel@aporter.com david_vogel@aporter.com j ohn_henault@aporter.com Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank

Christine M. Netski

3a4982.1
15

 
 Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 1 of 13

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS,)

NATIONAL FEDERATION OF THE )

BLIND, INC., NATIONAL

)

FEDERATION OF THE BLIND OF )

MASSACHUSETTS, INC., ADRIENNE

)

ASCH, RICHARD DOWNS, THERESA

)

JERALDI and PHILIP OLIVER, )

)

Plaintiffs,

)

)

v.

)

)

E*TRADE ACCESS, INC. and

)

E*TRADE BANK,

)

)

Defendants.

)

)

)

03-CV-11206-MEL

MEMORANDUM AND ORDER

LASKER, D.J. The Commonwealth of Massachusetts, along with the
National Federation of the Blind and a number of blind Massachusetts residents, brings this action against E*TRADE Bank (the “Bank”) and its wholly-owned subsidiary, E*TRADE Access, Inc. (“Access”) alleging discrimination against the blind. The complaint alleges violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12182 and 12183 and the regulations promulgated thereunder, 28 C.F.R. Part 36.101 et

1

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 2 of 13
seq. (Counts I - V);1 violation of the Massachusetts Public Accommodations Act, M.G.L. ch. 272, §§ 92A and 98 (Count VI); and violation of the Massachusetts Equal Rights Act (“MERA”), M.G.L. ch. 9, § 103 (Count VII). The Plaintiffs seek an injunction requiring the defendants to make E*Trade Automated Teller Machines (“ATMs”) accessible to blind people through voice-aided technology.
The Bank moves to dismiss all claims against it.
I. Background E*TRADE Bank is a federally-chartered savings bank that is a subsidiary of E*TRADE Group, Inc. (“E*TRADE Group”). It offers customary banking services to its customers but has no branch offices; instead, transactions are carried out through a website, ATMs, and regular mail and wire transactions. In May 2000, E*TRADE Group acquired an Oregon company called Capture Card Services, Inc., which owns a nationwide network of ATMs, and renamed the company E*TRADE
1 The ADA allegations are as follows: Violation of the ADA’s Full and Equal Enjoyment of Services Mandate, 42 U.S.C. § 12182(a) (Count I); Violation of the ADA’s Reasonable Modification Mandate, 42 U.S.C. § 12182(b)(2)(A)(ii) (Count II); Violation of the ADA’s Auxiliary Aids and Services Mandate, 42 U.S.C. § 12182(b)(2)(A)(iii) (Count III); Violation of the ADA’s Communication Barrier Removal Mandate, 42 U.S.C. § 12182(b)(2)(A)(iv) (Count IV); and Violation of the ADA’s New Construction Mandate, 42 U.S.C. § 12183 (Count V).
2

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 3 of 13
Access. Access’ network consists of two types of ATMs: a limited number that it has title to (“Access-Owned ATMs”), and a larger number that are owned and operated by third-party merchants (“Merchant-Owned ATMs”). In June 2003, Access reached a settlement with the Plaintiffs in which it agreed to retrofit all Access-Owned ATMs with voice technology. The present lawsuit concerns the Merchant-Owned ATMs.
II. Motion to Dismiss The Bank moves to dismiss on the grounds that it does not own, lease or operate the ATMs in question and thus is not liable under 42 U.S.C. § 12182(a).2 The Bank cites a number of cases in which courts have interpreted “operate” to require daily control over the place of public accommodation. See, e.g., Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995) (affirming summary judgment in favor of defendant franchisor, where individual franchisee rather than national franchisor was found to operate individual stores). It argues that it does not conduct the affairs of any of the
2 “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or lease to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a).
3

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 4 of 13
ATMs in question, and that the merchants who own the machines perform the essential daily functions. In support of this contention, the Bank attaches a number of SEC filings, including a Form 10-K stating that E*Trade Group’s Banking division is comprised of:
the Bank, which offers a wide range of FDIC insured and other banking products, and the former Card Capture Services, Inc., now E*TRADE Access Inc., which operates a nationwide network of over 11,000 ATMs.
Exh. 4 to Def.’s Mem. in Support of Motion to Dismiss. The Bank contends that the presence of the E*Trade
logo on the ATMs is immaterial, because liability under the ADA turns on actual daily control. It notes that in Neff, the court granted summary judgment in favor of the franchisor even though the stores were filled with Dairy Queen trademarks and employees wore Dairy Queen uniforms. It further notes that hundreds of banks participate in the ATM network that Access maintains, and that anyone who holds an account at one of those banks can complete a transaction at one of these ATMs.
The Bank argues additionally that liability may not attach to it through its association with Access. See United States v. Bestfoods, 524 U.S. 51, 61 (1998) (“It is a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation . . . is not
4

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 5 of 13
liable for the acts of its subsidiaries.”) (internal quotations and citations omitted). The Bank further notes that Plaintiffs have not alleged any of the factors that would be required to pierce the corporate veil: (1) lack of corporate independence; (2) fraudulent intent; and (3) manifest injustice. United Elec., Radio & Machine Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1093 (1st Cir. 1992).
In opposition, Plaintiffs argue that their complaint alleges well-pleaded facts sufficient to support three distinct theories of liability: (1) that the Bank is a public accommodation which offers banking services that violate the ADA; (2) that the Bank’s services are programs or activities of the Bank that violate Massachusetts state law; and (3) that the Bank discriminatorily owns, operates or leases ATMs that are themselves public accommodations under federal and Massachusetts law.3 According to Plaintiffs, the Bank has, at best, only addressed the third theory.
As to the first theory, Plaintiffs note that because E*TRADE Bank is a “branchless bank,” the ATMs are the Bank’s
3 The two theories of ADA liability are expressed in ¶ 33 of the Amended Complaint: “E*Trade Bank is a public accommodation, and each Defendant operates or operates and leases, and operates within, a place of public accommodation as defined by Title III of the ADA, 42 U.S.C. § 12181(7)(F).”
5

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 6 of 13
only physical presence and the blind are thus unable to avail themselves of the Bank’s services. Plaintiffs argue that, as a public accommodation, the Bank may not deny someone its services based on disability:
It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.
42 U.S.C. § 12182(b)(1)(A)(1). Thus, they contend, the allegations in the complaint are sufficient to support liability under the ADA whether or not the Bank owns, operates, or leases the ATMs in question.
As to the second theory (liability under the Massachusetts Equal Rights Act, which provides a private right of action to enforce Art. 114 of the Amendments to the Massachusetts Constitution), Plaintiffs argue that the scope of MERA is not limited to the activities of public accommodations and is thus broader than that of the ADA. See Guckenberger v. Boston Univ., 957 F. Supp. 306, 324 (D. Mass. 1997) (noting that Art. 114 “appears to sweep broadly, securing the right of handicapped persons against
6

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 7 of 13
discrimination ... perpetrated by any private person or entity”) (citations and internal quotations omitted). Thus, they contend, even if the Bank’s arguments did warrant dismissal of the ADA claims, the MERA claim would remain.
As to the third theory of liability (owning, leasing or operating a place of public accommodation), Plaintiffs contend that the Bank’s arguments are factual in nature and therefore inappropriate for consideration on a Rule 12(b)(6) motion. They also note that the Complaint quotes the following statement from E*TRADE’s website: “With more than 15,000 ATMs, we operate the second largest network of ATMS in the United States.” Amended Complaint, ¶ 18. Thus, they argue, the complaint survives the liberal pleading requirements of Rule 8.
In a Reply brief, the Bank argues that this Court need only accept well-pleaded facts in the complaint, not “bald assertions,” Massachusetts School of Law at Andover, Inc., v. American Bar Assoc., 142 F.3d 26, 40 (1st Cir. 1998), or “unsupportable conclusions,” McDonald v. Commonwealth of Massachusetts, 901 F. Supp. 471, 476-77 (D. Mass. 1995). It contends that the public SEC filings attached to the motion to dismiss make clear that the Bank does not own, operate, or lease the ATMs, and that Plaintiffs cannot bring a suit based
7

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 8 of 13

on allegations that are demonstrably incorrect. Furthermore, the Bank argues, the quoted matter from the website is misleading in that the reference is to E*Trade Group as a whole rather than to the Bank itself. It attaches another web page which describes Access – rather than the Bank – as the company with the ATM network.
Finally, the Bank disputes Plaintiffs’ argument that Massachusetts law is broader than federal law in its prohibition of discrimination based on disability. It cites in support Lesley v. Chie, 81 F. Supp. 2d 217, 226 (D. Mass. 2000), which held that interpretation of state disability law goes “hand in hand” with interpretation of federal disability laws. The Bank also disputes Plaintiffs’ reading of Guckenberger, noting that it held that MERA liability attached only if a party was “continuing or carrying out” the discriminatory conduct. 957 F. Supp. at 324.

III. Analysis

A.

Liability under the ADA for owning, leasing or

operating the ATMs

Whether the Bank owns, leases or operates the ATMs

is a question of fact. In ruling on a motion to dismiss, a

court may not consider any documents that are not incorporated

into or made an exhibit to the complaint, unless the motion is

8

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 9 of 13
converted to one for summary judgment. Alternative Energy v.
St. Paul Fire and Marine, 267 F.3d 30, 33 (1st Cir. 2001)
(citation omitted). An exception may be made “for documents
the authenticity of which are not disputed by the parties; for
official public records; for documents central to Plaintiffs’
claim; or for documents sufficiently referred to in the
complaint.” Id. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st
Cir. 1993)). Here, the SEC filings relied upon by the Bank
are not referenced in the Complaint and they are not central
to the Plaintiffs’ claims. While Plaintiffs do not appear to
dispute the authenticity of the documents, neither have they
conceded the veracity of the information contained within
them. Hence, these documents may not be considered in
connection with the present motion.4 Even if the SEC filings
were appropriate for consideration on a motion to dismiss,
4 The Bank cites a number of cases in which courts have considered documents such as SEC filings on a motion to dismiss: Chief Justice Cushing Highway Corp. v. Limbacher, 145 F. Supp. 2d 108, 110 (D. Mass. 2001); In re Peritus Software Serv., Inc. Sec. Litig., 52 F. Supp. 2d 211 (D. Mass. 1999); Olkey v. Hyperion 199 Term Trust, Inc., 98 F.3d 2, 9 (2d Cir. 1996); and In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 368 n.9 (3d Cir. 1993). All of these cases are distinguishable. In Cushing Highway,the extraneous document was a court order in a related case. In the other cases cited by Defendants, the respective courts considered SEC filings in connection with allegations of securities fraud; the statements were considered not for their factual accuracy but as evidence that defendants had properly disclosed potential risks to investors.
9

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 10 of 13
they relate only to ownership and operation of the ATMs, and thus would not be sufficient to dispose of claims that the Bank “owns, leases . . . or operates” the machines.
Accordingly, the motion is DENIED as to this theory of liability.
B. Liability under the ADA as a Public Accommodation Banks are explicitly included in the ADA’s
definition of “public accommodation.” 42 U.S.C. § 12181(7)(F). The fact that E*Trade Bank is a “branchless bank” rather than a traditional bricks-and-mortar establishment does not alter the conclusion that it is a public accommodation. See Carparts Distribution Center v. Automotive Wholesaler’s, 37 F.3d 12, 19 (1st Cir. 1994) (“It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not.”). See also Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) (holding that ADA covers not only physical and architectural barriers but also intangible barriers, such as those relating to communication, that prevent disabled persons from accessing
10

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 11 of 13
goods, services and privileges). As a public accommodation, the Bank is barred from: subject[ing] an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.
42 U.S.C. § 12182(b)(1)(A)(i) (emphasis added). As explained in the Section-by-Section Analysis of the ADA that accompanies the implementing regulations, “[t]he intent of the contractual prohibitions of these paragraphs is to prohibit a public accommodation from doing indirectly, through a contractual relationship, what it may not do directly.” 28 C.F.R. Pt. 36, App. B. The commentary makes clear that a public accommodation can be held liable on the basis of such a contractual arrangement only where reasonable: “[The contractual prohibitions are] not intended to encompass the clients or customers of other entities. A public accommodation, therefore, is not liable under this provision for discrimination that may be practiced by those with whom it has a contractual relationship, when that discrimination is not directed against its own clients or customers.” Id.
The decisive question, then, is not whether 11

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 12 of 13
Plaintiffs have pierced the corporate veil between the Bank and Access, but whether the Bank is party to a “contractual, licensing, or other arrangement[]” – with Access or any other entity that may operate the ATMs – sufficient to render the Bank liable for whatever denial of services the ATMs may effect.
Accordingly, the motion is DENIED as to this theory of liability.
C. Massachusetts Public Accommodations Act Lesley v. Chie, relied upon by the Bank, holds that
interpretation of the Public Accommodations Act goes “hand in hand” with interpretation of federal disability laws, 81 F. Supp. 2d 217, 226 (D. Mass. 2000), and Count VI of the complaint specifically alleges that each defendant “operates and controls, and operates within, a place of public accommodation.” Hence, as with the ADA counts, a factual question arises regarding the relationship of the Bank to the ATMs. As noted above, this question is not appropriate for consideration on a motion to dismiss.
Accordingly, the motion is DENIED as to Count VI.
D. Massachusetts Equal Rights Act
12

Case 1:03-cv-11206-NMG Document 41 Filed 03/29/04 Page 13 of 13
MERA is considerably broader in its scope than the ADA. As the court noted in Guckenberger, Article 114 of the Massachusetts Constitution (for which MERA creates a private right of action) imposes a “seemingly unlimited antidiscrimination obligation” that extends to private actors as well as public accommodations. 957 F. Supp. at 324. The Bank points out that the court in Guckenberger made note of the fact that the individual defendants at issue had participated in “continuing and carrying out” the institution’s allegedly discriminatory policies. Id. However, this requirement is distinct from the ADA’s statutory requirement that a defendant “own, lease . . . or operate” a public accommodation, and the Complaint has alleged facts to state a claim that the Bank “carried out” such discrimination. Hence, Count VII survives independently of whether the ADA claims are dismissed.
In summary, the motion is DENIED as to all counts. It is so ordered.

Dated:

March 29, 2004 Boston, Massachusetts

/s/ Morris E. Lasker U.S.D.J.

13

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS et al., Plaintiffs,
Vw
E’TRADE ACCESS, INC. et Defendants.

Case No. 03 11206 MEL

ANSWER AND AFFIRMATIVE DEFENSES OF E’TRADE BANK TO PLAINTIFFS’ SECOND AMENDED COMPLAINT
Defendant E’TRADE Bank, by undersigned counsel, responds to the Second Amended Complaint as follows:
1. The allegations in Paragraph 1 state conclusions of law as to which no response is required.
2. The allegations in Paragraph 2 state conclusions of law as to which no response is required.
The allegations in Paragraph 3 state conclusions of law as to which no response is required.
4. E’TRADE Bank lacks knowledge or information sufficient to form a belief as to the truth of the allegations in tile first two sentences of Paragraph 4. The remaiz~ing allegations in Paragraph 4 state conclusions of law as to which no response is required.
5. E’TRADE Bank lacks knowledge or information sufficient to form a belief as to the truth of the allegations in the sentences one, two, four, five and six of

726236

Paragraph 5. The allegations in sentence three of Paragraph 5 state conclusions of law a.,; to which no response is required.
6. The allegations in the first sentence of Paragraph 6 state conclusions of law as to which no response ~s required. E’TRADE Bank lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 6.
7. The allegations in the first sentence of Paragraph 7 state conclusior~ts of law as to which no response ~s required. E’TRADE Bank lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 7.
8. The allegations in the first sentence of Paragraph 8 state conclusions of law as to which no response is required. E’TRADE Bank lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 8.
9. The allegations in the first sentence of Paragraph 9 state conclusions of law as to which no response is required. E’TRADE Bank lacks knowledge or information sufficient to form abeliefas to the truth of the remaining allegations in Paragraph 9.
10. The allegations in the first sentence of Paragraph 10 state conclusions of law as to which no response ~s required. E’TRADE Bank lacks knowledge or information sufficient to form a belief as to the truth of the remaining aIlegations in Paragraph 10,
11. The allegations in Paragraph 11 state conclusions of law as to which no response is required.
12. The allegations in Paragraph 12 state conclusions of law as to which no response is required.
13. The allegations in Paragraph 13 state conclusions of law as to which no response is required.
-2-

14. E’TRADE Bank denies the allegations in Paragraph 14. 15. E’TRADE Bank denies the allegations in the first two sentences of Paragraph 15. E’TRADE Bank admits on June 9, 2003 it signed a partial settlement agreement with the Commonwealth of Massachusetts and the National Federation of the Blind, the content of which speaks for itself. 16. E’TRADE Bank denies the allegations in Paragraph 16. 17. E’TRADE Bank denies the allegations in Paragraph 17. 18. E’TRADE Bank denies the allegations in Paragraph 18. 19. E’TRADE Bank denies the allegations in Paragraph 19. 20. The allegations in Paragraph 20 state conclusions of law as to which no response is required. 21. The allegations in Paragraph 21 state conclusions of law as to which no response is required. 22. E*TR_ADE Bank denies theallegations in Paragraph 22. 23. E’TRADE Bank denies theallegations in Paragraph 23. 24. E’TRADE Bank denies thaellegations in Paragraph 24. 25. E’TRADE Bank denies thaellegations in Paragraph 25. 26. E’TRADE Bank denies the allegations in Paragraph 26. 27. The allegations in Paragraph 27 state conclusions of law as to which no response is required. 28. The allegations in Paragraph 28 State conclusions of law as to which no response is required.
-3-

29. E’TRADE Bank lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 29.
30. The allegations in Paragraph 30 state conclusions of law as to which no response is required.
31. E’TRADE Bank incorporates its responses to Paragraphs 1-30 by reference as if fully set forth herein.
32. The allegations in Paragraph 32 state conclusions of law as to which no response is required.
33. The allegations in Paragraph 33 state conclusions of law as to which no response is required.
34. The allegations in Paragraph 34 state conclusions of law as to ~vhich no response is required.
35. E’TRADE Bank incorporates its responses to Paragraphs 1-34 by reference as if fully set forth herein.
36. The allegations in Paragraph 36 state conclusions of law as to which no response is required.
37. The allegations in Paragraph 37 state conclusions of law as to which no response is required.
38. E’TRADE Bank incorporates its responses to Paragraphs 1-37 by reference as if fully set forth herein.
39. The allegations in Paragraph 39 state conclusions of law as to which no response is required.
-4-

40. The allegations in Paragraph 40 state conclusions of law as to which no response is required,
41. E’TRADE Bank incorporates its responses to Paragraphs 1-40 by reference as if fully set forth herein.
42. The allegations in Paragraph 42 state conclusions of law as to which no response is required.
43. The allegations in Paragraph 43 state conclusions of law as to whiclh no response is required.
44. E’TRADE Bank incorporates its responses to Paragraphs 1-43 by reference as if fully set forth herein.
45. The allegations in Paragraph 45 state conclusions of law as to which no response is required.
46. The allegations in Paragraph 46 state conclusions of law as to which, no response is required.
47. The allegations in Paragraph 47 state conclusions of law as to which no response is required.
48. E’TRADE Bank incorporates its responses to Paragraphs 1-47 by reference as if fully set forth herein.
49. The allegations in Paragraph 49 state conclusions of law as to which no response is required.
50. The allegations in Paragraph 50 state conclusions of law as to which no response is required,
-5-

51. The allegations in Paragraph 51 state conclusions of law as to which no response is required.
52. E’TRADE Bank incorporates its responses to Paragraphs 1-51 by reference as if fully set forth herein.
53. The allegations in Paragraph 53 state conclusions of law as to which no response is required.
54. The allegations in Paragraph 54 state conclusions of law as to which no response is required.
55. The allegations in Paragraph 55 state conclusions of law as to which no response is required.
AFFIRMATIVE DEFENSES FIRST DEFENSE
E’TRADE Bank does not own, operate or lease the ATMs at issue. SECOND DEFENSE
The ATMs at issue are not places of public accommodation. THIRD DEFENSE
Plaintiffs lack standing. FOURTH DEFENSE
Plaintiffs failed to exhaust required administrative remedies. FIFTH DEFENSE
Plaintiffs are not entitled to actual or punitive damages. SIXTH DEFENSE
Plaintiffs’ claims are barred by the statute of limitations.
-6-

SEVENTH DEFENSE Plaintiffs have failed to state a claim upon which relief can be granted.
EIGHTH DEFENSE Plaintiffs have failed to name necessary and indispensable parties.
NINTH DEFENSE Requiring E’TRADE Bank to ensure the ATMs at issue have audio capabilities would be an undue burden under 42 U.S.C. § 12182(b)(2)(A)(iii) and applicable state law.
TENTH DEFENSE E’TRADE Bank did not fail to remove a "communication barrier that [is] structural in nature" under 42 U.S.C. § 12182(b)(2)(A)(iv).
ELEVENTH DEFENSE The removal demanded by Plaintiffs under 42 U.S.C. § 12182(b)(2)(A)(iv) is not "readily achievable,"
TWELFTH DEFENSE Plaintiffs did not request a "reasonable modification" of any "policies, practices and procedures" under 42 U.S,C. § 12182(b)(2)(A)(ii).
THIRTEENTH DEFENSE Plaintiffs were not denied any rights on the basis of their disability and good cause exists for any actions taken by E’TRADE Bank.
FOURTEENTH DEFENSE E’TRADE Bank has not violated the Americans with Disabilities Act Accessibility Guidelines, which apply only to certain ATMs.
-7-

WHEREFORE, Defendant E’TRADE Bank respectfully requests that this Court: 1. dismiss with prejudice all claims against E’TRADE Bank; 2. enter judgment in favor of E’TRADE Bank; 3. award E’TRADE Bank its reasonable attorney’s fees and costs pursuant to 42 U.S.C. §§ 12188 & 2000a-3(b); and 4. grant such other relief as the Court deems just and proper.
Respectfully submitted,

Dated: April 14, 2004

joe~, L. Koc u(~s, B~BO~’276360 Jenny K. Cooper, BBO# 646860 BINGHAM MCCUTCttEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-SO00 (6t 7) 951-8736 (fax)
Douglas P. Lobel David A. Vogel ARNOLD ~ PORTER LLP I600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000 (703) 720-7399 (fax)
Counsel for Defendants E’TRADE Access, Inc. and E’TRADE Bank

-8-

CERTIFICATE OF SERVICE
I, Jenny K. Cooper, hereby certify that on this 14th day of April, 2004, I served the foregoing document by mailing a copy of same, postage prepaid, to the following coemsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 pat~.~orr.ea@,ag0.stat~.ma.u~ Attorney for Plaintiff Commonwealth of Massachusetts
Anthony M. Doniger, Esquire Christine M. Netski, Esquire Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 doai~er~srbc.com netski~srbc.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa JeraIdi and Philip Oliver

Douglas P. Lobel, Esquire David Vogel, Esquire Arnold & Porter 1600 Tysons Boulevard Suite 1200 McLean, VA 22102 .Douglas Lobel(~.al~orter.com David_Vogel@aporter.com Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank

Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP
120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 d f~(~,.brownff.old, corn skw@brown~old.c0m Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

LITDOCS:510851.l

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS,

et al.,

)

)

Plaintiffs, )

E’TRADE ACCESS, INC., et al.,

)
)
Defendants.
)

CASE NO. 03 11206 MEL

MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(b)(7) MOTION TO JOIN NECESSARY PARTIES

Dated: April 1.6, 2004

E’TRADE AccF~ss, INC. and E’TRADE BANK, By their attorneys,
Joseph L. Kociubes BBO # 276360 Jenny K. Cooper BBO # 646860
BINGHAM MCCUTCHEN LLP
150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000

VA 725037 4.DOC

TABLE OF CONTENTS

PAGE

INTRODUCTION ..........................................................................................................1....

BACKGROUND .................................................................................................................

3

I.

NON-PARTY MERCH,~NTS OWN TITLE TO THE AUTOMATED

TELLER MACHINES AT ISSUE .......................................................................... 3

II. E*TRADE’S RIGHTS REGARDING THE ATMS ARE DEFINED IN CONTRACTS WITH THE MERCHANTS ............................................................ 4
III. PLAINTIFFS SEEK AN INJUNCTION REQUIRING E’TRADE TO MODIFY THE ATMS SO THAT THEY ARE ACCESSIBLE ............................. 5
ARGUMENT ...................................................................................................................... 6

I.

THE MERCHANTS’ OWNERSHIP INTERESTS AND CONTRACTS

WITH E’TRADE REQUIRE THEIR PRESENCE IN THE LAWSUIT ............... 8

II. THE PLAINTIFFS CANNOT OBTAIN COMPLETE RELIEF WITHOUT THE MERCHANTS BEING MADE PARTIES TO THIS LAWSUIT ................ 10

III. E*TtG439E COULD BE SUBJECTED TO INCONSISTENT OBLIGATIONS BETWEEN THE PLAINTIFFS AND THE MERCHANTS .... 13

CONCLUSION .............................................................................................................1..4.

- ii -

INTRODUCTION This lawsuit contends that certain automated teller machines ("ATMs") are inaccessible to blind persons in ’violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181 et seq. Plaintiffs seek an injunction requiring Defendants to physically change or retrofit over I 1,000 Merchant-owned ATMs nationwide that Plaintiffs admit Defendants do not own, and that are located o.n the property of third parties. Plaintiffs want Defendants ordered to add ports and install computerized voice instructions to ATMs owned by these independent merchants so that consumers may use headsets to operate the ATMs. In some instances, where the ATMs cannot be retrofitted, Plaintiffs seek to have Defendants replace older Merchant-Owned ATMs with newer upgraded machines. Despite the obvious impact to the merchants’ property, the Plaintiffs have included none of the merchants as defendants in this lawsuit, not even those located in Massachusetts. This lawsuit sho~ald not proceed until Plaintiffs join the merchants as necessary parties pursuant to Fed. R. Civ. P. 19(a). By Iaw and contract, the merchants’ interests are directly affected by this lawsuit. The injunctive relief Plaintiffs seek will physically alter the merchants’ property, and will directly affect their property interests. While E*TRADE’s interests in the Merchant-Owned ATMs are established by its contracts with the merchants’,, none of these contracts place on E’TRADE the obligation to ensure the Merchant-Owned ATMs comply with the ADA. Rather: ¯ The mercha~Lts have full responsibility for any upgrades to or replacement of
the ATMs to make them compliant with the ADA; E’TRADE has no fight under the contracts to upgrade or replace the Merchant-Owned ATMs to make them compliant with the ADA; and
VA 725037 4.DOC

® Any upgrades "required by law or regulations" are deemed "additional services" under the contracts, which the merchants must separately request from E’TRADE and for which the merchants must reimburse E’TRADE.
The merchants’ property and contract interests in tiffs lawsuit satisfy each of the three independent Wounds under Rule 19(a), any one of which requires that the Plaintiffs add the merchants to this lawsuit. First, the proposed injunction would directly impair the merchants’ property rights in their ATMs. Second, the proposed injunction, if granted, could not afford "complete relief;" the merchants could undermine the injunction, for example, by refusing to cooperate or by denying E’TRADE access to the premises, thereby impairing E*TRADE’s ability to perform any injunction. Third, the proposed injunction would undoubtedly spawn subsequent litigation between E’TRADE and the merchants on numerous issues. Rule 19(a) is not discretionary; because the merchants meet the requirements in Rule 19(a), this lawsuit cannot proceed unless the Plaintiff adds them as parties. Pujol v. Shearson American Express, Inc., 877 F.2d 132, 134 (lst Cir. 1989).
A 2003 case from this District entirely supports E*TRADE’s Motion. In FJ~otton v. Barkan, 219 F.R.D. 31 (D. Mass. 2003), the plaintiff sued a shopping mall owner under the ADA, alleging that certain mall stores were inaccessible to disabled persons. This Court held that even though the mall owner might be liable for the alleged inaccessibility, the mercha~nts were necessa~z parties and Rule 19(a) required that they be added to the lawsuit. The merchants "surely have an interest in the question of whether the barriers vioIate the ADA" and the merchants’ contracts with the mail owner at a minimum created a dispute as to who was responsible for the retrofits. Rule 19(a) Id. at 32. The analysis and conclusion of Frotton is substantively indistinguishable from this lawsuit, or dismiss the lawsuit if they do not.
-2-

For these reasons, the Court should order the Plaintiffs to file and serve an amended complaint naming as co-defendants all the merchants that own ATMs implicated in this lawsuit, or dismiss the lawsuit if they do not.
BACKGROUND E’TRADE snpports its factual predicate with a declaration from the President of E’TRADE Access, Inc., Dale Ftentlinger. See Exhibit 1 hereto. I. NON-PARTY MERCHANTS OWN TITLE TO THE AUTOMATED TELLER MACItINES AT ISSUEI The lawsuit concerns over 11,000 Merchant-owned ATMs located throughout the 50 states and the District of Columbia. Approximately 700 of these ATMs are located in Massachusetts. Dentlinger Decl. ¶ 5. These ATMs are located in retail establishments such as convenience stores, gas stations and grocery stores, generally called "merchants." Dentlinger Decl. ¶ 5. The Plaintiffs’ allege that the Merchant-Owned ATMs are not accessible to blind people and therefore do not comply with the accessibility requirements of the Americans with Disabilities Act ("ADA"), Complaint ¶ 1, citing 42 U.S.C. §§ 12182-12183. This Court has acknowledged in its March 29, 2004 Order that E’TRADE ,goes not hold title to the Merchant-Owned ATMs at issue. Rather, those ATMs are "owned .b...y third-party merchants." See March 29, 2004 Order, p. 3.2
There are a nmrtber of other ATMs for which Access holds title to, but those ATMs are not at issue in the case. See March 29, 2004 Order at 3 ("The present lawsuit concerns the Merchant-Owned ATMs.").
Plaintiffs freely admit that the merchants, not E’TRADE, hold legal title to ATMs. For example, Plaintiff Commonwealth of Massachusetts admits in its responses to E*TRADE"s discovery that "merchants... own the ATMs at issue." Commonwealth’s Responses to Defendant E’TRADE Access, Inc.’s First Set of Interrogatories to Plaintiff Commonwealth of Massachusetts, Response to Interrogatory No. 11, attached hereto as Exhibit 2.
-3-

II. E*TRADE’S RIGHTS REGARDING THE ATMS ARE DEFINED IN CONTRACTS WITH THE MERCHANTS Plaintiffs’ basis f~3r asserting E’TRADE Access is liable under the ADA is that,
by entering into contracts with the merchants that own the ATMs, E’TRADE has thereby ailegedly become an "operator" of the ATMs. Id.; see also Complaint ¶¶ 16, 33, citing 42 U.S.C. § 12182(a).
These contracts fall into two broad categories. Under "Site License Agreements" ("SLAs"), memhants acquire from E’TRADE (1) the right to use E*TRADE’s service marks and logos on the ATMs, and (2) data processing services, in which ATMs exchange electronic data over dedicated telephone lines with E’TRADE during each transaction. Dentlinger Decl. ¶ 7. In addition to the SLAs, merchants can choose to enter Equipment Maintenance Agreements ("EMAs") with E’TRADE, in which the merchants can acquire repair and maintenance services *’or the ATMs for prepaid monthly charges. Id. ¶ 8.
The SLAs provide that each merchant, not E’TRADE, has the ultimate obligation to ensure that an ATM complies with the ADA’s aecessibility reqnirements. E’TRADE has used standard form SLAs, which vary slightly from time to time and from which E’TRADE has modified for a subset of the merchants, but the language applicable to this lawsuit is identical in all of the contracts. See id. ¶ 10. The SLAs in use since October 2000 -- whdch represent the vast majority of E*TRADE’s current contracts with merchants -- expressly disclaim E*TRADE’s liability l~or any ADA violations:
Company [E’TRADE] shall in no event be responsible.., for failure to comply with the Americans with Disabilities Act or any similar law.
-4-

Dentlinger Decl. ¶ 11.3 Many of the SLAs go on to state expressly what the foregoing disclaimer

implies, namely that because E’TRADE is not liable, the merchant is potentially liable:

Location [merchant] will be solely responsible for ensuring that its ATMs and the s~:~ounding area comply with the Americans with Disabilities Act or any similar law.

Id.¶12.

The contracts do not give E’TRADE the unilateral right to change or replace an

ATM at E*TK.4DE’s discretion due to an alleged violation of the ADA. [d. ¶ 15. To the

contrary, through EMAs the merchants have the option to purchase repair and maintenance services from E’TRADE. These services do not include upgrades or replacements of ATMs

regarding compliance with the ADA. Instead, any upgrades "required by law or regulations" are deemed "additional services" under the EMAs which the merchants must separately request from

E’TRADE, and for which the ~aerchants must reimburse E’TRADE. See id. ¶ 13. Theretbre,

any changes to the ATMs to implement the capabilities Plaintiffs seek in this lawsuit will ultimately be the legal, contractual and financial obligation of the merchants.

III. PLAINTIFFS SEEK AN INJUNCTION REQUIRING E’TRADE TO MODIFY THE ATMS SO THAT THEY ARE ACCESSIBLE
Plaintiffs’ lawsuit demands an injunction requiring the Court to order E’TRADE

to modify all the ATMs in its nationwide network to make them accessible to blind people’..

Complaint ¶ 1.. Specifically, Plaintiffs request "voice enabled" technology (commonly called

3

Notwithstanding that some of the older SLAs vary in language, and some of the SLAs

permit Access to enter the merchant’s premises to perform standard maintenance and repair,

none of the SLAs give Access the right to enter a merchants’ premises to upgrade or replace

Merchant-Ovaaed ATMs to cure an ADA violation, and none state that E’TRADE will be liable

for the failure of a Merchant-Owned ATM to comply with the ADA or similar laws. Dentlinger

Decl. ¶¶ 14 & 15.

-5-

"talking ATMs"), which allows a blind person to plug earphones into a port on the ATM so that its pre-programmed audio instructions can walk the blind customer through a transaction. Complaint ¶ 27.
To retrofit an ATM with voice-enabled technology, the Merchant-Owned ATMs must be physically aItered. This would require, among other things: opening the ATM; drilling one or more holes on the face of the ATM; installing the "ports" for headsets; wiring the ports to the electrical system within the ATM; wiring the ports to the computer system in the ATM; and changing the computer programming in the ATM. Dentlinger Decl. ¶ 17.
In addition, some ATMs will need to be replaced entirely. Older models of ATMs simply do not have the electrical and/or computer systems that would permit a port to be added; thus, the only way to make these ATMs "voice enabled" is to replace them with entirely new and more modem ATMs. Dentlinger Decl. ¶ 18.
Replacing an ATM is no simple matter. For security reasons, ATMs -- which can contain up to $5,000-$10,000 irt their cash vault -- are typically physically embedded in walls or floors so that they cannot be easily removed. Thus, old ATMs would have to be detached (usually at sorne effort) from the walls or floor, and new ATMs, which vary significantly in size depending on the model employed, physically installed in their place. Furthermore, ATMs are hard-wired into a stores’ electrical system and telephone lines; thus replacing ATMs may weI1 require significant rewiring of a merchants’ electrical or telephone lines. Dentlinger Deck ¶ 20.
ARGUMENT Rule 19 requires the Court to join "necessary parties" to the lawsuit, or to dismiss the lawsuit if these parties are not or cannot be joined. Rule 19(a) identifies three independent
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grounds which establish whether a non-party to a lawsuit is a "necessary party’’ which must be joined to the lawsuit:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if:
(1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may
(i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject tc~ a substantial risk of incttrring double, multipie, or otherwise inconsistent obligations by reason of the claimed interest. Fed. R. Civ. P. 19(a). The Rule is not discretionary; ifaparty meets any one of these three factors, the p~y must be joined to the lawsuit. Pujol, 877 F.2d at 134. Each factor must be examined "pragmatically," given the "context of the particular litigation." Provident Tradesmens Bank & Trust Co. ~. Patterson, 390 U.S. 102, 116 n.12 & 118 (t968). Here, an evaIuation of any one of the three factors above requires Plaintiffs to join the merchants as parties. Because the merchants that own the ATMs are "necessary parties" under Rule 19(a), the Court should order the Plaintiffs to file an amended complaint naming the merchants as co-defendants. Cf. Frotton, 219 F.R.D. at 32 (D. Mass. 2003) (granting motion under Rule 19(a), ordering plaintiffs to amend complaint); Lambergs v. Total Health Sys., Inc.,
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No. 88-0670-Z, 1989 WL 63243, at *3 (D. Mass. June 5, 1989) (setting deadline for plaintiffs to amend complaint to join necessary parties or else case would be dismissed).4 I. THE MERCHANTS’ OWNERSHIP INTERESTS AND CONTRACTS
WITH E’TRADE REQUIRE THEIR PRESENCE IN THE LAWSUIT The Plaintiffs seek an injunction ordering E’TRADE to make physical chanlges
to, or to even replace, Merchant.-Owned ATMs, for w1~ich the merchants are solely responsible for ADA compliance. Under these circumstances, the merchants are "necessary parties" under Rule 19(a)(2)(i).
The injunctive relief the Plaintiffs seek unquestionably "impairs" or "impedes" the merchants’ rights (1) as the owners of the ATMs and, (2) as the owner of the stores in which the ATMs are located. Because the merchants own or lease this physical property, their property rights will be potentially impaired by the physical changes to their ATMs that would be required under any injunction. Moreover, the merchants’ business operations witl be potentially disrupted and impaired.
Under their contracts with E’TRADE, the merchants are solely responsible for ATM retrofits. The SLAs state that E’TRADE is not liable for any noncompliance with the ADA, and the EMAs require the merchants to request and pay for any "upgrades" to the ATMs "required by Iaw."
A District of Massachusetts court decided a remarkably similar case under the ADA late last year. InFrotton, 219 F.R.D. at 31, a plaintiff sued a shopping mall owner (but not

4

If any necessary party is not subject to service of process in this Court, the Court shoutd

dismiss claims affecting that party. Fed. R. Civ. P. 19(b); see, e.g., Tell v. Trustees of Dar;fmouth

Coll., 145 F.3d 417, 419 (1st Cilr. 1998) (dismissing action where court could not join necessary

parties).

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the merchants) under the ADA for the alleged inaccessibility of three retail stores in the mall. The mall owner argued that the three merchants were necessary parties because the relief the plaintiff sought (retrofitting the store access) would impair the merchants’ property interests. There, like here, the mall owners’ contracts with the merchants imposed responsibility for the retrofits on the merchants. Id. at 32. The Court held that because the merchants had a property interest affected by the case, both parties to the contract were required to be defendants in the lawsuit:
Plaintiffs complain of barriers within these three retail establislmaents; whiie it remains to be seen whether, as a matter of contract, they or [defendant] have control over these alleged barriers, the three retail merchants surely have an interest in the question of whether the barriers violate the ADA... Id. at 32 (emphasis added). Here, even if E*q?RADE were subject to the ADA as an "operator" of the ATMs, the merchants are unquestionably subject to the ADA as "o~vners" of the ATMs, see 42 U.S.C. § 12182(a) ("owners" of place of public accommodation responsible for accessibility), and the merchants (in tlneir contracts with E’TRADE) have retained their right to make and pay for ADA modifications. For the exact sarne reasons that both sides to the contracts in Frotton were necessary to resolve that ADA dispute, the merchants are necessary parties to this lawsuit. The result in Frotton is but one example of many in which courts do not permit lawsuits affecting property owners’ interests to proceed without joining the property owners. Maritimes & NE Pipeline, LLC v. 16.66Acres of Land, More or Less, In The City of Brewer & Towns of Eddington & Bradley, County of Penobscot, State of Me., 190 F.R.D. 15, 19 (D.)de. 1999) (landowners were necessary parties to action for easement condemnation); Giambelluca v. Dravo Basic Mat’l Co., Inc., 13t F.R.D. 475, 477 (E.D. La. 1990) (owner of property was
-9-

necessary in action to prevent lessee’s trucks from driving on property: "This proceeding to enjoin [defendant], absent [the ewners’] participation, would deprive him of the opportunity to protect his interest in generating revenue via the road of which he is a part owner"); National CoalAss ’n v. Clark, 603 F. Supp. 668,672 (D.D.C. 1984) (in suit concerning use of land fi~r coal production, defendant with "fee interest" in land was necessary because "disposition of these actions in favor of the plaintiffs would impede [the partys’] ability to defend its fee interest in the land"); Morelli v. Morelli, No. C2-00-988, 2001 WL 1681119, at *4 (S.D. Ohio Sept. 27, 2001) (owner of five properties was necessary to action for equitable title; lawsuits had "potential[ to deprive the [owner] of its property without affording it an opportunity to assert its claim to the property").
Plaintiffs cannot escape the ramifications of the relief they seek. This is not a garden-variety issue of indemnification or joint liability, although even that could be enough to justifyjoinder. Cf H.D. Corp. ofP.R.v. FordMotor Co., 791 F.2d 987, 993 (lst Cir. i986) (ordering j oinder of absent part~’ that was jointly and severally liable with defendant; "highly impractical" to require separate lawsuit between defendant and absent party). As the cases’, above demonstrate, the lawsuit raises significant practical considerations because the Plaintiffs desire injunctive relief to change or replace ATMs owned by the merchants. To obtain that reliel; the merchants are necessary parties by operation of Rule 19(a)(2)(i). II. THE PLAINTIFFS CANNOT OBTAIN COMPLETE RELIEF WITHOUT
THE MERCHANTS BEING MADE PARTIES TO THIS LAWSUIT Completely separate from the foregoing analysis, the merchants are also
necessary parties under Rule 19(a)(1) because the Plaintiffs cannot obtain complete relief
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without the merchants being joined to this lawsuit.5 An injunction directed solely at E’TRADE would be incomplete because the
merchants, as the ATM owners ,and parties contracting with E’TRADE, could avoid the injunction by refusing to let E’TRADE make changes to or replace the ATMs. E*TRADE’s rights to take any action with respect to the ATMs are defined solely by the contracts between E’TRADE and the merchants. The non-party merchants would not be bound by the proposed injunction. Merchants could easily avoid the effect of this Court’s injunction simply by terminating E*TRADE’s contract and using one of E*TRADE’s competitors for the data processing services that E’TRADE currently provides. Lacking any further contractual right to retrofit the merchants’ ATMs, the injunction against E’TRADE loses all viability -- the ATMs would continue to operate without the accessibility changes the Plaintiffs seek. The possibility that the merchants could avoid the Court’s order makes the merchants necessary parties under Rule 19(a)(1).
Plaintiffs cannot avoid the practical reality that if the merchants are not parties to this lawsuit, the merchant owners are not bound by any judgment or injunction. Flynn v. Hubbard, 782 F.2d 1084, 1089 n.2 (lst Cir. 1986) ("It is black letter law that those not a party to an action are not bound by an adverse judgment against the named defendant."); Lopez v.
Relief is "incomplete" if an absent third party has rights or interests that, left unresolved by the lawsuit, put the plaintiff in no better position than when the lawsuit started. E.g., Cross Timbers Oil Co. v. RoselEnerg~, Inc., 167 F.R.D. 457 (D. Kan. 1996) (relief would notbe complete because plaintiff could not get full resolution of dispute concerning subsurface oil fights without joining alI owners of the property); Shell Western E&P Inc. v. DuPont, 152 F.R.D. 82 (M.D. La. 1993) (action for declaration concerning mineral lease rights would be incomplete because it would not be binding on absent co-owners of property).
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Arraras, 606 F.2d 347, 352 (lst Cir. 1979) ("It is elementary that only those who are parties to a suit will be bound by the court’s judgment."). In particular, injunctions only bind those that are parties to a lawsuit. Chase Nat’.lBankv. City of Norwalk, Ohio, 291 U.S. 431,436 (1934) (court cannot enjoin person not a party to the suit); United Pharmacal Corp., et al., v. United States, 306 F.2d 515,518 (1st Cir. 1962) (non-party cannot be held to violate an injunction, even if the non-party is doing exactly what the injunction prohibits).
Because injunctions are not binding on non-parties, courts repeatedly find that property owners are "necessary parties" to actions seeking injunctions concerning activities on -or changes to -- their property. E.g., Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1014-15 (3d Cir. 1987) (in action seeking to prohibit lessee of a factory from shutting down operations, owner of factory was necessary party because owner "could readily undermine" any injunction by replacing defendant with another lessee); Jaguar Cars Ltd. v. Manufactures Des Montres Jaguar, S.A., 196 F.R.D. 306, 309 (E.D. Mich. 2000) (in action to enjoin distributor from importirLg watches bearing trademark similar to plaintiff’s mark, the absent owner of the watches was a necessary party because there was "nothing to prevent [the owner of the watches] from utilizing another distributor"); Giambelluea, 131 F.R.D. at 479 (in action to enjoin lessee gravel company from driving its large trucks over property contiguous to the plaintiff’s land, absent property owner was a necessary party because owner could avoid injunction by hiring another company to replace defendant).
No relief the Co,art could fashion without the merchants as parties can solw~ this problem, which makes the merchants necessary parties under Rule 19(a)(1). E’TRADE does not have the right under either the ~;LAs or the EMAs to make any changes to the Merchant-owned ATMs.
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III. E’TRADE COULD BE SUBJECTED TO INCONSISTENT OBLIGATIONS BETWEEN THE PLAINTIFFS AND THE MERCHANTS Finally, if the merchants are not defendants in this lawsuit, E’TRADE could[ welt
face inconsistent obligations and piecemeal litigation is unavoidable. This alone is a reason to find ttte merchants are necessary parties under Rule 19(a)(2)(ii).
For example, in Klein v. Marriott Int 7, Inc., 34 F. Supp. 2d 176 (S.D.N.Y. 1999), the court held that the owner of a hotel property was a necessary party in a tort action against a hotel operator concerning alleged personal injury at the hotel. The named defendant/hotel operator had a "significant interest in avoiding multiple litigation and inconsistent judgments with respect to the events at issue." See also St~ell ~Vester~ E&P, 152 F.R.D. at 85 (court was "even more concerned with the substantial risk of exposing the present parties to inconsistent obligations fi-om the disposal of’ this matter without the j oinder of the absent co-owners"); Morelli, 2001 WL 1681119 (in action for equitable title to five properties, absence of properties’ co-omier presented possibility of inconsistent obligations between defendas~t and absent party).
Any injunction requiring E’TRADE to retrofit or replace ATMs puts E’TRADE squarely between its obligations to this Court and to the merchants. Merchants that object to E*TRADE’s compliance with the injunction could institute separate actions against E’TRADE, arguing that (1) this inunction was improperly granted, (2) that E*TRADE’s retrofit or replacement of an AT/vl constitutes a breach of E*TRADE’s contract with the merchants, .or (3) that the ADA does not require them to upgrade their ATMs because doing so would impose a substantial burden on them. If any merchants were to prevail, E’TRADE would face mutually exclusive obligations; the Court should require the merchants to be joined to this lawsuit so that E’TRADE does not face this possibility.
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Furthermore, either repairing or replacing all the Merchant-owned ATMs wilI be extremely expensive. E*TRADE’s contracts with the merchants unequivocally state that the merchants musl~ bear these costs; but for E’TRADE to enforce these provisions, it is highly likely that some anlount of future litigation is unavoidable. The prospect of further litigation of these financial issues is another reason to require that the merchants be joined as necessary parties. Cf Soberay Maeh. & Equip. Co. v. MRF Ltd., Inc., 181 F.3d 759, 764 (6th Cir. 1999) ("the likelihood that either party [defendant or absent party] would have sought further legal recourse in this case is not speculative inasmuch as [the absent party] was a signatory to the contract"); Lambergs, 1989 WL 63243 at *4 ("a resolution of this case without [the absent parties] may leave the existing parties subject to multiple litigation and inconsistent obligations as defeMants would likely sue [the absent parties] for contribution should plaintiffprevail").
CONCLUSION For these reasons, the Court should grant E*TRADE’s motion and order Plaintiffs to amend their Complaint within a reasonable time to name as co-defendants the merchants that hold title to each of the ATMs at issue in the case, or dismiss the lawsuit if plaintiffs fail to do so.
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Dated: April 16, 2004

Respectfully submitted,
E’TRADE AccEss, INC. and
E’TRADE BANK,
By their attorneys,
Jse@_ L. Koc" b~ BBO # 2"~6360 Jermy K. Cooper BBO # 646860
BINGHAM MCCUTCHEN LLP
150 Federal Street Boston, Massact~usetts 02110 (617) 951-8000
Douglas P. Lobel David A. Vogel
ARNOLD ~: PORTER LLP
1600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000

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CERTIFICATE OF SERVICE
I, Jenny K. Cooper, hereby certify that on this 16t~ day of April, 2004, I served the foregoing document by mailing a copy of same, postage prepaid, to the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 patt~ co, rrea@ago, s rate. ma. u s Attorney for Plaintiff Commonwealth of Massachusetts
Anthony M. Doniger, Esquire Christine M. Netski, Esquire Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Streell Boston, MA 02114-4737 doni~er~srbc,com netski(a~srbc.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esquire David Vogel, Esquire Arnold & Porter 1600 Tysons Boulevard Suite 1200 McLean, VA 22102 .Dot~las Lobel~aoorter.eom David_Vogel@aporter.com Attorneys for Defendants,
E’Trade Access, Inc. and E’Trade Bank

Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP
120 E. Baltimore Street, Suite 1700 Baltimore, MD 2121)2 df~f~,bro~vn~old.com skw(&b rown~old.c,am Attorneys for Plaintiffs, National Federation of the Blind, Inc., National
Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

LITDOCS:510851.I

 
 Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et al.
Plaintiffs, v. E*TRADE ACCESS, INC. et aI.,
Defendants.

C.A. No.: 03-11206-MEL

OPPOSITION OF THE PRIVATE PLAINTIFFS TO DEFENDANTS' MOTION TO JOIN NECESSARY PARTIES The private Plaintiffs 1 respectfully submit this memorandum in opposition to the Defendants' Rule 12(b)(7) Motion to Join Necessary Parties.
Preliminary Statement In the spirit of Jonathan Swift's "modest proposal,'" Defendants suggest that the Court direct Plaintiffs to add as parties defendant more than 11,000 merchants at whose sites throughout the United States E*TRADE ATMs are located, many of whom undoubtedly would not be subject to either persona.l jurisdiction or venue in this District (or any other single District) -- all under the purported authority of Rule 19 of the Federal Rules of Civil Procedure. If these parties cannot be joined, Defendants insist, the Court is required to dismiss. The obvious

"
I NFB, NFB-Massachusetts, Adrienne Asch, Theresa Jeraldi, Philip Oliver and Jennifer Bose.
2 Swift, Jonathan, "A Modest Proposal for Preventing the Children of Poor People in Ireland, from being a Burden on their Parents or Country, and for Making them Beneficial to the Publick."(l729).

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 2 of 28
consequence of such dismissal would be that Plaintiffs would have no single venue in which they could seek relief; rather, Plaintiffs would face the impossible prospect of trying separate actions against E*TRADE Access and some of the merchants that house E*TRADE ATMs in each of 89 federal districts (E*TRADE appears not to have ATMs in Guam or Puerto Rico). The law, however, requires no such absurd result.
Defendants' position rests upon a misapprehension ofthe law governing necessary parties. These merchants are not necessary parties under Rule 19(a)( I), as complete relief can be afforded among those already parties. Indeed, an injunction against E*TRADE Bank prohibiting it from discriminating in the provision of banking services does not implicate the merchants in any fashion whatsoever. As for relief against E*TRADE Access, the Site Location Agreements provide E*TRADE Access with ample contractual authority to make any changes to the ATMs that the Court might require; accordingly, the Court can afford full relief in the absence of the merchants. While Access makes much of its contractual right to be indenmified by the merchants for the cost of compliance with the ADA, it is well settled that joint and several tortfeasors and indenmitors are not parties whose interests make them necessary under Rule 19 (a)(2), and the possibility that separate actions by Access against its retailers might yield inconsistent results is a possibility that is clearly tolerated under federal law.
Defendants' contention, that if the merchants are necessary parties and cannot be joined, the case must be dismissed is also contrary to well-established law. Under such circumstances this Court must determine whether "in equity and good conscience" the case should proceed without the absent parties. FED R. CN. P. 19(b). Where, as here, there is no adequate alternate forum, that fact alone weighs conclusively against dismissal. Indeed, if the merchants were
2

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 3 of 28
deemed to be necessary parties, the Court would have a variety of techniques at its disposal that could ameliorate their absence" including providing notice to the merchants of their right to intervene, having Access implead representative merchants within the personal jurisdiction of the Court who have an identity of interest with the absent parties or having Access sue a defense class of merchants under Rule 23.
The guiding principle behind Rule 19 is to avoid needlessly multiplicitous litigation by seeking to resolve disputes within a single forum. Defendants' motion seeks the opposite-to avoid resolving this dispute in a single forum and forcing instead the same suit to be litigated repeatedly throughout the country. As set forth below, Defendants' motion is without merit and should be denied.
Procedural Coutext Defendants incorrectly style their motion as brought pursuant to Rule 12(b)(7) of the Federal Rule of Civil Procedures, when it is a Rule 56 motion raising a Rule 19 claim of an absence of necessary parties. In either case, the Defendants carry the burden of persuasion. While a motion to join necessary parties under Rule 19, or in the alternative to dismiss, may indeed be brought as a Rule 12(b)(7) motion, the time for doing so has passed for both Defendants3 Because Defendants have attached exhibits, their motion is not one for judgment on the pleadings, but for summary judgment. FED. R. CIV. P. 12(c).
3 A motion raising any Rule 12(b) defense "shall be made before pleading if a further pleading is p,ermitted." FED. R. CIV. P. 12(b). E*TRADE Access ("Access") answered the Amended Complaint, without asserting an affirmative defense that Plaintiffs had failed to join necessary paTties. E*TRADE Bank ("Bank") filed a Motion to Dismiss under Rule 12(b)(6), but did not consolidate the motion at bar with that earlier motion, as required by Rule 12(g). Its Answer raised as its Eighth Defense that Plaintiffs had failed to name necessary and indispensable parties.
3

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 4 of 28
A party raising a Rule 19 defense has the burden to show that the unjoined parties are needed for a just adjudication. See Nations v. Nations, 670 F. Supp. 1432, 1437 (D. Ark. 1987); 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d §1609. Because the issue arises on summary judgment, Defendants must also establish the absence of disputed material facts with respect to their right to relief. See Geissal v. Moore Medical Corp., 927 F. Supp. 352, 356 (E.D. Mo. 1996).
At a very basic level, Defendants have failed to meet their burden. A party raising a Rule 19 issue has a duty to identify the potential necessary parties by name. Raytheon Co. v. Continental Cas. Co., 123 F. Supp.2d 22,28-29 (D. Mass. 2000). As E*TRADE insists that the identities of these parties are protectible trade secrets, it cannot simultaneously demand that Plaintiffs sue these unidentified (and to Plaintiffs, unknown) parties. As in Raytheon, Defendants' failure to identify the absent parties is enough to warrant denying Defendants' motion without prejUdice.
Statement of Facts Defendants fail to address many factual issues that could bear on the disposition oftl!eir Rule 19 claim4 At the same time, Plaintiffs have yet to receive any documentary discovery. Although Plaintiffs served a Request for Production of Documents on Access in December 2003, and the private Plaintiffs forwarded a proposed stipulated protective order to Access on April 9, 2004, that they believed addressed all of Defendants' concerns, Plaintiffs have not yet received
4 Also, Mr. Dentlinger's Declaration does not satisfy the personal knowledge requirement of Rule 56(e), perhaps because the Defendants did not have Rule 56 in mind.
4

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 5 of 28
any documents in discovery.5 Thus, the information that may bear on the instant motion, other than what Defendants attached to their Motion, continues to be in the exclusive possession of the Defendants.
For example, the Site Location Agreements ("SLAs") refer to "related documents" such as "Sales Agreements" between Access and the "locations" pertaining to the ATMs, Defs. Exhs. I-A through l.-D, ~~ 5, 22, and state that, in the event Sales Agreements exist, the SLA's do not constitute the "entire agreement" but must be considered together with the Sales Agreements and any equipment maintenance agreements. Id., ~ 21. Defendants have not attached any copies of the Sales Agreements to the motion. The terms of these agreements are entirely unknown, including whether Access mak,es any representations and warranties that bear on the machines' conformance to ADA requirements or promises of performance if they do not conform.
Defendants attach to their motion four versions of SLAs dated October 2000, November 2000, September 2001, and July 2003 (the same month and year that the Plaintiffs commenced this action). Access claims these SLAs are representative of the vast majority of its contracts with "locations" that house ATMs that are part of the E*TRADE Access network. Def. Exhs. lA-1D. Although there are potentially significant differences among the SLAs Access attaches, Access does not volunteer how many "locations" are subject to each SLA, and in which jurisdictions the "locations" subject to a particular SLA can be found. Nothing is known about the SLAs thalt govern the remaining locations.
5 Because the Commonwealth and the Defendants have not been able to agree about the impact of the Massachusetts Public Records Act on any Protective Order, the private Plaintiffs proposed to enter into a separate protective order to permit discovery to go forward while the Commonwealth and the Defendants litigated or resolved their issues.
5

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 6 of 28
The first three SLAs contain language that unequivocally grant Access the right to enter upon the property of the "location" without fear of committing trespass and, at its sole discretion, upgrade or replace the ATM for one of equal or greater value. Def. Exhs. I-A, I-B, and I-C, ~ 5
Company will have the right at any reasonable time and at all times during business hours to enter into and upon the Premises for the purpose of ... upgrading the ATM .. , . Company, at its sole discretion and expense, will have the rir# to upgrade the functionality of Location's ATM, including the right to exchange an ATM for a comparable ATM of equal or greater value. Mr. Dentlinger's contention in his declaration that this contractual authority is inadequate to permit Access to take actions that will bring the ATMs into compliance with the ADA because the language does not specify that the "upgrades" and "replacements" might be done expliciitly for ADA-compliance purposes is incorrect. The SLAs do not limit Access's right to enter the premises only for certain kinds of upgrades nor do they limit the reasons for making a replacement. Thus, Access has by contract preserved all the authority it needs to take the actions Plaintiffs seek. Indeed, the Equipment Maintenance Agreement forbids anyone other than Access to work on the ATMs. Def. Exhs. lE-F, ~ 6.1. The locations have no right to prevent Access from entering onto their premises duriing business and at other reasonable hours, and, once Access is on the premises, they have no authority to prevent Access from altering the ATMs in connection with upgrading or replacing them (for AIMs of equal or greater value) to make them ADA compliant. Id. at ~ 5. Indeed, they may not, without Access's prior written consent, bring the ATMs into compliance with the ADA on their own, since the SLAs do not permit anyone other than Access, without Access's prior written consent, to 1) service or repair the ATM, id. at ~ 5; 2) replace the ATM with an ADA-compliant ATM, id. at ~ 10; or 3) change data processing service providers.
6

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 7 of 28
After the Plaintiffs had filed a complaint against the Defendants at the Massachusetts Commission Against Discrimination and had or were about to file their federal complaint, Access again amended its SLA. Def. Exh. I-D. While, again, the Defendants do not volunteer to which "locations" this SLA applies and in which jurisdiction(s) they are located, the July 2003 SLA removes the language contained in Paragraph 5 of the other three SLAs affording Access an unlimited right to upgrade or replace the ATMs. Instead, it adds language that grants Access a right "at any reasonable time and at all times during business hours to enter into and upon dle Premises for the purposes of ... enabling the ATM to provide ... Advanced Functions." Def. Exh. l-D, ~ 7. As with the earlier SLAs, the location Camlot service or replace the ATM without Access's prior written approval, or change data-processing services. Id. at ~ 5,10.6
Not only do the SLAs afford Access an absolute right to upgrade or replace the ATMs at issue to make them accessible to blind people, for technological reasons, it is only Access that can make the machines accessible. This is because the software changes that need to be made to the network and programmed at the individual ATMs can only be written by or on behalf of Access. Declaration of Curtis Chong, PI. Exh. 1.
The Defendants place great weight on certain disclaimers contained in the SLAs. However, two versions provide only that the location is responsible for "ensuring that the l!;rea surrounding the ATM complies with the Americans with Disabilities Act or any similar law," and say nothjing about the ATMs themselves. Def. Exhs. 1-B, l-C, ~ 5. (emphasis added).
6 That the Equipment Maintenance Agreements allow Access to charge a fee for any upgrades does not diminish its authority to upgrade or replace the ATMs to make them ADA compliant under the attached SLAs.
7

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 8 of 28
In addition, all versions grant Access only a limited disclaimer ofliability for monetary damages flowing from the location's failure to comply with the ADA. Def. Exhs. I-A through l-D, -,r 19. This language does not inhibit Access's right to upgrade the ATMs to bring them into ADA compliance, if ordered to do so by the court.
Mr. Dentlinger asserts that to make all ATMs ADA compliant, an unspecified number at unspecified locations would ne,ed to be replaced, some unspecified number of which would entail "significant rewiring of a merchant's electrical and telephone lines and altering the merchant's actual physical structure." Dentlinger Dec., -,r-,r 18- 21. Mr. Dentlinger's statements concede, in effect, that Access can bring many, perhaps even most, of the ATMs into compliiance with the ADA without the need to alter the locations' physical structure. If, after discovery, it appears that some ATM replacements would require greater access than that provided by the SLAs, the Court may fashion its relief to address those situations.
For the reasons stated below, Defendants' arguments lack merit as a matter oflaw, and the relief they seek should be denied. However, to the extent that the court believes that there are facts prese:nted by Defendants that would militate toward giving the reliefthey seek, it may be appropriate, both under Rule:s 19 and 56, to defer the resolution of this issue until further discovery has taken place. See American Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012 (D. Ariz. 2001) (explaining that adjudicating Rule 19 issues is a fact-intensive and flexible inquiry.); 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d §1609; FED. R. Crv. P. 56(f); PI. Exh. 2 (Goldstein Declaration).
8

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 9 of 28
Argument A claim that a non-party is necessary and must be joined is subject to a two-part inquiry. First, the cowi deterrnliIes whether the non-party is necessary under Rule 19(a). If so, and if the non-party cannot be joined, the cowi decides, pursuant to Rule 19(b), whether to proceed nonetheless or to dismiss for want of an indispensable party. United States v. San Juan Bay Marina, 239 F.3d 400,405 (1st CiL 2001); Southern Co. Energy Mktg, L.P. v. VEPCO,190 F.R.D. 182, 185 (E.D. Va. 1999). That latter decision involves "four 'interests' that must be examined in each case to determine whether, in equity and good conscience, the court should proceed without a party whose absence from the litigation is compelled." Provident Tradesmens Bank & Trust Co, v. Patterson, 390 U.S. 102, 109 (1968). In a strikingly wrong and misleading statement, Defendants advise the Cowi without qualification that if a non-party is necessary under Rule 19(a) and is not subject to service of process, "the Cowi should dismiss." Def. Mem. at 8 n.4. The more widely shared view of Rule 19(b) is set out as follows: Should the moving party satisfy the criteria required by 19(a), Rule 19(b) leaves the district court with substantial discretion in considering which factors to weigh and how heavily to emphasize certain considerations.... The phrase "good conscience" in 19(b), contemplates that very few cases should be terminated due to the absence of [non-parties] unless there has been a reasoned determination that their nonjoinder makes just resolution of the action impossible.... Thus, as a general rule in determining whether a party is indisptmsable, the preference is for non-dismissal. Rose v. Simms, 1995 U.S. Dist. LEXIS 17686, at *7-8 (S.D.N.Y. 1995)[citations omitted]. The merchants are not necessary parties under Rule 19(a) and, if they were and could not be joined, the factors noted in Rule 19(b) would militate against dismissal.
9

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 10 of 28
I. E*TRADE Bank Is the Only Necessary and Indispensable Party As to the Claims Against It, and Is Present Before the Court. Rule 19 poses absolutely no bar to injunctive relief against E*TRADE Banle Effective
injunctive relief against the Bank does not require any machines to be made accessible and therefore requires no action on the part of the merchants; the Court may simply enjoin the Bank from discriminating against the blind in the provision of banking services. The Bank could comply with that injunction by ceasing to offer free banking services through inaccessible ATMs. Of course, it would be permitted to offer fee-free banking services to its customers through the A,~cess-owned ATMs that Access has already agreed to make accessible to the blind, and if this were insufficient for its business purposes, it could build or acquire brick-and-mortar branch banks, contract with entities that own or operate accessible ATMs or, for that matter, ask Access to negotiate with the merchants who have inaccessible E*TRADE ATMs (if indeed E*TRADE is correct that the merchants have some say) for permission to upgrade or replace, their ATMs to make them accessible. The merchants, perforce, are not a necessary party to such relief, because a prohibitory injlIDction against E*TRADE Bank requires no action by the merchants and does not bind them.'
The availability of this partial relief is enough to defeat E*TRADE Bank's argument for joinder or, in the alternative, dismissal under Rule 19(a)(I).8
7 If sUi~h an injunction had an effect on the merchants, and it does not, see infra note 8, the effect would not create an issue under Rule 19(a)(l). Under Rule 19(a)(l), the effect a decision may have on an absent party is not material. Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., II F.3d 399, 405 (3rd Cir. 1993).
8 Such an injunction would also raise no issues under Rule 19(a)(2). The merchants receive the sarne fee from Access for transactions for which the ATMs charge a fee and for
which, at Access's request, no fee is charged. Exhibits IA-ID, -,r 4. Thus, such an order does
not impair the merchants' economic interests, much less legally protected ones. Nor would
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The requirement unde:r Rule 19(a)(l) that complete relief be available does not mean that every type of relief sought must be available, only that meaningful relief be available. 3A J, Moore, J. Lucas & G. Grotheer, Jr., Moore's Federal Practice para. 19.07-1[1] (2d ed. 1989). Henne v, Wright, 904 F.2d 1208, 1212 n.4 (8th Cir. 1990) (finding that plaintiffs, ifmerit0I10us, could get a dleclaration of unconstitutionality and enjoin the enforcement ofa statute limiting a mother's right to change a child's surname without joining the father as a necessary party, but could not secure an injunction changing the child's surname without joining the father); See Brewery Dist. Soc. v. FHA, 996 F. Supp. 750, 756 (S.D. Ohio 1998) (holding that, where plaintiffs hoped to stop the demolition of a property by the City of Columbus, the city was not a necessary party to an order enjoining the FHA and EPA from assisting it with the approvals necessary for demolition); Jaguar Cars Ltd., v. Mfr. Des Montres Jaguar, 196 F.R.D. 306 act 309-10 (E.D. Mich. 2000) (dismissing some claims as to which a party over which the court had no personal jurisdiction was indispensable, but not others as to which the absent party was not); Me. v. Voluntown Bd. ofEduc., 178 F.R.D. 367, 369 (D. Conn. 1998) ("While an absent party may be considered a necessary party in order to avoid having a court render a hollow judgment among the extant parties, Rule 19(a)(1) does not require joinder for the universal resolution of all related claims"). For this reason, E*TRADE Bank's Rule 19 request to join necessary parties should he denied.'
either E*Tradle entity be subject to inconsistent obligations to the merchants as a result. E*Trade Bank, it would appear from the record to date, has no privity or contractual arrangement with the merchants.
9 For the same reasons, failure to join the merchants poses no bar to declaratory relief as to E*TRADE Access.
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II. The Merchants Are Not Necessary Parties to the Claims Against Access Pnrsnant to Rnle 19(a). Rule 19(a) provides in pertinent part, as follows: A person who is subject to service of process and whose joinder will not deprive the court ofjurisdiction over the subject matter of the action shall be joined as a party in the action if (I) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject ofthe action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. A. Complete Relief Can be Accorded Among those Already Parties in the Absence of the Merchants Under Rule 19(a)(I). Defendants argue conclusorily that complete relief cannot be afforded in the mercharlts'
absence because the merchants who own the ATMs at issue might not permit Access to exereise its rights under the SLAs to make the ATMs accessible, or because the merchants could terminate the SLAs and switch to another data processing company. These arguments ignore the analysis courts employ when ascertaining whether complete relief can be afforded by a court in the absence of the allegedly necessary party.
The only question under Rule 19(a)(l) is whether the relief requested is "complete" "as between the persons already patties, and not as between a party and the absent person whose joinder is sought. ... [J]oinder is [not] necessary where, although certain forms of relief are unavailable due to a party's absence, meaningful relief can still be provided." Sindia, Inc. v. Wrecked & Abandoned Vessel, etc., 895 F.2d 116, 121 (3d CiT. 1990) (quoting 3A Moore's Federal Practice ~ 19.07·1[1] at 93·98 (2d ed. 1989».
12

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The re:levant question in ascertaining whether "meaningful relief' can be afforded against the party present in the lawsuit is whether, where injunctive relief is sought, that party can be ordered to take action that it has the right to take, vis-a-vis the absent party. So, in Fernandes v. Limmer, 663 F.2d 619,636 (5th Cir. 1981), the question was whether the airlines that leased airline terminals from an airport authority were necessary parties in a lawsuit brought by members of the Hare Krishna against the airport authority for allegedly violating their First Amendment rights to solicit at the terminals. The court held that the lessee airlines were not necessary paIties because the kase terms gave the airport authority the right to allow third parties such as the plaintiffs into the terminals, and so the airport authority could be ordered by the court to, in effect, exercise that right contained in the lease.
In Central Delaware Branch, NAACP v. City ofDover, 110 F.R.D. 239, 241 (D. Del. 1985), the plaintiffs sued a municipality over provisions of the city charter - which under state law was subject to approval by the state legislature - that the plaintiffs contended violated their rights under the Fourteenth Amendment and the Voting Rights Act. The municipality claim~d that the State was a necessary party since, while the municipality could be ordered by the court to establish a new charter, the State could deny approval of any new charter the City submitted. The court rejected that argument, stating that notwithstanding the absence of the State, the court had several m~thods of affording the plaintiffs relief, with or without the State's cooperation.
Here, three of the four SLAs grant Access the right to enter upon the locations' premises and change or replace the ATMs and make them ADA-compliant (Def. Exh. I-A through I-C), and the fourth grants Access the right to enter upon the locations' premises and upgrade the
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ATMs to provide "advanced filillctions." Def. Exh. l_D.1O Thus, as to the vast majority,
apparently, of Access's ATMs, see Def. Exh. 1 'If 11, the court may order Access to exercise its
contractual rights in making the ATMs accessible to blind consumers. The speculation that the "locations" might ultimately violate their SLAs by interfering with Access's contract rights should not be a consideration here, as the existence of that possibility was not a consideration in Fernandes. 11 The number of parties who might unlawfully interfere with Access's performance of a court order are infinite and the mere possibility of such action does not warrant their inclusion in the suit.
To the extent that making some ATMs compliant might require actions beyond the lights of Access under the SLAs that have been provided to the Court to date - such as, arguably, replacing an embedded ATM that would require altering the premises - determining whether those location owners are necessary requires more discovery, such as an opportunity to review the SLAs and related documents applicable to those locations, the gathering of information as to what, exactly, would be needed to bring the particular ATMs into compliance with the ADA, and a determination of whether the "locations" are beyond the Court's jurisdiction for purposes of service of process. See Jaguar Cars Ltd, 196 F.R.D. at 309-10 (dismissing some trademark
10 The presence of the merchants is not necessary for the court to construe the SLAs. "The assertion of affirmative defenses which may turn upon, and even require adjudication of, the actions or rights of non-parties does not require joinder of those parties." Equimed, Inc. v. Genstler, 170 F.R.D. 175 (D. Kan. 1996) (adjudicating injunctive relief does not require joining all corporate parties to an agreement whom the relief would affect).
11 The makeweight nature of this argument is illustrated by Access forgoing the inclusion of the owners of premises housing Access-owned ATMs in reaching a settlement agreement covering those machines, even though presumably, those owners could also interfere with Access's ability to retrofit those ATMs by somehow claiming a trespass.
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claims due to absence of owner who was indispensable party, but allowing other trademark claims to go forward).
Defendants cite Chase National Bankv. City ofNorwalk, Ohio, 291 U.S. 431 (1934), and United Pharmacal Corp. v. United States, 306 F.2d 515 (1st Cir. 1962), which stand for the familiar proposition that an injunction cannot, as in City ofNorwalk, purport to enjoin "all persons to whom notice of the order of the injunction should come," or otherwise subject to contempt non-parties who are not in privity with or agents ofa defendant. 291 U.S. at 436. Defendants have cited no case decided under Rule 19 that holds that the speculative possibility that a non-party might frustrate an injunction against a party makes the absentee a necessary party under Rule 19. By contrast, Fernandes, Central Delaware Branch, NAACP, and United States v. Sabine Shell, Inc., 674 F.2d 480 (5th Cir. 1982) (absent landowner not necessary party where relief would require de£endants to enter upon absentee's land) are all cases in which the possibility of noncooperation by a non-party posed no bar to the court proceeding to adjudicate the case without the absentee.
In addition, Defendants cite Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006 (3rd Cir. 1987); Jaguar Cars Ltd v. Manufactures Des Montres Jaguar, S.A., 196 F.R.D. 396 (E.D. Mich. 196 F.R.D. 306 (E.D.Mich. 2000) and Giambelluca v. Dravo Basic Materials Co., Inc., 131 F.R.D. 475 (E.D. La. 1990), for the proposition that property owners are always necessary parties. Those cases do not stand for that general proposition, but are limited to their
15

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facts. In none of those cases did the absent property owners cede to a party contractual authority to alter or replace the owners' property, as the merchants have to Access. I'
The 1966 amendments to Rule 19 were intended to discourage the courts from relying on
the mechanistic analysis proposed by the defendants. Provident Tradesmen Bank & Trust Co. v.
Patterson, 390 U.S. 102, 118 (1968) (approving the Advisory Committee's criticism of prior
cases that showed "undue preoccupation with abstract classifications of rights or obligations");
7 Wright, Miller & Kane, Fed(~ral Practice & Procedure: Civil 3d §1601. For the foregoing
reasons, and in light of the language of the SLAs proffered by the Defendants, the court should
reject the Defendants' suggestion that complete relief cannot be afforded absent the merchants.
B. The Merchants' Absence Will Not As A Practical Matter Impair Or Impede Their Ability To Protect Their Interest under Rule 19(a)(2)(i).
Defendants argue that retrofitting or replacing the ATMs at issue would impair the
merchants' property interests under Rule 19(a)(2)(i). The controlling inquiry under Rule
19(a)(2)(i) is whether any lega1iy cognizable interests of the absent party will be prejudiced if the
case were to proceed in its absence. United States v. San Juan Bay Marina, 239 F.3d 400, 406
12 Courts repeatedly find that property owners are not "necessary parties" to actions seeking injurlctions concerning activities on (or changes to) their property. United States v. San Juan Bay Marina, 239 F.3d 400,406 (1st Cir. 2001); Dixon v. Edwards, 290 F.3d 699 (4th Cir. 2002); Sindia Expedition, Inc. v. The Wrecked and Abandoned Vessel Known as the Sindia, 895 F.2d 116, 122 (3rd Cir. 1990) (state not a necessary party in suit to detennine title to ship, even though state asserted ownership-"the possibility that a successful party may have to defend its right to the [vessel] in a subsequent suit brought by the State does not make [the state] a necessary party."); Sabine Shell, 674 F.2d at 482; Altmann v. Republic ofAustria, 142 F. Supp.2d 1187,1211 (C.D. CaL 2001) (other heirs not necessary parties in suit to recover paintings from defendant under Rule 19(a)(l); see Fernandes, 663 F.2d at 636 (lessee not necessary where lessor named); see also United States v. First Nat 'I City Bank, 568 F.2d 853, 859 (2nd Cir. 1977) (owner of safe deposit box need not be joined to suit by United States to seize contents of the box from the bank in which the box resides).
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(1st Cir. 2001) (reversionary property interests were not legally cognizable); Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030,1043 (9th Cir. 1983) (central inquiry is whether there will be prejudice to a legally protected interest relating to the subject matter of the action). Here, under the terms of the SLAs presented to the Court, the merchants have no legally cognizable right to exclude Access from th(l premises and to prevent it from upgrading or replacing the ATMs. Thus, they have no legally cognizable interest to be free from any such actions by Access that may be ordered by the Cowt.
In any event, an absent party's interests are not impaired when they are adequately represented by existing parties. That is the case when "( 1) the interests of the existing parties are such that they would undoubtedly make all of the non-party's arguments; (2) the existing parties are capable of and willing to make such arguments; and (3) the non-party would offer no necessary element to the proceeding that existing parties would neglect." Southwest Centerjor Biological Diversity v. Babbitt, 150 F.3d 1152, 1153-54 (9th Cir. 1998); Altmann, 142 F. Supp.2d 1212; Demeter; Inc. v. Werries, 676 F. Supp. 882, 888 (C.D. Ill. 1988). Pujol v. Shearson American Express, 877 F.2d at 132, 135 (1st Cir. 1989); cf Tell v. Trustees o/Dartmouth College, 145 F.3d 417 (1st Cir. 1998) (counseling caution where identity of interests is not perfect). Here, Access is ably represented by two law firms with national reputations. It has demonstrated that it will pursue all arguments available to it on procedural and substantive grounds to def(lat the Plaintiffs' prayer for an injunction requiring it to make the ATMs it operates (and that the merchants purportedly own) accessible to blind people. It is hard to conceive of any divergence of interests between the merchants and Access in this case that might warrant a conclusion that the merchants' interests are not adequately represented by Access.
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Moreover, many courts - the First Circuit among them - hold that where a party has knowledge of the litigation and refrains from intervening or otherwise participating, the court can safely assume that the absent party has concluded either that its interests are not impaired, or that its interests are adequately represented by parties who are present. San Juan Bay Marina, 239 F.3d at 406-07; Ferrojluidics Corp., v. Advanced Vacuum Components, Inc., 968 F.2d 1463., 1472 (lst Cir. 1992); Thunder Basin Coal Co. v. Southwestern Public Service Co., 104 F.3d 1205, 1211-12 (lOth Cir. 1997) (the absent party must claim an interest); ConnTech Development Co. v. Univ. ofConn. Educ. Prop., Inc., 102 F.3d 677,683 (2nd Cir. 1996) (same); Peregrine Myanmar Ltd v. Segal, 89 F.3d41, 49 (2nd Cir. 1996) (same); Janney Montgomery Scott v. Shepard Niles, Inc., 11 F.3d399, 410 (3rd Cir. 1993) (same); Sindia Expedition, Inc., 895 F2d 122. Indeed, the Advisory Committee notes that
[i]n some situations it may be desirable to advise a person who has not been joined of the fact that the action is pending, and in particular cases the court in its discretion may itself convey this information by directing a letter or other informal notice to the absentee. Access could certainly provide such notice to all or a representative portion of the merchants to afford them the ability to participate in the unlikely event that they believe that their interests would be adversely affected by an order requiring Access to retrofit or replace the ATMs to make them useable to blind people, a portion of the market not reached by the inaccessible ATMs at issue. 13
13 "[T]here is no obstacle to the absentee [intervening] when joinder is not feasible because of a defect in personal jurisdiction or venue, both of which can be waived...." 7 Wright, Mille.r & Kane, Federal Practice and Procedure: Civi13d §1608.
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Access argues that "[u]nder their contracts with E*TRADE, the merchants are solely responsible for ATM retrofits. The SLAs state that E*TRADE is not liable for any noncompliance with the ADA, and the EMAs require the merchants to request and pay for any 'upgrades' to the ATMs 'required by law. '" Def. Mem. at 8. First, Defendants overstate the scope of the SLAs disclaimers; several of them make the "location" responsible only for ADA compliance with respect to the ~Ieas around the ATMs, Def. Exh. lB-C ~ 5, not for the ADA compliance of the ATM themsellves, and they provide only that the "locations" are responsiblle for any lost profits or other damages resulting from failure to comply with the ADA or similar laws. Id. at ~ 19.
Second, that there may exist EMAs with certain merchants that would require the merchants to pay for the work to bring the merchants' ATMs into ADA compliance would not mean that their interests are prej udiced by Access being ordered to perform the work. Access has its own obligations under the ADA to afford access to consumers with disabilities at ATMs it operates, irrespective of any obligations by the merchants by contract or under the law. See Botosan v. Paul McNally Realty. 216 F.3d 827, 832 (9th Cir. 2000) (concluding that, irrespective of how parties allocated ADA responsibilities under lease, either or both landlord and tenant could be held liable for ADA non-compliance ofleased property).
To the extent that the parties allocated financial responsibility to the merchants under the contract, Access can simply seek indenmification at a later time from the merchants for the costs of complying with any order by the Court requiring Access to bring the ATMs it operates into compliance with the ADA. Id. The merchants do not thereby become necessary parties for purposes of Rule 19. See Secretary ofLabor v. Crown Central Petroleum Corp., 90 F.R.D. 99
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(E.D.N.Y. 1981) (holding that "employer" delegation of certain statutory duties to other entities who might thereby have become joint employers did not render such entities necessary parties to the litigation).
An absent joint tortfeasor is not a necessary party. Temple v. Synthes Corp., Ltd., 498 U.S. 5 (1990); Pujol v. Shearson American Express, Inc.. 877 F.2d 132, 137 (1st Cir. 1989); Flynn v. Hubbard, 782 F.2d 1084,1089 (1st Cir. 1986). So, too, an absent third party is not a necessary pmty. Thunder Basin Coal Co. v. Southwestern Public Service Co., 104 F.3d 1205, 1211 (lOth Cir. 1997) (potential indemnitors who may be impleaded under Fed. R. Civ. P. 14 are not necessary parties); Boone v. General Motors Acceptance Corp., 682 F.2d 552,553-54 (5th Cir. 1982); Pasco Int'l (London) Ltd. v. Stenograph Corp., 637 F.2d 496,503 (7th Cir. 1980).
Defendants point to Frotton v. Barkan, 219 F.R.D.31 (D. Mass. 2003), in support oftheir contention that a property owner of non-ADA compliant property is a necessary party under Rule 19 because, if not joined, its "interests" will be prejudiced. In that case, the plaintiff sued th.e landlord of a mall for inaccessibility, but did not naIlle the three tenants whose shops were inaccessible. The landlord argued that the three tenants were necessary parties and the court decided, in essence, that the matter would be better sorted out with all parties before the court. The court engaged in a minimum oflegal reasoning - there was little reason to do so on those facts, where the tenants were within the jurisdiction of the court and could be easily joined. However, the Court did apparently rely on the mall owner's representation that "it has no control over the interior premises of the plaza which it leases to the three retail merchants," presumably as a matter of lease construction. Id. at 31. Thus, Frotton is easily distinguishable from this case,
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where the SLAs afford Access and not the merchants the control of the ATMs needed to bring them into ADA compliance.
C. The Merchants' Absence Will Not Leave The Defendants At Substantial Risk Of Incurring Multiple Or Inconsistent Obligations Under Rule 19(alilil.
Rule 19(a)(ii) does not address inconsistent adjudications, only inconsistent obligations. Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st Cir. 1998). One consequence ofjoint and several to:rtfeasors and indemnitors not being deemed necessary parties under Rule 19, as explained in the preceding section, is that a defendant will always be exposed to the possibiliity that it will be held liable in the iinitiallitigation and then lose its contribution action on inconsistent grounds. An indemnity suit raises different issues and is not the sort of mulitiplicitous litigation with which Rule 19(a) (ii) is concerned. United States v. Nye County, 951 F. Supp. 1502, 1514 (D. Nev. 1996). That the resolution of the present litigation might cause further litigation between the retailers and Access to resolve any ambiguities over the responsibility to pay does not invoke Rule 19(a)(2)(ii)-the ambiguity is not the product ofthe merchants' absence. Southwest Center, 150 F.3d at 1155.
It is disingenuous for Access to suggest that this case should be dismissed as spawning multiplicitous litigation. If the merchants are necessary parties and the litigation cannot proceed in their absence, the Plaintiffs can only vindicate their right to relief by suing Access and the various merchants in almost every federal district. '4 The basic objective of the rule is "complete
l4 Access is a necessary party to all injunctive relief in all cases, because only Access has the right under the contracts to perform work on the ATMs, Exh. lA-D ~ 5, and because accessibility requires modifications to the software of the Access network. PI. Exh. 1 (Chong Dec.).
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justice with as little litigation as possible." Pujol, 877 F.2d 134. Indeed, the judicial response to a defendant who asserts that liable third parties are necessary parties has been that the defendant should implead the absent parties. See, e.g., Brown v. Chaffee, 612 F.2d 497,503 (lOth Cir. 1979) (holding that defendant can avoid inconsistent results by impleading absentee).
Access's cases are not on point. Klein v. Marriott Int'l, Inc., 34 F. Supp. 2d 176 (S.D.N.Y. 1999), does not address whether the party whose presence would destroy diversity jurisdiction is a necessary party under Rule 19(a); it assumes it, and moves directly to the analysis of whether dismissal is th,~ appropriate remedy under Rule 19(b). Shell Western E&P v. DuPont, 152 F.R.D. 82 (M.D. La. 1993) is a suit to construe a lease brought by the lessee against one of the 51 lessors. Shell Western E&P is part of a body of cases that generally require parties to a contract to be parties to a suit when the construction of the contract is at issue. By contrast, the Plaintiffs in this case ar(: not parties to any agreement with the Defendants and are certainly not seeking to have a court declare their rights under some agreement.
The merchants, at the end of the day are not necessary parties under any branch of Rule 19(a) and the Defendants' motion should be denied. III. If the Merchants Are Necessary Parties, Rule 19(b) Mandates Against Dismissal.
Although Defendants claim that if the merchants are necessary parties under Rule 19(a), dismissal is required, Def. Mem. n.4, p.8, the law is to the contrary.IS Provident Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968). Indeed, the preference is for nondismissal. Rose,
15 The single sentence of note 4 in Defendants' Memorandum is the entirety of its argument concerning Rule 19(b). Although Plaintiffs have consented to Defendants' request to file a Reply Brief, they should not there address this issue for the first time. See Ace Novelty
Co., Inc. v. VUukEquipment, Inc., No. 90 C 3116,1991 WL 150191 at * 4 (N.D. Ill. July 31,
1991) (striking reply brief that included arguments not raised in opening brief). 22

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1995 U.S. Di,t. LEXIS 17686 at *8; Drankwater v. Miller, 830 F. Supp. 188, 191 (S.D.N.Y. 1993).
Rule 19(b) provides as follows: If a person as described in subdivision a(l)-(2) hereof cannot be made a
party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. The rule does not indicate the weight to be given each factor. However, when there is no adequate alteruative forum, the last factor is "the most important of the four." Rishell v. Jane Phillips Episcopal Mem. Med. Ctr., 94 F.3d 1407, 1413 (lOth Cir. 1996). While the availability of an altemative forum may be given little weight, "the absence of an alternative forum woulld weigh heavily, if not conclusively against dismissal." Pasco Int'! Ltd. v. Stenograph Corp., 637 F.2d 496 (7th Cir. 1980). Here, too, the fourth factor is critical. If the case is dismissed, issues of personal jurisdiction and venue relating to the merchants would require plaintiffs to sue the E*TRADE entities and the merchants particular to each area in as many as 89 separate federal courts. A rule intended to promote judicial efficiency and the resolution of all disputes in a single forum would have been turned on its head. When no adequate single alternative forum exists, the courts regularly refuse to dismiss and instead proceed in the absence of necessary parties. Rishell, 94 F.3d 1412-13; Fetzer v. Cities Service Oil Co., 572 F.2d 1250 (8th Cir. 1978); Prescription Plan Service Corp. v. Franco,
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552 F.2d 493,497-98 (2nd Cir. 1977); Kroese v. Gen'l Steel Castings Corp., 179 F.2d 760 (3rd Cir. 1950); Klockner Stadler Hurter, Ltd. v. Insurance Co. ofPennsylvania, 785 F. Supp. 1130, 1133 (S.D.N.Y. 1990); National Wildlife Fed'n v. Buiford, 676 F. Supp. 271 (D.D.C. 1985); Wisconsin v. Baker, 464 F. Supp. 1377, 1383-84 (W.D. Wis. 1978) (absentees invited to intervene); National Resources Defence Council v. Tennessee Valley Authority, 340 F. Supp. 400 (S.D.N.Y. 1971), (reversed on other grounds 459 F.2d 255 (2nd Cir. 1972»; GulfIns. Co. v. Lane, 53 F.R.D. 107 (W.D. Okla. 1971); Owatonna Mfg. Co. v. Melroe Co., 301 F. Supp. 1296, 1306 (D. Minn. 1969); Smith v. American Fed'n ofMusicians, 47 F.R.D. 152 (S.D.N.Y. 1969) (absentee invited to intervene); Imperial Appliance Corp. v. Hamilton Mfg. Co., 263 F. Supp. 1015 (E.D. Wis. 1967) (absentee invited to intervene); Rippey v. Denver United States Nat'l Bank, 260 F. Supp. 704 (D. Colo. 1966).
Nat'l Wildlife Fed'n v. Burford, is instructive. Plaintiff desired to enjoin the government from lifting mining restrictions on 170 million acres offederallands. The court was fully cognizant that the owners and lessees of mining claims were on those facts necessary parties and that if plaintiff prevailed in their absence, the impact on the absentees was real. Moreover, the court had doubts that the existing parties could fully represent the absentees. Nonetheless, the court determined to proceed, holding that
dismissal for failure to join would deny plaintiff an adequate forum in which ever to prosecute its claim. The availability of an alternative forum represents a "critical consideration" in deciding joinder questions. Pasco Int'l Ltd. v. Stenograph Corp., 637 F.2d 496,500 (7th Cir. 1980). The lands involved in this case lie in seventeen different states. The absent parties probably cover an even broader geographical range. Because of problems ofjurisdiction and venue, plaintiff could never join all defendants in one forum. Requiring it to bring seventeen separate lawsuits or even to combine actions through the device of multidistrict litigation would create enormous administrative disorder and delay.
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Dismissal, therefore, would effectively discourage and, for all practical purposes, put an end to this litigation. Id. at 276. Also, because the suit was to enforce "public rights" as is also true of the case at bar, the court ruled that it vitiated the application of Rule 19, relying in that regard on Nat 'I Licorice Co. v. Nat'! Labor Relations Bd., 309 U.S. 350, 363 (1940). Access, however, compl.ains that the Court may not be able to effectively order relief against it in the absence of the merchants. This question arose in Kroese v. Gen '! Steel Castings Corp., 179 F.2d 760 (3rd Cir. 1950), in which the plaintiff sought to compel directors to declare dividends, but there was no single state or federal court in which a majority of the board (much less the entire board) could be served. In an oft-cited opinion, the court declared that, despite the absence of necessary parties (9 of the 12 board members), the case should go forward, noting that if the unserved parties had breached their duty and were called upon by the court to act, they would not be exercising any discretion. And while the absent board members could not be lawfully enjoined, the court was certain that a means could be found, stating "But how can the chancellor's action be made effective? To doubt its effectiveness is to doubt the power of a court of equity when wielded by a chancellor with legal imagination." Id. at 764. And on the question of prejudice to the absent parties, the court set forth a faultless syllogism: If, on the facts, [plaintiff] cannot prove that he is right, the inconvenience to the corporation will be no more than that of any other litigant who successfully defends a lawsuit. If, on the other hand, the plaintiff proves his case he is only getting what the law says he is entitled to have. It would be most unjust if he could not prove that claim for the lack of a proper forum. Id. at 765-66. There are here a number of steps that the Court can take to ameliorate any prejudice. When it appears that absent parties may be prejudiced, they are often invited to intervene, as
25

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 26 of 28
suggested by the Advisory Committee Notes to the 1966 Amendment to Rule 19. ("The absentee may sometimes be able to avert prejudice to himselfby voluntarily appearing in the action or intervening on an ancillary basis ...."). Alternatively, Access could be directed or permitted to file Rule 14 claims against representative merchants within the personal jurisdiction of the Court (representing the range of versions of Site Location Agreements entered into).16 This would create an identity of interests between the named merchants and the absent merchants, thus assuring that their claims would be heard and argued. See Bank One Texas, N.A. v. Leaseway Transp. Corp., 137 F.R.D. 631 (D. Mass.1991) (denying joinder of co-lenders because the lead lender would adequately represent their interests). Alternatively, Access could be directed or permitted to :file a third-party c:1aim against a "defendant class" under Rule 23, an approach that would be particularly appropriate in this case given the large number of merchants involved! and the commonality of the legal and factual issues at stake. Finally, as noted by our co-plaintiff, the Commonwea.lth of Massachusetts, it seeks relief only with respect to merchants in its State, thereby raising no issue of personal jurisdiction and Access may file a Rule 14 claim against the 700 merchants who house E*TRADE machines within the State.
16 Plaintiffs have no complaint at this time with the merchants. The issues that have been raised by Ddendants concerning the merchants center on the relationship between Access and the merchants, such as who controls entry into the retail establishments for upgrading machines, who controls entry into the workings ofthe ATM itself and who may have to pay for accessibility as between Access and the merchants.
26

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 27 of 28
CONCLUSION Because there are no absent parties with respect to the claims against E*TRADE Bank, because the absent merchants are not necessary parties under Rule 19(a) with respect to the claims against E*TRADE Access and because, even if they were, dismissal is inappropriate under Rule 19(b), Plaintiffs respectfully request that Defendants' motion to join necessary parties or in the alternative dismiss, be denied.
NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAlNTIFFS, By their Attorneys,
Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak & Cohen 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030
\d)~£JjlcLdu~/CNAI Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030
Dated: May 12, 2004

Case 1:03-cv-11206-NMG Document 46 Filed 05/12/04 Page 28 of 28

CERTIFICATE OF SERVICE

I, Christine M. Netski, hereby certify that on the 12th day of May, 2004, I served the within document via e-mail and first-class mail, postage prepaid on the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office ofthe Attorney General One Ashburton Place Boston, MA 02108 patty.correa@ago.state.ma.us Attorney for Plaintiff, Commonwealth of Massachusetts

Joseph L. Kociubes, Esquire Jenny K. Cooper, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe.kociubes@bingham.com jenny.cooper@bingham.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank

Daniel F. Golldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@browngold.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esquire David A. Vogel, Esquire John F. Henault, Jr., Esquire Arnold & Porter 1600 Tysons Boulevard, Suite 900 McLean, VA 22102 douglas_lobel@aporter.com david_vogel@aporter.com john_henault@aporter.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank

Christine M. Netski

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et Plaintiffs,

1~.
E’TRADE ACCESS, INC., et aL,

Defendants.

CASE NO. 03 11206 MEL

REPLY BRIEF IN SUPPORT OF DEFENDANTS’ RULE 12(b)(7) MOTION TO JOIN NECESSARY PARTIES
Plaintiffs’ Oppositions to Defendants E’TRADE Access, Inc. and E*TR_ADE Bank’s
(collectively "E’TRADE") motion to join necessary parties essentially ask this Court to trample on the
property rights of thousands of small businesses in violation of Rule 19, so that Plaintiffs can have the
administrative convenience of pursuing a single lawsuit against two corporate affiliates. Numerous
practical reasons prevent this Court from affording meaningful relief in this lawsuit without affecting the
interests of the merchants that actually own the ATMs at issue:
¯ Plaintiffs misconstrue the language of E*TRADE’s contracts with the merchants, which put responsibility for ADA compliance solely on the merchants.
¯ Plaintiffs cannot articulate any formulation of injunctive relief that would not directly affect the merchants.
¯ Plaintiffs incorrectly argue that the merchants’ financial interests in this litigation are irrelevant to Rule I9. Under the ADA, if the change to the ATMs that the Plaintiffs seek would impose an "undue burden" on the finances of the merchants (which have the ultimate financial obligation to pay for the change), then the ADA does not require the change in the first place.
¯ Finally, Plaintiffs cannot satisfy Rule 19’s requirements that joinder be made by service of process by simply mailing letters to the merchants’ last known addresses.
For the reasons identified in this Court’s recent decision in Frotton v, Barkan, 219 F.R.D. 31 (D.
Mass. 2003), this Court should not atlo~v this lawsuit to proceed without requinng the Plaintiffs to add the
merchants as additional defendants. The fact that there are many of these merchants scattered throughout
562454 1.DOC

the country is no reason to avoid Rule 19; the Plaintiffs have no greater right to injunctive relief for

multiple stores than they would have if their lawsuit concerned only three stores, as in Frotton.~

I.

E*TRADE’S CONTRACTS WITH THE MERCHANTS GIVE THE MERCHANTS SOLE

RESPONSIBILITY FOR ADA COMPLIANCE.

PIaintiffs state that they "have no complaint at this time with the merchants." NFB Opp. at 26

n.16. Instead, Plaintiffs contend that E’TRADE alone has responsibility and authority to make the

changes to the ATMs that Plaintiffs seek~

The only reason E’TRADE has any relationship to these ATMs is that the merchants agreed by

contract to hire E’TRADE to undertake certain data-processing and maintenance services. Any rights

E’TRADE has in the ATMs is derivative of the merchant’s ownership rights, and is provided exclusively

by the merchants through the contracts. As a result, Plaintiffs’ contention that they have "no complaint"

with the merchants is mere sophistry.

The contracts do not transfer any responsibility under the ADA from the merchants to

E’TRADE. The single dispositive language relevant here is in the Site License Agreements, the basic

contract between the merchants and E’TRADE, which state:

1 Plaintiffs misleadingly suggest that E’TRADE was required to raise this issue before filing its Answer, and that the Court must treat E*TRADE’s motion as one for summary judgment. NFB Opp. at 3-4. Plaintiffs are wrong. This is not a motion under Rule 12(b)(6); a motion to join necessary parties under Rule 19, brought pursuant to Rule 12(b)(7), can be made at any time, even during trial. Fed. R. Civ. P. 12(h)(2). AccordingIy, the Court can take evidence and resolve factual matters in resolving E*TRADE’s motion. Raytheon v. Continental Casualty Co., 123 F. Supp. 2d 22, 32 (D. Mass. 2000) (stating that to meet its burden of proof reader Rule 12(b)(7), the moving party may present, and the court may consider, evidence outside of the pleadings); Rivera Rojas v. Loewen Group Int’l, Inc., 178 F,R.D. 356, 360 ("A court on a 12(b)(7) motion may consider evidence outside the pleadings").
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COMPANY [E’TRADE] IN NO EVENT SHALL BE RESPONSIBLE... FOR FAILURE TO COMPLY WITH THE AMERICANS WITH DISABILITIES ACT OR ANY SIMILAR LAW. See, e.g., Declaration of Dale Dentlinger (flied April 16, 2004), at Exhibit l-A, ¶ 19.2 This provision is
specific to the claims at issue in this lawsuit and Plaintiffs cannot avoid it. E’TRADE simply did not
acquire any responsibilities under the ADA from the merchants, so all responsibilities to ensure that the
ATMs comply with the ADA remain ~vith the merchants.
Plaintiffs try to avoid the plain meaning of the contracts by citing to various other provisions, but
none of them negate the express ADA provision. For instance, the Plaintiffs claim that some of the
contracts give E’TRADE the right to enter premises and "upgrade" ATMs at E*TRADE’s "sole
expense." NFB Opp. at 6. These rights, set forth in provisions entitIed "Maintenance/Repair," are
general in nature. The more specific ADA provision, quoted above, is necessarily an exemption from this
general rule. If not, the disclaimer about ADA responsibilities would be rendered meaningless and
superfluous. It is a basic tenet of contract interpretation that the Court cannot read a general provision of
a contract so broad as to render a specific provision meaningless. Cf Lawson v. F.D.LC., 3 F.3d 11, 17
(lst Cir. 1993) ("it is a familiar precept of contract interpretation that the specific controls the general");
DeLuea v. Bear Sterns & Co., 175 F. Supp. 2d. 102, 109 (D. Mass. 2001) ("the basic tenet of contract
interpretation [is] that a contract shall not be construed to have a meaningless clause"))
2 Plaintiffs incorrectly argue that this clause is limited to claims under the ADA for "indirect" damages or "lost profits." NFB Opp. at 19. The contention is specious. The disclaimer regarding ADA liability is set out separately from the disclaimer for lost profits or indirect damages: the SLA says E’TRADE is not liable for lost profits or incidental damages "or" for liability under the ADA. Furthermore, because the ADA does not provide for monetary damages, Plaintiffs’ interpretation would render the provision meaningless. 3 The PIaintiffs similarly try to argue that some of the contracts expressly say that the merchants shall be "solely responsible" for ADA compliance regarding only the "area" around the ATMs. NFB Opp. at 7. This language cannot mean that E’TRADE has responsibility for the ATM itself, because otherwise again the specific disclaimer would be meaningless.
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E*TRADE’s maintenance service contracts reach the same result. An upgrade to the ATM for ADA compliance meets these contracts’ definition of"Additional Services." See, e.g., Dentlinger Decl. at Exh. l-E, ¶ 4.3. E’TRADE does not provide Additional Services to merchants except upon request by the merchants and if the merchants pay for the upgrades, so the maintenance contracts do not give E’TRADE the obligation to upgrade the ATMs to comply with the ADA. Id. ¶ 4.3 & 7.4. Because the maintenance contracts must be read together with the SLAs, see id. ¶ 9.1, it would render the SLAs’ disclaimer language meaningless if the maintenance contracts required E’TRADE to upgrade the ATMs for ADA purposes at E*TRADE’s expense,
Plaintiffs also argue that F~*TRADE is the only party that can make the changes because, allegedly, E’TRADE would have to provide software to make the changes workable. NFB Opp. at 7. Even if it were true, this point is irrelevant; it is simiIar to arguing that the manufacturer of the new ports for the upgraded ATMs would also be a "necessary party" because the manufacturer supplies those critical parts. Even stating the proposition shows its lack of merit. The fact that the merchants must obtain software or parts from other companies to retrofit, allegedly including E’TRADE, does not change the conclusion that the merchants are necessary parties because they are resl~onsible for making and paying for the changes on their premises.
Finally, Plaintiffs complain that E’TRADE has not yet identified the merchants by name, and the Plaintiffs have not seen the actual executed contracts between E*TRADF~ and the merchants, because they are proprietary to E’TRADE. NFB Opp. at 4-5. That issue is now resolved E’TRADE has l~roduced to Plaintiffs all requested documents, including documents sufficient to identify all merchants by name.

II. ANY INJUNCTIVE RELIEF WOULD BE INADEQUATE UNLESS THE MERCHANTS ARE PRESENT AS DEFENDANTS A. Plaintiffs’ Proposed Injunction On E’TRADE Is Wildly Overbroad But Still Directly Affects The Merchants. To create the appearance that the merchants would be unaffected by an injunction against
E’TRADE, Plaintiffs argue that the injunction they seek merely would restrict E’TRADE from making its banking services available at ATMs that are not accessible to the blind. NFB Opp. at 10-11. This proposed injunctive relief is so overbroad that Plaintiffs clearly would never be entitled to it; and in any event, it would still directly affect the merchants.
It is axiomatic that the court must consider not only an injunction’s impact on the defendant, but also on the general public. Aponte v. Calderon, 284 F.3d 184, 191 (lst Cir. 2002) (injunction may not "adversely affect" the public’s interest). Plaintiffs apparently want the Court to cause massive inconvenience to the general public and to completely restructure E*TRADE’s entire line of business. If Plaintiffs obtain an injunction prohibiting E’TRADE from offering its services at the merchants’ ATMs, no one would be able to use these ATMs, simply because a smalI portion of the population allegedly needs assistance to use them. See Complaint, ¶124 (visually-impaired people can use existing ATMs with assistance from otlaers).4 Furthermore, Plaintiffs would modestly require E’TRADE to completely change its entire business strategy, converting from an online banking operation to a traditional bank with "brick-and-mortar" branches. NFB Opp. at 10. Plaintiffs make the offer flippantly, as if E’TRADE would be more able to start leasing and constructing 11,000 branches nationwide instead of replacing 11,000 ATMs, which alone is too costly for E’TRADE to do. Simply stated, the proposed inunction is
4 Indeed, even ifPlaintiff~ get the relief they want -- placing jacks on the ATMs for headset plugs -- visually-impaired people still would need assistance from other people to find the locations of the ATMs.
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wildly overbroad, would cause far more harm to E’TRADE and the public than it would seek to solve, and the Plaintiffs are not entitled to any such relief.~
But even if the Plaintiffs could obtain such an overbroad injunction, the relief still directly affects the merchants. If E’TRADE were forced to cease offering its banking services at these particular ATMs, then the merchants would lose the revenue stream and other related commerce generated by use of the ATMs. In short, the ATMs would become largely worthless. Plaintiffs cannot ignore the direct effect such an injunction would have on the merchants. This direct effect is precisely the reason that the merchants have direct property interests at stake in this lawsuit. See, e.g., Steel Valley Authority v. Union Switch & Signal Div., 809 F.2d 1006, 1014 (3d Cir. 1987) (property owner was necessary party because injunction would "necessarily affect the alienability of [the] property") ; GiambelIuca v. Bravo Basic Materials Co., Inc., 131 F.R.D, 475 (E.D. La. 1990) (property owner was necessary party because proposed inunction would have "preclusive effect" on owner’s use of land).
B. Any Meaningful Relief Necessarily Will Affect The Merchants’ Interests. Because the Plaintiff~ are not entitled to wildly overbroad injunctive relief, the Court must fashion relief specific to the alleged problem -- that the ATMs do not have audio-enabled ports. Plaintiffs do not dispute that to fix this problem, the ATMs must either be changed or replaced entirely. It is inconceivable that this remedy could be done without any effect on the property rights of the merchants that own the ATMs. As explained above, the contracts squarely and solely put all responsibility to comply with the ADA on the merchants, not on E’TRADE. If the Court requires these upgrades, then the
~ Cf City of Waltham v. U.S. Postal Service, 11 F.3d 235,239 (lst Cir. 1.993) (denying injunction that would prohibit Postal Service from proceeding with construction because injunction would not serve the overall public interest in seeing project move forward); City of Cambridge v. Meserve, 693 F.2d 4 (lst Cir. 1982) (affirming lower court’s conclusion that injunction would harm public interests).
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merchants not only would have the ultimate burden of paying for the upgrades, but the merchants necessarily would lose their right under the contract to control the decision of whether to upgrade the ATMs to meet ADA liability (as opposed to, for example, discontinuing use of the ATMs if the merchant subjectively decides that an upgrade is too costly).
1"he recent Frotton case from this District is directly on point but carefully avoided by Plaintiffs. See E’TRADE Mere., at 8-9. There, the Court found contracts unclear as to whether the defendant shopping mall owner or nonparty merchants actuaIly "controlIed" the alleged inaccessibility of the merchants’ stores, For that reason, the Court held that the merchants had to be joined pursuant to Rule 19. The exact same reasoning applies here; the facts are so parallel as to leave no room for dispute. Plaintiffs necessarily give Frotton short shrift, characterizing it as having a "minimum of legal reasoning." NFB Opp. at 20. The decision’s logic speaks for itself. Plaintiffs also try to distinguish Frotton by wrongly claiming that the defendant had "no control" over the stores, which Plaintiffs argue is different from E*TRADE’s alleged "control" over these ATMs. Id. Plaintiffs are simply wrong; in Frotton the Court specificalIy said "it remains to be seen whether, as a matter of contract, [merchants] or [defendant] have control over these alleged barriers." Frotton, 219 F.R.D. at 32.
Plaintiffs try to distinguish numerous cases E’TRADE cited where absent parties were necessary under Rule 19 because they were signatories to contracts giving rise to the disputes at issue in the lawsuit. Plaintiffs argue these cases do not apply because here the court is not "declar[ing] rights under some agreement." NFB Opp. at 22. This argument ignores the virtual entirety of the Plaintiffs’ brief. To resolve Plaintiffs’ claims, the Court necessariIy must declare E*TRADE’s rights under the contracts with the merchants. Not only do the contracts determine whether the merchants are necessary parties, but they also demonstrate that E’TRADE is not an "operator" of the ATMs and therefore is not subject to the ADA with respect to the ATMs. See Neffv. American Dairy Queen Corp., 58 F.3d 1063, 1067-69 (5th
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Cir. 1995) (party "operates" a place of public accommodation under the ADA if it has been given "control" of place pursuant to contracts; thus defendant franchiser was not "operator" because it only had "supervisory authority" over franchisee). To resolve both of these issues, the Court is going to have to adjudicate the respective rights of E’TRADE and the merchants under E*TRADE’s contracts in order to decide the merits of this Iawsuit -- precisely the reason in Frotton that the merchants were necessary parties. III. E’TRADE CANNOT ADEQUATELY REPRESENT THE MERCHANTS’ INTERESTS.
Plaintiffs argue that E’TRADE will raise all of the arguments that the merchants would have made if they were present here. NFB Opp. at 17. Indeed, Plaintiffs opine that it is "hard to conceive of any divergence of interests" between E’TRADE and the merchants. Id, That misstates the issue; the question is whether E’TRADE can "adequately represent" the interests of the merchants, and for that question, E’TRADE must have a "perfect identity" of interests with the merchants. Tell v. Trustees of Delaware Coll., 145 F.3d 417, 419 (lst Cir. 1998) (existing party must have "same" interests as absent party; "without a perfect identity of interests, a court must be very cautious in concluding that a litigant wilI serve as a proxy for an absent party" (emphasis added)).
In fact, E’TRADE is in no position to raise or litigate defenses under the ADA that are unique to each and every merchant. Consequently, Plaintiffs cannot avoid joining the merchants to this lawsuit by claiming that E’TRADE could adequately protect their interests.
A. The Financial Impact On The Merchants Is Directly Relevant To The Merits Of Plaintiffs’ Claims Under The ADA.
The ADA states that accommodations need not be made tbr disabled persons if the accommodations impose an "undue burden." Under the Department of Justice’s implementing regulations, whether an accommodation is an "undue burden" depends on whether the party that must undertake the accommodation would experience "significant difficulty or expense." 28 C.F.R. § 36.104
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(defining "undue burden"). The regulations require that one consider the "overall financial resources" of the person, including its size and income. Id. This analysis necessarily is specific to the circumstances of each person subject to the ADA. Cf Morton .v United Parcel Serv., Inc., 272 F.3d 1249, 1262 (9th Cir. 2001) (analysis of "undue burden" requires "particularized inquiry" regarding the particular litigants).
Plaintiffs acknowledge that the issue of "undue burden" is highly fact specific. In response to E*TRADE’s interrogatories, Plaintiffs articulated that they believe the accommodations they seek are not "undue burdens" because the value of ATMs to E*TRADE’s entire business justifies the cost of the accommodations. See, e.g, NFB’s Responses to E*TRADE’s First Set of Inteivogatories, No. 13, attached hereto as Exhibit l.
The question of whether E’TRADE can afford the accommodations is entirely different than whether the accommodations impose "undue burdens" on the small business merchants that have the ultimate financial obligation to finance the accommodations the Plaintiffs seek. For example, if a particular ATM retrofit costs several thousand dollars, the question of whether E’TRADE can or should aflbrd that cost is totally different when looking at the value of an ATM to a specific "7-Eleven" store in a small town in rural Massachusetts.
E’TRADE is in no position to raise these issues specific to each and every merchant. Each merchant, not E’TRADE, knows the "value" of its ATM to its business and only the merchant, not E’TRADE, can describe whether the proposed accommodation is an "undue burden" to the merchant. E’TRADE in no way can make these arguments for the merchants and therefore E’TRADE is inadequate to represent the merchants’ interests.
B. The Merchants’ Interests Are Not Merely Those Of Indemnification Or Contribution.
Plaintiffs ~vrongly dismiss the fact that the merchants ultimately will have to pay for these accommodations as merely "indemnification" issues or questions of "joint tortfeasors." NFB Opp. at 19-
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20. But this lawsuit presents far more than issues of indemnification or joint tortfeasors. Unlike a generic tort or breach of contract case, the ADA makes the financiaI condition of the person paying for the accommodation directly relevant to the merits of whether the accommodation is required in the first place. The issue of the financial impact on the merchants cannot be brushed aside as a question of "indemnification." Plaintiffis simply have no cause of action in the first place if the relief they seek imposes an "undue burden" on any particular merchant that has the obligation to pay for the upgrade.
For this same reason, the Commonwealth’s suggestion that E’TRADE can bring third-party complaints against the merchants under Rule 14 is incorrect. Commonwealth Opp. at 2. Rule 14 is a "narrow device" limited to indemnification or contribution actions by the defendant against third parties, to collect money that the defendants might be judged to owe the plaintiffs. DeHass v. Empire Petroleum, Inc., 286 F. Supp. 809, 815 (D. Colo. 1968) (Rule 14 is "narrow device" to assert indemnification claims, and "cannot be used as a method of bringing into controversy other matters which happen to have some relationship to the original action"); see also Moore’s Fed. Prac., § 14.04 (Rule is "narrower" than Rule 19; purpose of Rule 14 is merely to ensure defendant does not suffer inconsistent judgment on an indemnification or contribution claim against third party); Wright & Miller, Fed. Prac. & Proc. § 1446 (Rule 14 only applies where third party is "secondarily liable" to defendant if defendant loses action to plaintiff). For the reasons explained above, the merchants’ role is far beyond that of an indemnifier or joint tortfeasor. Consequently, Rule 14 does not apply. One cannot conceive what kind of third-party complaint E’TRADE could bring against the merchants if the Plaintiffs prevail in obtaining injunctive relief against E’TRADE; Rule 14 does not establish any kind of procedure where a defendant can pass off to third parties an obligation to perform an injunction. The cases Plaintiffs’ cite are inapposite because they involve mere indemnification actions by defendants against third parties.
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IV. PROVIDING NOTICE TO MERCHANTS OF THIS LAWSUIT IS INSUFFICIENT TO SATISFY RULE 19 REQUIREMENTS. Plaintiffs invite the Court to ignore Rule 19’s mandatory requirements by permitting the
merchants to be given "notice" of the lawsuit and allowing them to intervene pursuant to Rule 24. NFB Opp. at 18; Commonwealth’s Opp. at 2. The invitation is specious because it is black-letter taw that the Court cannot use intervention procedures under Rule 24 to avoid the mandate of Rule 19.
Rule 19(a) mandates that the Court "shall join" necessary parties. By contrast, Rule 24 does not provide any such thing as "compulsive" intervention. The Supreme Court has made it clear that if a party’s interest is affected by a lawsuit, the Court must resort to joinder under Rule 19 and may not force that party to intervene under Rule 24 to protect its interests. Martin v. Wilks, 490 U.S. 755, 756 (1989) ("Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potentiaI parties are subjected to the jurisdiction of the court and bound by a judgment or decree"). if this Court were to deny E*TRADE’s Rule 19 motion on the grounds that the merchants could intervene if they choose, then the Court: would be reading Rule 19 out of existence. For instance, the Court would be replacing strict service of process rules under Rule 4 with a procedure where a letter is mailed to a last known address. Courts therefore cannot permit an absent party’s purported ability to intervene as a replacement for the Rule 19 analysis. Traveler’s Indem. Co. v. Dingwell, 884 F.2d 629, 636 (lst Cir. 1989) ("[A]bility to intervene cannot control the indispensability determination, which examines whether a party is an essential part of the controversy before the court").
None of Plaintiffs’ citations stand for a different proposition. Plaintiffs cite a number of cases where parties aligned with plaintiff, chose not to intervene, and courts therefore held they were not necessary parties. See NFB Opp. at 18. That situation - where a party was not even known to be asserting the claims at issue in the litigation - is inapposite to the case here, where merchants would be
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aligned with E’TRADE as defendants and forced to defend themselves. Martin, 490 U.S. at 759 (no such thing as "compulsory intervention" for absent parties to be aligned as defendants).
Plaintiffs take out of context a quote from the Advisory Committee’s Notes under Rule I9. NFB Opp. at 18. The Advisory Committee suggests that letters might be sent to absent parties, but nowhere does it say that mailing letters serves as a replacement for joinder by service of process. Instead, the quoted provision relates to Rule 19(e), which concerns situations (not applicable here) where a plaintiffs pleads that it is unable to name necessary parties. Nowhere does authority exist that Rule 19(c) replaces Rules 19(a) and (b).
Practical problems run amok with this proposed procedure. What is the Court to make of a decision by a small business, located in a distant corner of Massachusetts if not a completeIy different state, not to intervene in this lawsuit? Plaintiffs want the Court to draw the uniform conclusion that every such merchant must not care about the litigation. NFB Opp. at 18. But numerous reasons might exist why merchants do not affirmatively intervene, including: lack of actual notice, for example a failure of the notice ef/brt; lack of an understanding of the significance of the lawsuit; lack of resources; and, most importantly, a calculated decision to avoid any inunction in the lawsuit by not becoming a named party. See, e.g., Martin, 490 U.S. at 762 (cannot conclude a party was uninterested merely because it chose not to intervene).
Because the merchants’ interests are directly affected by this lawsuit and E’TRADE does not and cannot adequately represent them, Rule 19(a) mandates that the Court "shall" join the merchants as necessary parties, an action which must be accomplished by serving process on the merchants pursuant to
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Rule 4. Plaintiffs cannot avoid this mandatory role by asking for a mass mailing of letters to last-known addresses,e V. NO PURPOSE WOULD BE SERVED IN PROCEEDING WITH TillS LAWSUIT.
Finally, Plaintiffs invoke Rule 19(b)(4), arguing that because the merchants are necessary parties but most are not subject to service of process in this District, Plaintiffs would be forced to file lawsuits in different states. NFB Opp. at 23-25. The premise of their argument, of course, is that this lawsuit against E’TRADE alone provides some kind of meaningful relief, and Plaintiffs thus do not want to be inconvenienced with having to file additional Iawsuits.7
In determining whether to dismiss a lawsuit because necessary panics cannot be joined, Rule 19(b) sets forth four factors that the Court must balance; no one factor is always deciding. Travelers Indem., 884 F.2d at 634 (Rule 19(b) analysis requires "balancing" of facts for each specific case); accord Associated DO’ Goods’ Corp. v. Towers" Fin. Corp., 920 F.2d 1121, 1124 (2d Cir, 1990) (Rule 19(b) does not assign relative weights but allows courts to balance them in each lawsuit). These factors are:
6 Similarly, without any analysis whatsoever, the NFB asks the Court to have a "defendant class." NFB Opp. at 26. First, the First Circuit recently held that Rule 23 does not contemplate defendant classes. Tilley v. TJXCompanies, Inc., 345 F.3d 34 (I~t Cir. 2003). Second, even if it did, NFB has not come close to meeting Rule 23, which requires that the NFB assert claims against a typical class representative and that the NFB show the conditions of Rule 23(b) are present. 7 Plaintiffs nonsensically ask the Court not to let E’TRADE brief this issue on Reply because, as Plaintiffs put it, a Reply brief cannot address an issue "for the first time." NFB Opp. at 22. But the "first time" the issue was raised was in Plaintiffs’ Opposition, not this Reply.
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[F]irst, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be Iessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whetlher the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Plaintiffs completely ignore the first three factors and focus entirely on the fourth.
The first three factors fall squarely in E*TRADE’s favor. First, proceeding in the absence of the indispensable merchants severely prejudices the merchants’ property interests in the ATMs they own.
Second and third, complete relief is not possible without avoiding prejudice to the merchants’ ownership interests. No injunction is possible that simultaneously would cause a physical change to the merchants’ ATMs but at the same time have no impact on the merchants’ property rights in these ATMs. Cf Steel
Valley, 809 F.2d at 1014 ("We cannot envisage how such prejudice could be lessened or avoided if an
inunction, no matter how shaped, were to issue"); Kansas City Royalty Co., L.L.C.v. Thoroughbread Assocs., L.L.C., 215 F.R.D. 628, 635 (D. Kan. 2003) ("the Court cannot envision how it could award plaintiffs the requested relief without taking a portion of an interest of a non-paW...’); Cross Timbers
Oil Co. v. Rosel Energy, Inc., I67 F.R.D. 457, 460 (D. Kan. 1996) ("[I]n light of plaintiffs’ claim for
injunctive relief, we can see no way to fashion an order enjoining future production so as to protect the interests of the absent joint venturers").
With regard to the final factor, no question exists that the Plaintiffs have available remedies -
just, it appears, not in one forum. Plaintiffs would have this Court ignore the first three factors entirely and maintain this lawsuit merely for that reason. Courts will not proceed with a lawsuit that cannot
provide complete relief and that severely injures rights of absent parties, simply because multiple lawsuits mxght be required. Cf Maritimes & Northeast Pipeline, L.L.C. v. 16.66 Acres of Land, More or Less, In
The City of Brewer and Towns of Eddington and Bradley, County of Penobscot, State of Maine, 190

F.R.D. 15, 20 (D. Maine 1999) (conclusion that Rule 19 required dismissal of case "not altered" by fact

that claim would have to be taken to "multiple state courts").

Cases cited by the Plaintiffs, see NFB Opp. at 24-25, did not present such a stark situation; in

each case, relief against the named defendant was adequate to some extent and therefore no reason existed

to require lawsuits in different states. But because an injunction against E’TRADE alone is inadequate,

for all of the reasons described above, no purpose is served in proceeding with this lawsuit as it is

currently constituted. Cf Davis ex rel. Davis v. United States, 343 F.3d 1282, 1293 (10th Cir. 2003) (lack

of available forum was out~,eighed by other three factors, which favored dismissal of action to avoid

prejudice to absent part3").

Finally, filing of multipl.e lawsuits does not mean there must be a multiplicity of proceedings.

Plaintiffs or defendants easily could invoke the multidistrict litigation procedures under 28 U.S.C. § 1407

and have all cases transferred to a single court for uniform discovery and other pre-trial procedures,

including motions for summary judgment.

CONCLUSION

For these reasons, as well as those in E*TRADE’s initial Memorandum, E’TRADE respectfully

requests that the Court grant its motion and order the Plaintiffs to amend their complaint to join the

merchants as necessary parties, or dismiss this lawsuit if PIaintiffs do not join the merchants within a

reasonable time.

Respectfully submitted,
E*TP~ADE Access, INc. and
E’TRADE BANK,
By their attorneys,

Joseph L. Kociubes BBO # 276360 Rachael Splaine Rollins BBO # 641972
BINGHAM MCCUTCHEN LLP
150 Federal Slreet Boston, Massachusetts 02110 (617) 951-8000
-15-

Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000

Dated: July 29, 2004

CERTIFICATE OF SERVICE

I, Rachael Splaine Rollins, hereby certify that on July 29, 2004, I caused a copy of the foregoing document to be served, via electronic and first class mail, upon the following counseI of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 patty.correa~a~o.state.ma.us Attorney for Plaintiff Commonwealth of Massachusetts

Douglas P. Lobel, Esq.

David Vogel, Esq.

Arnold & Porter

1600 Tysons Blvd., Suite 1200

McLean, VA 22102

Dpuglas Lobel~aporter.com

David Vogel~aporter.com

Attorneys for Defendants,

r,.:

E’Trade Access, Inc:;. and

.-~

E’Trade Bank :-

Anthony M. Doniger, Esquire Christine M. Netski, Esquire Sugamlan, Rogers, Barshak & Cohen, P.C, 101 Merrimac Street Boston, MA 021 I4-4737 dpni~er(~srbc.com Attorneys for Plaintiffs, National
Federation of the Blind, Inc., National Federation of Blind of Mussaehusetts, Inc.,Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Rachael Splaine l~ollins~’-

-16-

B!:N~IH AM McCUTCHEN -. ~, i’iASS.
Raquel J. Webster Direct Phone: (617) 951-8508 Direct Fax: (617) 951-8736 raquei.webster@bingham.com
July 29, 2004
By Hand
Clerk’s Office United States District Court United States Courthouse One Courthouse Way Boston, Massachusetts 02109
Re: Commonwealth of Massachusetts, et al. v. E* Trade Access, Inc., et al.; Civil Action No. 03 11206 MEL
Dear Sir or Madam:
Enclosed for filing in the above-referenced matter, please find the original, together with a copy marked "Chambers Copy," of Defendants’ Reply Brief.
Please stamp the enclosed additional marked "Copy" with the date and fact of filing and return it in the enclosed self-addressed, stamped envelope.
Thank you for your assistance in this matter.
Very truly yours,

encls.
CC:

Patricia Correa, Esq. Anthony M. Doniger, Esq.
Christine M. Netski, Esq. Daniel F. Goldstein, Esq.
Sharon Krevor-Weisbaum, Esq. Douglas P. Lobel, Esq.
David Vogel, Esq. Joseph L. Kociubes, Esq. Jenny K. Cooper, Esq. Rachael Splaine Rollins, Esq.

 
 Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
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COMMONWEALTH OF MASSACHUSETTS, )

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Plaintiffs, )

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E*TRADE ACCESS, INC., et al.,

)
) Defendants. )

CASE No. 03 11206 MEL

------------------------------)

MEMORANDUM IN SUPPORT OF DEFENDANTS' RULE 12(c) MOTION FOR JUDGMENT ON THE PLEADINGS

Dated: November 9,2004

Respectfully submitted,
E*TRADE ACCESS, INC., E*TRADE BANK and CARDTRONICS LP
By their attorneys,
Joseph L. Kociubes BBO # 276360 Jenny K. Cooper BBO # 646860 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000

VA- 732055- 2.Doe

Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 2 of 20
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ ii REGULATORY BACKGROUND ................................................................................................ 2 I. THE 1991 ADAAG'S "GENERAL PERFORMANCE"
REQUIR.EMENT FOR ATMS........................................................................................... 2 A. The 1991 ADAAG.................................................................................................. 2 B. Proposal For Headphone Jacks............................................................................... 3 C. Braille Pennitted..................................................................................................... 4 II. THE 2004 ADAAG'S DESIGN REQUIREMENT FOR TALKING ATMS .................... 4 III. THE DO]' S SEPTEMBER 2004 ANPRM AND FORTHCOMING ADOPTION OF THE 2004 ADAAG.................................................. 5 RELEVANT FACTUAL BACKGROUND ................................................................................... 5 I. PLAINTIFFS ALLEGE THAT ATMS VIOLATE THE ADA BECAUSE THEY ARE NOT TALKING ArMS AND LACK HEADPHONE JACKS.................... 5 II. PLAINTIFFS DEMAND AN INJUNCTION REQUIRING DEFENDANTS TO RETROFIT ATMS WITH HEADPHONE JACKS .......................... 7 STANDARD OF REVIEW ............................................................................................................ 7 ARGUMENT .................................................................................................................................. 8 1. PLAINTIFFS' INTERPRETATION OF THE ADA IS CONTRARY TO THE EXISTING REGULATIONS .................................................. 8 II. THE PLAINTIFFS HAVE NO VALID CAUSE OF ACTION UNDER THE ADA........ 9 A. Congress Directed That The DO]' s Adoption Of
The ADAAG Solely Detennines ADA Obligations............................................... 9 B. The DOJ's Adoption Of The New 2004 ADAAG
Will Be Dispositive And Will Moot This Lawsuit. .............................................. 11

Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 3 of 20 lIT. THE PLAINTIFFS ALSO DO NOT HAVE
A VALID ACTION UNDER STATE LAW.................................................................... 13 A. The Massachusetts Public Accommodations Act
Does Not Provide Standards Different Than The ADA. ...................................... 13 B. The Massachusetts Equal Rights Act Does Not
Provide An Independent Standard For ATMs...................................................... 14 CONCLUSION ............................................................................................................................. 15
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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 4 of 20
Current regulations implementing the Americans with Disabilities Act ("ADA") specifically bar the injunctive relief Plaintiffs' demand: "talking" automated teller machines ("ATMs") with headphone jacks. Plaintiffs claim that the ATMs at issue in this litigation violate the ADA unless they are retrofitted with "voice-guidance" technology (headphone jacks) through which blind users can receive audio instructions. Amended Complaint, filed July 22, 2003 ("Complaint"), ,-r 28 ("The only effective means to make [these] ATMs accessible to blind people is through voice guidance technology. Voice guidance technology allows a blind person to plug a personal headphone into a universal audio jack and hear the step-by-step instructions as they appear on the ATM screen.").
However, the agencies that Congress directed to interpret and enforce the ADA - the Department of Justice ("DOJ") and the Architectural and Transportation Barriers Compliance Board ("Access Board") - expressly rejected a mandatory requirement for "talking ATMs" with headphone jacks. That is the law today. The only federal court to confront this issue concluded that "talking ATM's are not even required by the [regulations]." Association for Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 475 (S.D. Fla. 2002).
Plaintiffs cannot impose obligations on ATMs under the ADA that the DOJ and Access Board themselves expressly rejected. In a decision directly on point, United States v. National Amusements, Inc., 180 F. Supp. 2d 251 (D. Mass. 2001), Chief Judge Young held that the DOl's regulations (adopting the Access Board's Guidelines) establish the limits of ADA liability, and no ADA claim exists beyond the agencies' standards.
Plaintiffs are not claiming that the ATMs lack any accommodations for blind people. Instead, Plaintiffs are asserting that the ATMs lack the specific accommodation of headphone jacks - a claim the existing regulations preclude. Therefore, pursuant to Fed. R. Civ. P. 12(c)
VA- 732055- 2.Doe

Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 5 of 20

the Court should dismiss Plaintiffs' claim that the ADA requires talking ATMs with headphone jacks. Because Massachusetts state law does not impose any additional obligations, the Court also should dismiss the Plaintiffs' state-law claims.
REGULATORY BACKGROUND I. THE 1991 ADAAG'S "GENERAL
PERFORMANCE" REQUIREMENT FOR ATMS. A. The 1991 ADAAG. The DOl's current regulations for ATMs were first specified in the 1991 guidelines from the Access Board, called the "ADA Accessibility Guidelines for Buildings and Facilities" (commonly known as the "ADAAG"). See 56 Fed. Reg. 35,408 (1991), relevant parts attached hereto as Exhibit I.' The DOJ adopted the 1991 ADAAG into federal regulations, without changes. 56 Fed. Reg. 35,544 (1991), codified at 28 C.F.R. pt. 36 App. A, relevant parts attached hereto as Exhibit 2; National Amusements, 180 F. Supp. 2d at 255 (DOJ adopted 1991 ADAAG "in their entirety"). One of the ADAAG's specific provisions sets forth accessibility requirements for ATMs. See 1991 ADAAG, Part 4.34, at Exh. 1; 28 C.F.R. Pt. 36 App. A § 4.34, at Exh. 2. It includes the following requirement concerning use of ATMs by blind people:
Equipment for Persons with Vision Impairments. Instructions and all information for use shall be made accessible to and independently usable by persons with vision impairments. 1991 ADAAG Part 4.34.4, at Exh. 1; 28 C.F.R. Pt. 36 App. A § 4.34.5, at Exh. 2.2

The Access Board is a federal agency created by the Rehabilitation Act, 29 U.S.c. § 792, that "focuses on

the elimination of architectural, transportation, communication, and attitudinal barriers confronting people with

disabilities." Caruso v. Blockbuster-Sony Music Entert. Ctr., 193 F.3d 730,731 n.2 (1999).

2

The number of this provision changed from 4.34.4 to 4.34.5 in 1992. The Board and OOJ inserted

additional requirements about the physical dimensions of ATMs, in response to various comments from industry.

See 57 Fed. Reg. 41,006, 41,012 (1992). The "independently usable" provision did not change in this process. Id

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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 6 of 20
In the comments accompanying its final adoption of the 1991 ADAAG, the Access Board
provided a lengthy explanation of the key phrase "independently usable." 56 Fed. Reg. 35,408
(1991), relevant pages attached hereto as Exhibit 3. The Access Board had "over 50 different
suggestions" for making ATMs more useful to blind people, including "a 'talking machine'" and
"using a consumer electronics bus or universal interface bus for output accessibility." Id. at
35,441, at Exh. 3. But the Access Board rejected these suggestions, and instead opted for the
regulations to have a "flexible" performance requirement:
In light of the evolving technology in this area and to allow flexibility in design, the Board has stated the requirement for accessibility for persons with vision impairments in general performance terms. No changes were made to this section from the proposed rule which provides that instructions and all information for use of ATMs shall be made accessible to and independently usable by persons with vision impairments.... IT/he Board has chosen to maintain its position offlexibility in this area. Id. (emphasis added).
B. Proposal For Headphone Jacks.
In addressing how to make ATMs more accessible to the disabled, the Access Board
solicited suggestions for increasing the security of ATMs to the disabled. Among the
suggestions it received was the proposal that ATMs ''providleJ . •. jacks so personal
headphones can be plugged into an ATM." Id. at 35,442. The Board expressly refused to
require these headphone jacks, observing:
Based on the response that the Board received concerning these areas [of security], it is apparent that security and privacy are issues of general concern which apply to all ATM users and not just to individuals with disabilities and are issues which the industry must address. Until such time as additional research can be conducted into the issues of security and privacy at ATMs, the
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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 7 of 20
Board does not propose to include requirements for such measures.
ld. C. Braille Permitted. Although not specifically required, the Access Board suggested that ATMs could comply
with the ADA by having Braille or "large print" instructions: While not stated specifically in the rule, braille [sic] and large print instructions ... when used in conjunction with tactually marked keys or other means of identification, do serve as one source of accommodation for persons with vision impainnents.
ld. at 35,441. By contrast, Plaintiffs have told this Court numerous times (and alleged in their Complaint) that Braille is an inadequate accommodation for most blind persons. II. THE 2004 ADAAG'S DESIGN REQUIREMENT FOR TALKING ATMS.
On July 23, 2004, the Access Board issued its first substantial revision to the 1991 ADAAG (the "2004 ADAAG"). 69 Fed. Reg. 44,084 (July 23, 2004), relevant portions attached hereto as Exhibit 4. The 2004 ADAAG would require that ATMs have jacks for headphones: ATMs "shall be speech enabled," which "shall be delivered through a mechanism that is readily available to users, including but not limited to, an industry standard connector or a telephone handset." 2004 ADAAG Part 707.5, at Exh. 4.
Significantly, however, the new regulations do not apply to existing ATMs. The Board explained that it "does not generally have jurisdiction over requirements for existing facilities that are otherwise not being altered." 69 Fed. Reg. at 44,136. Specifically with respect to the question of whether the new headphone jack requirement will be applied to existing ATMs, the Board observed,
How, and to what extent, the Board's guidelines are used for purposes of retrofit ... is wholly within the purview of DOl It is
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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 8 of 20
the Board's understanding that DO] is aware of the concern as raised by various commenters generally and that DO] plans to address these concerns in its rulemaking to revise its ADA standards pursuant to the Board's final rule. ld.; accord 2004 ADAAG, Part 101.2, at Exh. 4. III. THE DOJ'S SEPTEMBER 2004 ANPRM AND FORTHCOMING ADOPTION OF THE 2004 ADAAG. The DO] has already initiated the rulemaking proceeding to conclusively adopt the 2004 ADAAG into its regulations and to determine whether existing ATMs should be retrofitted with headphone jacks. On September 30, 2004, the DO] released an Advance Notice of Proposed Rulcmaking ("ANPRM"), 69 Fed. Reg. 58,768 (Sept. 30, 2004), attached hereto as Exhibit 5, stating DOl's intention to adopt the 2004 ADAAG into regulation, and soliciting public comments about this decision. [d. at 58,768,58,787. Specifically, the DO] sought comments on whether the new requirements in the 2004 ADAAG, including the requirement for "talking ATMs" and headphone jacks, should apply to "existing facilities." The DO] voiced concern that "the incremental changes in ADAAG may place significant cost burdens on businesses that have already complied with the ADA Standards in their existing facilities." Id. at 58,771. To determine if retrofitting of existing ATMs will be required, the DO] seeks comments on various options, including grandfathering existing ATMs into the 1991 ADAAG's requirements, and reducing or exempting the scope of the changes in the new regulations for existing ATMs. Id. at 58,771-72.
RELEVANT FACTUAL BACKGROUND
I. PLAINTIFFS ALLEGE THAT ATMS VIOLATE THE ADA BECAUSE THEY ARE NOT TALKING ATMS AND LACK HEADPHONE JACKS. The Court is familiar with claims in this lawsuit. Plaintiffs allege that certain ATMs
owned, leased or operated by Defendants E*TRADE Bank ("E*TRADE"), E*TRADE Access,
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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 9 of 20
Inc. ("Access"), and now Cardtronics LP ("Cardtronics") (jointly "Defendants"), do not comply
with the ADA because, allegedly, the ATMs are not accessible to blind people.
The Plaintiffs' sole allegation is that these ATMs do not have headphone jacks. At some
length, the Complaint describes the Plaintiffs' belief that an ATM is not accessible to blind
people unless it is a "talking ATM" that provides audio instructions over headphones: Plaintiffs
allege that ATMs lacking any talking capability are not accessible to blind people:
E*TRADE-operated ATMs are inaccessible because they use computer screen text prompts that are undetectable to blind people to guide customers through banking transactions. These computer screen text prompts are not translated into a medium accessible to the blind, such as audio output.
As a result of this inaccessibility, [blind people], unlike persons without visual impairments, are not able to independently use [these] ATMs.
Complaint ~~ 22 & 24. Plaintiffs leave no question as to their interpretation of the ADA's requirements. Plaintiffs allege that an ATM can comply with the ADA only if it is a talking
ATM with headphone jacks:
The only effective means to make [these] ATMs accessible to blind people is through voice-guidance technology. Voice guidance technology allows a blind person to plug a personal headphone into a universal audio jack and hear the step-by-step instructions as they appear on the ATM screen. [d. ~ 28. Plaintiffs confirm this position when - in conflict with the Access Board - they
allege that ATMs with Braille instructions are not, in their view, compliant with the ADA:
Although some [of these] ATMs have Braille keypads and labels, this feature is not an effective accommodation under the ADA:
a. Not all persons who are blind read Braille. In fact, current national figures estimate a Braille literacy rate of only 15% among persons who are blind; and
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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 10 of 20

[d. ~ 27.

b. Braille keypads and labels are static and do not provide sequential computer screen instructions or any information about the contents of any given screen.

II. PLAINTIFFS DEMAND AN INJUNCTION REQUIRING DEFENDANTS TO RETROFIT ATMS WITH HEADPHONE JACKS. Plaintiffs allege three causes of action under the ADA, alleging violations of various
sections of Title III of the ADA. Id. ~~ 31-51, citing 42 U.S.C. §§ 12182(a), (b)(2)(A)(ii) & (iii). For each of the three causes of action, Plaintiffs state that the alleged violations cause the ATMs not to be "independently usable" by blind people. Id. ~~ 34, 37 & 40. Plaintiffs demand an injlmction ordering Defendants "to make the necessary modifications to the ATMs . . . so that blind people may have access to and independently use these ATMs." Id. at 14.
Based on Plaintiffs' statement in Complaint '128 that the "only effective means to make [these] ATMs accessible to blind people is through voice guidance technology," and describes that technology as the use of headphone jacks to provide "step-by-step instructions" to blind people using the ATMs, it is clear that the injunctive relief Plaintiffs' demand is for an order requiring Defendants to change the ATMs into talking ATMs with headphone jacks.

STANDARD OF REVIEW The standard for review of this motion for judgment on the pleadings is identical to the standard to review a Fed. R. Civ. P. 12(b)(6) motion to dismiss: the Court must dismiss a claim if no set of facts alleged by the Plaintiffs would entitle the Plaintiffs to relief. Collier v. City of Chicopee, 158 F.3d 601, 602 (1 st Cif. 1998). The well-pleaded factual allegations of the complaint must be taken as true, but the ultimate issue under Rule 12(c) is whether the complaint, so read, sets forth facts sufficient to allow recovery on a cognizable legal theory. TAGIICIB Servs., Inc. v. Pan Am. Grain Co., 215 F.3d 172,175 (1 st Cir. 2000).

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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 11 of 20
ARGUMENT Forthcoming regulations will change the law and will require talking ATMs for new ATMs, but no basis exists for this lawsuit to continue with regard to existing ATMs.3 I. PLAINTIFFS' INTERPRETATION OF THE ADA IS CONTRARY TO THE EXISTING REGULATIONS. Merely comparing the Plaintiffs' complaint to the 1991 ADAAG disposes of PlaintifIs' interpretation of the ADA. Plaintiffs want this Court to rule that the ADA requires talking ATMs with headphone jacks. The 1991 ADAAG's terse requirement (in Part 4.34.5) that ATMs be "independently usable" by blind people would superficially appear to support Plaintiffs' interpretation. However, the Access Board's explanation of this language rebuts Plaintiffs' interpretation and is fatal to Plaintiffs' lawsuit: the Access Board expressly refused to mandate headphone jacks. Naturally, the only federal court to address this issue concluded that the regulations do not require talking ATMs with headphone jacks. Association For Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 475 (S.D. Fla. 2002) ("[T]alking ATMs are not even required by the ADA accessibility guidelines"). The Access Board's comments with the 2004 ADAAG further demonstrate that the 1991 regulations do not require headphone jacks. When commenters complained that the new 2004 ADAAG would impose costs on companies to retrofit ATMs, the Access Board said that the decision whether to "retrofit" existing ATMs was within the sole discretion of the Department of Justice. 69 Fed. Reg. at 44,136. This statement only makes sense if the existing regulations do not require headphone jacks; if the current regulations already required headphone jacks, then no issue would exist concerning whether to "retrofit" ATMs.
Defendants' argument in this Motion has nothing to do with whether any of the Defendants are "owners," "lessors" or "operators" of ATMs - which has been the principle factual dispute between the parties to date. Solely for the purposes of this motion, the Court can assume that the Defendants are operators of ATMs.
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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 12 of 20

II. THE PLAINTIFFS HAVE NO VALID CAUSE OF ACTION UNDER THE ADA. Plaintiffs' lawsuit fails for two independent reasons. First, the ADA prohibits any claims
to enlarge the DOl's implementing regulations. National Amusements, 181 F. Supp. 2d at 255, 257 & 262. Second, the lawsuit is a premature attempt to prejudge the forthcoming regulations that the DO] will soon issue to implement the new 2004 ADAAG requirements.
A. Congress Directed That The DOJ's Adoption Of The ADAAG Solely Determines ADA Obligations.
It is the 1991 regulations, not the more general statutory provisions of the ADA itself, that that establish accessibility obligations. In National Amusements, this Court rejected a plaintiffs attempt to enlarge the requirements in the 1991 regulations (regarding accessibility of movie theatres to wheelchairs) by trying to state an independent cause of action under the ADA's statutory requirements. The Court dismissed the cause of action under the ADA and held that the ADA does not impose any obligations other than those provided in the DOr s 1991 regulations, explaining, "Congress unambiguously intended compliance with the specific regulations of the Attorney General and the Access Board to be sufficient to satisfy the requirements under Title III of the ADA." 180 F. Supp. 2d at 257.
The Court's decision rests on four separate grounds. First, "[b]oth the statutory language and structure ofthe ADA" supports the conclusion that the ADA is enforced exclusively through "a complex regulatory scheme." Id. at 257. The ADA "reveals Congress's intent at all times to have regulations set forth standards that, jf met would satisfy Title III obligations." Id. at 258.4

4

Congress explicitly required both promulgation of the ADAAG and the DOl's adoption of regulations

based on the ADAAG. First, the ADA required the Access Board to issue by March 1991 "minimum guidelines"

that establish compliance with Title III of the ADA (under which Plaintiffs assert their causes of action). 42 US.c.

§ 12204(a). Second, the ADA required the DOJ to issue by July 1991 regulations "to carry out the provisions" of

the ADA "that include standards applicable to facilities and vehicles covered under section 12182 of this title." 42

U.S.c. § 12186(b). Congress required that the DOl's regulatory standards must be "consistent" with the Access

Board's guidelines. Id. § 12186(c). Congress deliberately wrote general standards in the ADA and expected the

DOJ to fill in the details. Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 707 (D. Or.

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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 13 of 20
Second, both the ADAAG and DOl's regulations themselves stated that "compliance with the regulations ... is alone sufficient to satisfy Title III obligations." Id. at 258-59. Third, as a matter of policy, it would "place the judiciary in the uncomfortable position of having to fashion complex, technical rules of design under the guise of statutory interpretation." [d. at 260-61. Fourth, the statute remained vital because it continued to prohibit discriminatory activities, such as refusal to admit disabled people into theatres - but any claim about inaccessible design was limited by the language of the regulations. Id. at 261-62.
The First Circuit supported Chief Judge Young's dismissal of the ADA claim. United States v. Hoyt Cinemas Corp., 380 F.3d 558 (1st Cir. 2004). The appeal concerned plaintiffs' claim under the regulations themselves, not under the ADA's statutory requirements. The First Circuit agreed with Chief Judge Young's decision that ADA liability was limited to the requirements specified in the regulations, observing that:
[I]t makes more sense to focus upon a somewhat uncertain regulation directed to the very problem at hand rather than an even vaguer set of statutory provisions framed in more general terms. Id. at 565-66. Other courts similarly hold that the ADA itself does not impose any separate compliance obligations for matters covered by the ADAAG. Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 142 F. Supp. 2d 1293, 1298 n.3 (D. Ore. 2001) ("compliance with ADAAG ... is compliance with the ADA itself"), rev'd on other grounds, 339 F.3d 1126 (9th Cif. 2003); Independent Living Resources, 982 F. Supp. at 746-47 ("Congress intended that compliance with the design standards enacted by the Access Board and DOJ . . . would be deemed to satisfy the Title III obligations").
1997) ("In drafting Title III of the ADA, Congress painted with a broad brush and then directed the Attorney General to promulgate regulations to implement the law").
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It is undisputable that the 1991 ADAAG and DOl's regulations do not require headphone jacks. Therefore, Plaintiffs cannot state a claim under the ADA and the Court should dismiss the first three counts in the Complaint.
B. The DOJ's Adoption Of The New 2004 ADAAG Will Be Dispositive And Will Moot This Lawsuit.
While the existing regulations alone dispose of Plaintiffs' claims, the DOJ's forthcoming adoption of the new 2004 ADAAG provides another reason. Whatever regulations the DOJ adopts will be dispositive of Plaintiffs' claims and will moot this lawsuit.
Plaintiffs are seeking a premature and retroactive implementation of the 2004 ADAAG. The proposed 2004 ADAAG would impose the same voice-enabled technologies that the Plaintiffs demand in their lawsuit, but it is not yet the law. 69 Fed. Reg. at 58,770, at Exh. 5 (considering options of making 2004 ADAAG effective in 6, 12, or 18 months). The 2004 ADAAG on their face do not apply to existing ATMs. 2004 ADAAG, § 101.2. at Exh. 4; 69 Fed. Reg. at 58,771, at Exh. 5. The DOJ has exclusive authority to determine whether the 2004 ADAAG should apply retroactively to existing ATMs and thereby require "retrofits." 2004 ADAAG, § 101.2, at Exh. 3; 69 Fed. Reg. at 58,771, at Exh. 5.
To resolve the merits of Plaintiffs' claims that the new headphone-jack requirements should apply to existing ATMs, the Court should defer to the DOl's policy-making authority by dismissing this lawsuit or, at a minimum, staying the lawsuit until the DOJ issues its final regulations. The doctrine of "primary jurisdiction" authorizes the Court to dismiss or stay this lawsuit pending action by the DOJ on a matter within the agency's particular expertise. See, e.g., United States Public Interest Research Group v. Atlantic Salmon of Me., LLC, 339 F.3d 23, 34 (1 s( Cir. 2003) ("In a nutshell, the primary jurisdiction doctrine permits and occasionally requires
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Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 15 of 20
a court to stay its hand while allowing an agency to address issues within its ken"); Association of Int '/ Auto. Mfrs., Inc. v. Commissioner, Mass. Dep '{ of Envir. Prot., 196 F.3d 302, 304 (1 st Cir. 1999) (the primary jurisdiction doctrine "is a prudential doctrine developed by the federal courts to promote accurate decisionmaking and regulatory consistency in areas of agency expertise").
Whatever regulations the DO] adopts will be dispositive of the Plaintiffs' federal claims in this case. If, as Defendants believe, the DO] decides not to apply the new requirements requiring headphone jacks to existing ATMs, Plaintiffs will have no ADA claims at all. If the DO] decides that existing ATMs should comply with the new requirements and be retrofitted with headphone jacks, the DO] will specify which ATMs must be retrofitted or by when these ATMs must be retrofitted. See id. at 58,770-71. Whatever the DO] decides for the industry, Plaintiffs will not be entitled to any different relief from these particular Defendants. The Court should defer to the DOl's policy-making authority in this area and dismiss or, at least, stay this lawsuit pending the DO]' s adoption of final regulations - which, as the recently-published ANPRM demonstrates, is a process that the DO] has already initiated.
This situation squarely falls within the DOl's policy-making authority. The effort to create the 2004 ADAAG was the subject of "extraordinary public participation and review." 69 Fed. Reg. at 58,769. The DO] said that the 2004 ADAAG was "the product often years of effort to modify and update the current [1991] guidelines, reflecting compromise and the cooperative efforts of a host of private and public entities." Jd. The Access Board "received more than 2,500 comments from individuals with disabilities, affected industries, State and local governments, and others," and the Board then "worked vigorously to hannonize the ADA and [ADAAG] with industry standards and model codes." Id. Through this extraordinary effort, the Access Board
- 12 -

Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 16 of 20
and, forthcoming, the DOJ will determine what if any requirements for headphone jacks should apply to existing AIMs. In making this determination, the DOJ "seeks to strike an appropriate balance to ensure that people with disabilities are able to achieve access ... without imposing tumecessary financial burdens on existing places of public accommodation." Id. at 58,771. The Plaintiffs should not be permitted to preempt this "extraordinary" rulemaking proceeding with this single lawsuit. Cf Independent Living Resources, 982 F. Supp. at 746 ("The courts are illequipped to evaluate such claims [not based in agency regulations] and to make what amount to engineering, architectural, and policy determinations as to whether a particular design is feasible and desirablc."); accord National Amusements, 180 F. Supp. 2d at 260-61 (following Independent Living Resources). III. THE PLAINTIFFS ALSO DO NOT HAVE
A VALID ACTION UNDERSTATE LAW. Lacking a valid claim under the ADA, the Plaintiffs therefore lack a claim under state law. Both oftheir claims under the MPAA and MERA are invalid. 5 A. The Massachusetts Public Accommodations Act
Does Not Provide Standards Different Than The ADA. Plaintiffs' failure to state a claim under the ADA precludes their claim under the MPAA, Mass. Gen. Laws ch. 272, § 98, because the MPAA provides identical obligations as the ADA: "It is thus appropriate to look to thc ADA, and decisions interpreting it, for guidance when intcrprcting thc provisions of the Massachusetts Public Accommodation statute." Nathanson v. Commonwealth ofMass., No. 1999-0657,2003 Mass. Super. LEXIS 293, at *15 (Essex Sept. 12, 2003); accord Lesley v. Hee Man Chie, 250 F.3d 47, 58 n.17 (1 st Cir. 2001) ("Interpretation of
Even if Plaintiffs had valid state-law claims, the Court should decline to exercise supplemental jurisdiction over the claims. 28 U.S.C. § 1367(c)(3); Newman v. Burgin, 930 F.2d 955,964 (I st Cir. 1991) ("when a district court dismisses all federal claims before trial, it normally will dismiss pendent state actions as well").
- 13 -

Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 17 of 20
[the MPAA] goes 'hand in hand' with interpretation of the federal disability laws."). Because the ADA (as implemented by federal regulations) does not require headphone jacks, neither does the MPAA.
B. The Massachusetts Equal Rights Act Does Not Provide An Independent Standard For ATMs.
Similarly, Plaintiffs lack any claim under Massachusetts's more general equal-protection statute, the MERA. The MERA is designed to replicate its federal analogue, 42 U.S.C. § 1981. McDonnell v. Certified Eng'g & Testing Co., Inc., 899 F. Supp. 739, 750 (D. Mass. 1995) ("MERA is modeled on 42 U.S.c. §§ 1981 and 1982, which codify the Civil Rights Act of 1866."). In interpreting the scope of the MERA, Massachusetts courts look to Section 1981 and related federal case law. Howard v. Town of Burlington, 506 N.E.2d 102, 105 (Mass. 1987). Claims under Section 1981 are limited to discrimination based on ancestry or ethnicity. Anooya v. Hilton Hotels Corp., 733 F.2d 48, 50 (7th Cir. 1984). Because Congress separately codified rights of the disabled in the ADA, courts squarely reject any effort to extend Section 1981 to the accessibility of public accommodations by the disabled. E.g., Thomas v. Northern Telecom, Inc., 157 F. Supp. 2d 627, 633 (M.D.N.C. 2000) (Section 1981 claim does not extend to discrimination on basis of disability); Tafoya v. Bobroff, 865 F. Supp. 742, 752 (D.N.M. 1994) (same).
Plaintiffs try to plead around this limitation on MERA by invoking Article 114 of the Amendment to the Massachusetts Constitution, which guarantees equal protection regardless of handicap. Complaint ~ 55. But where another statute (here, the MPAA) provides specific rights concerning the Plaintiffs' claims, Article 114 does not provide any independent cause of action. Layne v. Superintendent, Mass. Corr. Instit., 546 N.E.2d 166, 168 (Mass. 1989) ("If a violation
- 14 -

Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 18 of 20
of art. 114 rights can be redressed within the ambit of an existing statute ... there is a well-worn procedural path to relief for such a violation."); Cargill v. Harvard Univ., 804 N.E. 3d 377, 391 (Mass. App. Ct. 2004) (where plaintiff can advance claim under state employment discrimination statute, there is no independent claim lUlder MERA and Article 114). MERA and Article 114 provide a cause of action only where the Massachusetts legislature has failed to adopt a statute directly addressing the subject-matter of the right at issue. Layne, 546 N.E.2d at 169-69. Here, Plail1tiffs assert claims that are governed by another statute the MPAA. The only Massachusetts law that concerns accessibility of ATMs is the MPAA, not MERA or Article 114.
CONCLUSION For these reasons, the Court should grant this motion and dismiss Plaintiffs' claims under the ADA and under state law.
Respectfully submitted, E*TRADE ACCESS, INC., E*TRADE BANK and CARDTRONICS LP By their attorneys,

Dated: November 9, 2004

150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard, Suite 900 McLean, Virginia 22102 (703) 720-7000
- 15 -

Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 19 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

E*TRADE ACCESS, INC.,

)

et al.,

)

)

Defendants.

)

)

Case No. 03 11206 MEL

CERTIFICATE OF SERVICE

I, Jenny Cooper, hereby certify that on November 9, 2004, I caused a copy of the foregoing document to be served, via electronic and first class mail, upon the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 patty.correaCmago.state.rna. us Attorneyfor Plaintiff Commonwealth ofMassachusetts
Anthony M. Doniger, Esquire Christine M. Netski, Esquire Sugamlan, Rogers, Barshak &
Cohen, P.e. 101 Merrimac Street Boston, MA 02114-4737 doniger@srbc.com netski@srbc.com Attorneys for Plaintiffs, National Federation ofthe Blind, Inc., National Federation ofBlind ofMassachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esq. David Vogel, Esq. Arnold & Porter 1600 Tysons Blvd., Suite 1200 McLean, VA 22102 DOHglas Lobel(iiiaporter.com David VogelCtVaporter.com Attorneys for Defendants, E*Trade Access, Inc., and E*Trade Bank

- 16 -

Case 1:03-cv-11206-NMG Document 95 Filed 11/09/04 Page 20 of 20 Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com sliw({Lbrowngold.com Attorneys for Plaintiffs, National Federation ofthe Blind, Inc., National Federation ofBlind ofMassachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver
- 17 -

 
 Case 1:03-cv-11206-NMG Document 81 Filed 09/22/04 Page 1 of 2
ENDORSEMENT
COMMONWEALTH OF MASSACHUSETTS et al. v. E*TRADE ACCESS, INC. 03-CV-11206-MEL
LASKER, D.J.
Defendant moves to require that plaintiffs join third party merchants as necessary parties under Fed. R. Civ. P. 19. For the reasons given below, the motion is DENIED.
Rule 19(a) identifies several grounds to establish whether a non-party to a lawsuit is a necessary party who shall be joined if so doing will not deprive the court of jurisdiction:
(1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may
(i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Under Rule 19 (a) (1), the issue is whether the relief requested is complete "as between the persons already parties, and not as between a party and the absent person whose joinder is sought." Sindia Expedition, Inc. v. Wrecked & Abandoned Vessel, 895 F.2d 116, 121 (3 rd Cir. 1990). Joinder is not necessary where, "although certain forms of relief are unavailable due to a party's absence, meaningful relief can still be provided." Id. The requirement that complete relief be available "does not mean that every type of relief sought must be available, only that meaningful relief be available." Henne v. Wright, 904 F.2d 1208, 1212 n. 4 (8th Cir. 1990). Accordingly, even if the merchants themselves would not be bound by a potential injunction, meaningful relief could still be granted as between the plaintiffs and E*Trade.
Moreover, the merchants' absence from this suit will not necessarily impair or impede their ability to protect their interests under Rule 19 (a) (2) (i). "If an absent party's interests are the same as those of an existing party, and the existing party will adequately protect those interests, this bears on whether the absent party's interest will be impaired by its absence from the litigation." Tell v. Trustees of Delaware ColI., 145 F.3d 417, 419 (1 st Cir. 1998). E*Trade is represented

Case 1:03-cv-11206-NMG Document 81 Filed 09/22/04 Page 2 of 2

by an able law firm that is capable of pursuing all procedural and substantive grounds for its client. E*Trade's interests will necessarily lead it to make the arguments that would also be offered on behalf of the merchants. The interests of E*Trade and the merchants do not diverge to the extent that in defending itself E*Trade will not adequately defend the merchants as well.
Nor will the merchants' absence leave E*Trade with a substantial risk of incurring multiple or inconsistent obligations under Rule 19 (a) (2) (ii). This rule concerns only inconsistent obligations, not inconsistent adjudications. Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1 st Cir. 1998). It does not appear that E*Trade will be unable to comply with one court order regarding the ATM machines without breaching another court order concerning the same issue.
For the preceding reasons, I conclude that it is at least premature, at this time, to require joinder of the approximately 11,000 third party merchants as necessary parties. Concerns of judicial efficiency and economy weigh against such a massive and unwieldy arrangement. However, E*Trade raises issues that are not capricious. If in the development of this case it appears necessary to review the decision, such a possibility exists.
Accordingly, the motion is DENIED.
It is so ordered.

Dated:

September 22, 2004 Boston, Massachusetts

lsi Morris E. Lasker
U.S.D.J.

 
 Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS·
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COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Plaintiffs
v.
E*TRADE ACCESS, INC., ET AL., Defendants

CIVIL ACTION NO. 03-1 1206-MEL

PLAINTIFFS' OPPOSITION TO DEFENDANTS RULE 12(c) MOTION FOR JUDGMENT ON THE PLEADINGS INTRODUCTION
Defendants have moved for dispositive relief under Fed. R. Civ. P. 12(c) arguing that the relief Plaintiffs seek in their Second Amended Complaint, which they describe as an injunction requiring that Defendants retrofit their ATMs with voice-activated technology for use by the blind, has been "expressly rejected" under applicable law.
Defendants mischaracterize Plaintiffs' Second Amended Complaint, which seeks broad equitable relief arising from the Defendants' failure to make their ATMs accessible to and independently useable by blind customers. As Plaintiffs allege in the Second Amended Complaint, the vast majority of blind individuals do not read Braille, making voice-activated technology the most effective current means for satisfying Defendants' legal obligation. However, Plaintiffs' reference in their factual allegations to a preferred means of providing access affects neither the legal sufficiency of their claim that

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 2 of 12 2
Defendants' ATMs fail to comply with the law, nor the legal sufficiency of their broadlyworded prayer for relief.
Defendants also mischaracterize existing law when they suggest that voiceactivated technology has been rejected as a method for complying with the accessibility and independent use mandate. This contention is based on an elluneous inference Defendants draw from the mere fact that the Department of Justice (DOJ) decided against mandating any specific approach to access -- it did not regulate a voice-activation requirement any more than it regulated a Braille requirement - in favor of a flexible formulation that simply requires that owners and operators make their ATMs accessible to and independently useable by the blind.
Defendants cannot escape the fact that they were required to have employed a method to achieve compliance with the law. Defendants are still faced with, and have failed to respond to, Plaintiffs' allegations in the Second Amended Complaint that the ATMs at issue aJre not accessible to and independently usable by the blind and so violate existing law. Tellingly, the Defendants have not even asserted in the Motion before the Court that the ATMs at issue afford blind people access and independent use in compliance with existing law, undoubtedly because they are unable to support such a contention with any affirmative evidence.
Particularly given that the Court must accept Plaintiffs' allegations as true for purposes of this motion, the Court must reject the premise of Defendants' motion and, accordingly, should deny their motion.

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 3 of 12 3
ARGUMENT For purposes of this motion for judgment on the pleadings, the Court must accept Plaintiffs' allegations as true. See generally 5C Charles A. Wright & Arthur P. Miller, Federal Practice and Procedure, § 1368 (2004) ("[F]or purposes of the Court's consideration orthe Rule 12(c) motion, all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false."). See also Rivera-Gomez v. de Castro, 843 F.2d 631, 634 (lSI Cir. 1988) ("[B]ecause rendition ofjudgment in such an abrupt fashion represents an extremely early assessment of the merits of the case, the trial court must accept all of the nonmovant's well-pleaded factual averments as true ... and draw all reasonable inferences in his favor. "). In addition, a court may not enter judgment on the pleadings under Rule 12(c) "unless it appears beyond a doubt that the nonmoving party can prove no set of facts in support of [its] claim which would entitle it to relief." Feliciano v. Rhode Island, 160 F.3d 780, 788 (1 sl Cir. 1998). Not surprisingly, courts proceed cautiously under Rule 12(c), in recognition of the strong policy in favor of "ensuring to each litigant a full and fair hearing on the merits of his or her claims or defense." 5C Charles A. Wright and Arthur P. Miller, Federal Practice and Procedure, at § 1368. As demonstrated below, there is no basis whatsoever for denying Plaintiffs the opportunity to present their claims on the merits.

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 4 of 12 4
I. Plaintiffs' Allegations and Prayer for Relief Are Entirely Consistent With Existing Federal Law, and Anticipated Changes to the ADAAG Are Irrelev3lnt.
A. Defendants' Mischaracterize Plaintiffs' Allegations.
Contrary to Defendants' assertion, the allegations of Plainti ffs' Second Amended
Complaint are not focused exclusively on voice guidance technology, but, instead, are
crafted in a manner that is consistent with the flexible, performance-based standard for
ATMs set forth in the existing Americans with Disabilities Act Architectural Guidelines
(ADAAG), 28 U.S.c. App. A., § 4.34.5, that "[iJnstructions and all information for use
shall be made accessible and independently usable for persons with visual impairments."
Plaintiffs allege repeatedly that blind individuals are unable to "independently use"
E*TRADE ATMs (Second Amended Complaint, ",,5-10,27) and, indeed, explain in some detail why this is true:
E*Trade deprives blind people of the opportunity 10 independently engage in financial transactions on the same temlS as sighted people. E*Trade-operated ATMs are inaccessible because they use computer screen text prompts that are undetectable to blind people to guide customers through banking transactions. These computer screen text prompts are not translated into a medium accessible to the blind, such as audio output. (Second Amend(~d Complaint, ~ 22) (emphasis supplied).
While, as the Defendants point out, DO] has stated that "Braille and large print
instructions ... , when used in conjunction with tactically marked keys or other means of
identification, do serve as one source of accommodation for persons with vision
impairments," 56 Fed. Reg. 35,444 (1991), Plaintiffs allege that although some
E*TRADE-branded ATMs have Braille keypads and labels, this Braille text does not
provide "sequential computer screen instructions or any information about the contents of

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 5 of 12 5
any given screen," and, therefore, blind individuals are "unable to independently use E*Trade-operated ATMs." (Second Amended Complaint, '127.) Defendants have not put before the Court any evidence that the ATMs at issue supply the required sequential screen instructions and other information about the contents of any given screen, or any other "instructions and information for use" required by ADAAG § 4.34.5, in a Braille and/or large print format, or any other accessible format, as contemplated by DOl's statement. l Plaintiffs have clearly stated a claim that Defendants failed to comply with existing law by making their ATMs accessible to and independently usable by blind people, whether through use of Braille, voice technology or any other method.
Moreover, Plaintiffs' prayer for relief in their Second Amended Complaint makes no mention of "talking ATMs" and, instead, seeks injunctive relief consistent with the performance-based standard articulated in Section 4.34.5. Specifically, Plaintiffs request that the Court
enjoin each of the Defendants from continuing to violate the ADA and Massachusetts law and order all Defendants immediately to make the necessary modifications to the ATMs they operate or operate and lease, so that blind people may have access to and independently use these ATMs[.] (Second Amended Complaint, p. 14, '1f (cl) (emphasis supplied). Plaintiffs do allege that the most effective currently available method for achieving accessibility and independent use is to equip ATMs with voice guidance
technology (Second Amended Complaint, '1 28), although their prayer for relief leaves
open the possibility that some other options might exist that satisfy the legal mandate.
I 001 also observed that one ATM manufacturer supplied "training kits for bank customers with vision impairments that include a Braille workbook on how to use the machine." 56 Fed. Reg. 35,441. There is no evidence that Defendants' took such steps, or any other adequate steps, to afford blind customers access to and independent use of their ATMs.

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 6 of 12 6
Plaintiffs make this allegation regarding the efficacy of voice activation because out of an estimated 1.1 million blind persons nationwide, only 15% percent are Braille literate. (Second Amended Complaint, 'I'lll, 27(a)). Therefore, an approach that depends on Braille exclusively for fulfilling the accessibility and independent use requirement is likely inadequate under the law, especially in light of advances in voice guidance
technology, as alleged by Plaintiffs. (Second Amended Complaint, '1 29). The mere fact
that Plaintiffs have raised the possibility of voice guidance technology as a remedy for their claim that Defendants' ATMs are not in compliance with existing law is irrelevant for purposes of evaluating the sufficiency of Plaintiffs' pleadings.
B. Defendants Misconstrue the Applicable Law. Defendants assert that DO] specifically rejected voice-activated technology as a method for complying with the accessibility and independent use mandate. Their contention is insupportable. In fact, DOJ received 50 suggestions on making ATMs accessible to the blind, among them, "talking" ATMs, the installation of a handset voice output telephone device, use of large print and Braille, and use of cassette instructions. 56 Fed. Reg. 35,441. Far from rejecting any of these suggestions. DO] decided, "[i]n light of the evolving technology in this area and to allow flexibility in design," to state "the requirement for accessibility ... in general performance terms." Id. DOJ did not reject "talking" ATMs any more than it required exclusively Braille and large print instructions. Thus, Plaintiffs' position that voice guidance is the most effective accessibility option that is now available -- 13 years after the regulation was promulgated -- is entirely consistent with existing federal law. More importantly, however, even if Defendants are

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 7 of 12
7
correct that voice guidance is not the only means by which accessibility may be achieved,
this does not alter Plaintiffs' contention -- which Defendants apparently cannot deny --
that E*TRADE··branded ATMs are not accessible to and independently usable by blind
individuals within the meaning of the existing regulation. 2
C. The 2004 ADAAG Rulemaking Process Will Not Affect Plaintiffs' Claims.
So, too, Defendants' reliance on the not-yet-implemented 2004 ADAAG is
entirely misplaced. Defendants suggest that the 2004 ADAAG rulemaking process can
somehow undo or dismantle Defendants' obligations under current law. Even if, as
Defendants contend, DO] were to establish a "safe harbor" for entities that are in
compliance with existing regulations, the E*TRADE-branded ATMs at issue in this
action simply would not be eligible. As DOl explains:
This safe harbor option would, of course, have no effect on noncompliant elements. To the extent that elements in existing facilities are not already in compliance with scoping and technical re:quirements in the current ADA standards, existing public accommodations would be required to remove baniers ... to make elements comply with the revised standards.
69 Fed. Reg. 58,771 (2004). Because, as alleged in Plaintiffs' Second Amended
Complaint, Defendants have not attempted to make their ATMs accessible under existing
federal standards, they will be in no position to take advantage of any safe harbor
provision that DO] may ultimately promulgate. Therefore, whether or not the 2004
2 Defendants quote Association For Disabled Americans. Inc. v. Amoco Oil Co., 211 F.R.D. 457, 475 (S.D. Fla. 2002), as stating, "[T]alking ATMs are not even required by the ADA accessibility guidelines." The court, in this case, made this bald statement in the context of a discussion of standing, without relating it to any allegations or claims in that case and without citing any authority for its statement. In any event, the statement is irrelevant to the Court's determination here in light of the fact that Plaintiffs allege that Defendants' ATMs are, broadly speaking, inaccessible to and not independently useable by blind people in satisfaction of existing laws' requirements, and in light of Plaintiffs' general demand for an order that the Defendants make them so.

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 8 of 12 8
ADAAG ultimately becomes a final DOJ regulation and whether, ifit does, it includes some type of safe harbor provision is entirely irrelevant to the issues in this case. II. Plaintiffs Have Stated Valid Claims Under Massachusetts Law.
To the extent that Plaintiffs' claim under the Massachusetts Public Accommodation Act (MPAA), Mass. Gen. Laws ch. 272, § 98, is to be interpreted in a manner consistent with federal disability law, this Court should clearly permit Plaintiffs to proceed with this claim for all of the reasons discussed above.
In addition, there is no basis for Defendants' tortured argument that MPAA is Plaintiffs' exclusive vehicle for relief under Massachusetts law. Defendants argue that the Massachusetts Equal Rights Act (MERA), Mass. Gen. Laws ch. 93, § 103, is analogous to 42 U.S.c. § 1981,3 and so because, they say, the ADA preempts Section 1981 claims, then the MPAA preempts claims under MERA. Defendants make this argument, even as they acknowledge that Section 1981 claims are limited to discrimination based on ancestry or ethnicity, by entirely ignoring the broader language in MERA specifically affording people with disabilities the right to the "full and equal benefit of all laws ... , including, but not limited to, the rights secured under Article [114] of the Amendments to the [Massachusetts] Constitution." Mass. Gen. Laws ch. 93, § I03(a). 4 It is this language that forms the basis for Plaintiffs' MERA claim. (Second Amended Complaint, '11'11 52-55). There is no question that MERA is the appropriate
3 MERA includes language affording people with disabilities an equal right to "make and enforce contracts," id., language similar to that of 42 U.S.c. § 1981. That is not the language on which Plaintiffs' MERA claim is based, as they explain. 4 Article 114 was modeled almost verbatim on Section 504 of the Rehabilitation Act of 1973,29 U.S.c. § 794(a), not on the federal Civil RIghts Act, 42 U.S.c. § 1981. Layne. 546 N.E.2d at 168 & n.4 (Article 114 modeled on Section 504): Shedlock v. Dept. of Correction, Civ. Action No. 98-3631-F [2002 WL 31356205J (Mass. Super. Oct. 3, 2002) (interpreting Article 114 consistently with Section 504, given it served as model).

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 9 of 12
')
procedural vehicle for bringing Article 114 claims. See Greaney v. Heritage Hasp .. Inc., Civ. Action No. 952547 [1995 WL 1146185 at **7] (Mass. Super. Dec. 28,1995).
Defendants also attempt to rely on language in Layne v. Superintendent, Mass. Carr. Inst., 546 N,E.2d 166, 168 (Mass. 1989), a decision that predates MERA,5 to support their MPAA preemption argument In Layne, the plainti ffbrought an action directly under Article 114. The court observed that there was no statute generally implementing Article 114 (at the time), but had there been, that statute would have been the proper procedural path to relief for a violation of Article 114. 546 N.E.2d at 168. Subsequently, the Massachusetts legislature adopted MERA as the procedural vehicle for Article 114 violations. The Plaintiffs, by suing under MERA, have taken precisely the procedural path the court suggested in Layne.
Finally, Defendants cite Cargill v. Harvard Univ., 804 N.E.3d 377, 391 (Mass. App. Ct 2004), a case in which the plaintiff brought an employment discrimination claim under Chapter I:SIB and a claim identical in scope under MERA!Article 114. The court reiterated the well-established proposition that Chapter 151B is the exclusive procedural device for bringing a state law employment discrimination claim. Id. at 391.
Unlike the identical claims that were at issue in Cargill, and as this Court has already observedl in denying E*TRADE Bank's motion to dismiss brought on the ground that it does not operate places of public accommodation, Plaintiff,' MPAA claim "goes 'hand in hand'" with their ADA claims, while "MERA is considerably broader in its scope than the ADA." Memorandum and Order dated March 29,2004 (Lasker, J.) at 1213; see also Guckenberger v. Boston University, 957 F. Supp. 306, 324 (D. Mass. 1997) ("[T]he amendment appears to sweep broadly, securing the right of handicapped persons
5 MERA was promulgated in 1990. See St. 1990. c. 156.

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 10 of 12
10
against discrimination ... perpetrated by any private person or entity."); Haskins v. President and Fellows ofHarvard College, Civ. Action No. 993405 [2001 WL 1470314] (Mass. Super. Sept. 18,2001) (recognizing that Article 114's "broad language" applies to "any program or activity within the commonwealth") (emphasis in original); Greaney, 1995 WL 1146185 at **6 (legislature's inclusion of broad specifIcation that "program or activity be merely 'within the Commonwealth' suggests a deliberate choice to expand the reach of Article 114 to private conduct ...."). Plaintiffs' MERAIArticle 114 claim alleges discrimination by the Defendants in their "programs and activities;,,6 Plaintiffs' MPAA claim alleges public accommodation discrimination by the Defendants. 7 Because Plaintiffs' MERA claim may capture discriminatory activities by the Defendants not captured by their MPAA claim, the Court should deny Defendants' motion for judgment on the pleadings as to this claim. See, e.g., Greaney, 1995 WL 1146185 at **3 (allowing plaintiff to proceed on both Chapter 151B and MERA counts pending determination of whether, as a factual matter, Chapter 151 B applied to him).
CONCLUSION For these reasons, Plaintiffs ask this Court to deny Defendants' motion.
6 Article 114 states: "No otherwise qualified handicapped individual shall, solely by reason of his
handicap, be excluded from the p31iicipation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth." 7 Both Defendants assert as an affirmative defense that the A TMs at issue are not places of public accommodation. See Answer and Affirmative Defenses ofE*TRADE Access, Inc. at 6 (Second Affirmative Defense); Answer and Affirmative Defenses ofE'TRADE Bank to Plaintiffs' Second Amended Complaint at 6 (Second Affirmative Defense).

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 11 of 12
II

COMMONWEALTH OF MASSACHUSETTS
By its Attorneys,

'1--:i{~{~'L,1{.

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,','11.;<'&""",

Patricia Correa, BBO # 560437

Assistant Attorn ey General

Director, Disability Rights Project

Office of the Attorney General

One Ashburton Place

Boston, MA 02108

(617) 727-2200, ext. 2919

Dated: November 23,2004

NFB, NFB-MASSACHUSETT AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,
~ ."--" /'
J~/,i/. /[{ ' I t[>, )}'. / ' , c:=
Anthony Doniger, B00l29i20 Christine M. Netski, BBO #546936 Sugarman, Rogers, Barshak & Cohen 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

(j), It ,,/cdll'/J4.ll II Ir Mfl)

Daniel F. Goldstein

'

Sharon Krevor-Weisbaum

Brown, Goldstein & Levy, LLP

120 E. Baltimore Street, Suite 1700

Baltimore, MD 21202

(410) 962-1030

Case 1:03-cv-11206-NMG Document 97 Filed 11/23/04 Page 12 of 12 12

CERTIFICATE OF SERVICE

I, Christine M. Netski, hereby certify that on November 23,2004, I served the within document via e-mail and first-class mail, postage prepaid on the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 patty.correa@ago.state.ma.us Attorney for Plaintiff, Commonwealth of Massachusetts
Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@browngold.com Attorneys for Pllaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes, Esquire Rachael Splaine Rollins, Esquire Jenny K. Cooper, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe.koc:iubes@bingham.com rachael.rollins@bingham.com jenny.cooper@bingham.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank
Douglas P. Lobel, Esquire David A. Vogel, Esquire John F. Henault, Jr., Esquire Arnold & Porter 1600 Tysons Boulevard, Suite 900 McLean, VA 22102 douglas _Iobel@aporter.com david.vogel@aporter.com john henault@aporter.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank

356669

 
 Case 1:03-cv-11206-NMG Document 111 Filed 02/07/05 Page 1 of 3

on .f--I'1._CL l)

"., ;':.,'~, ;,.C.. f\ dI \,';

ICE

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSE'itlfSF ell -1 p 12: 32

....................
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Plaintiffs
v.
E*TRADE ACCESS, INC., ET AL., Defendants

CIVIL ACTION NO.03-11206-MEL

PLAINTIFFS' SUPPLEMENTAL MEMORANDUM IN SUPPORT OF THEIR MOTION FOR JUDGMENT ON THE PLEADINGS
Defendants continue to insist that they have complied with the requirement that ATMs be independently usable by the blind, I because, they claim, the Access Board determined that "ATMs could comply with the ADA by having Braille ... instructions" that could be "used in conjunction with tactually marked keys ..." Def. Mem. at 4. Defendants return to this point in their Reply Memorandum. Def Rep. Mern at pp.4-5.
However, even if it is possible to make an ATM independently usable to a blind person by placing on the ATM Braille instructions to be used in conjunction with tactually marked keys, Defendants have not done so. Attached are Declarations of blind persons who have tested E*TRADE Financial-branded ATMs. None of the ATMs located by those blind persons had one word of Braille instruction. Ex. I, Tabs A-E. Some even lacked Braille on the keys. Moreover, nothing in the pleadings forms the basis for an assertion that Defendants' ATMs have Braille instructions.
I 1991 ADAAGPart 4.34.4 at Defendant's Exh. 1; 28 C.F.R. Pt. 36 App. A §4.34.5 at Exh. 2.

Case 1:03-cv-11206-NMG Document 111 Filed 02/07/05 Page 2 of 3 2
Defendants continue to confuse the question ofliability with the question of remedy. As established by the attached Declarations, Defendants' ATMs are not independently usable by blind persons. Thus, it is clear that Defendants have violated the ADA (or, given the context of a motion for judgment on the pleadings, Defendants cannot establish that they have not violated the ADA). However, as a matter of remedy, if Defendants can devise an ATM that would have instructions in Braille and large print that would be independently usable by the blind, then they may be able to convince the Court that this remedy would more satisfy the requirements of the ADA. Given that modem ATMs have between 100 and 200 screens, that attempt may prove quixotic. That question, however, is for another day.

COMMONWEALTH OF MASSACHUSETTS, By its Attorneys,

I)-I ·.a (-

F

dA.Ai/e< a (

i
tCl.>U 4 / OJ Il/

Patricia Correa, BBO No?560437

Assistant Attorney General

Director, Disability Rights Project

Office of the Attorney General

One Ashburton Place

Boston, MA 02108

(6\7) 727-2200, ext. 2919

Dated: February 7, 2005

NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,
u«J~C!!llZ /
Anthony Doniger, BBO No. 129420 Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak &
Cohen, P.c. 101 Merrimac Street Boston, MA 02114-4737 (6\7) 227-3030

~J):d~/cM'o)

Daniel F. Go-"ldstein

I

Sharon Krevor-Weisbaum

Brown, Goldstein & Levy, LLP

120 E. Baltimore Street, Suite 1700

Baltimore, MD 21202

(410) 962-1030

Case 1:03-cv-11206-NMG Document 111 Filed 02/07/05 Page 3 of 3 3

CERTIFICATE OF SERVICE

I, Christine M. Netski, hereby certify that on the above date I served the within document via electronic mail and first-class mail postage prepaid on the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 patty.correa@ago.state.ma.us Attorney for Plaintiff, Commonwealth of Massachusetts
Daniel F. Goldstein, Esquire Sharon KreVor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@browngold.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes, Esquire Rachel Splaine Rollins, Esquire Jenny K. Cooper, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe.kociubes@bingham.com rachel.rollins@bingham.com jenny.cooper@bingham.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank
Douglas P. Lobel, Esquire David A. Vogel, Esquire John F. Henault, Jr., Esquire Arnold & Porter 1600 Tysons Boulevard Suite 900 McLean, VA 22102 douglas_Iobel@aporter.com david_vogel@aporter.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank

l/:/:) i00~ l~~ Christine M. Netski

359233

 
 Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 1 of 16

"
UNITED STATES DISTRICT COURT

~' i r ;_

FOR THE DISTRICT OF MASSACHUSETTS'

I,.
,'"J

COMMONWEALTH OF MASSACHUSETTS, )

NATIONAL FEDERATION OF THE BLIND,

)

. - , ~

INC., NATIONAL FEDERATION OF THE

)

BLIND OF MASSACHUSETTS, INC.,

)

ADRIENNE ASCH, JENNIFER BOSE,

)

THERESA JERALD! AND PHILIP OLIVER, )

CIVIL ACTION NO. 03 11206-MEL

)

Plaintiffs

)

)

v.

)

)

E*TRADE ACCESS, INC.,

)

E*TRADE BANK, CARDTRONICS, LP,

)

and CARDTRONICS, INC.

)

)

Defendants

)

THIRD AMENDED COMPLAINT

NATURE OF THE CASE

I.

Plaintiff Commonwealth of Massachusetts, by and through its Attorney General,

Thomas Reilly, and Plaintiffs, the National Federation of the Blind, Inc. and the National

Federation of the Blind of Massachusetts, Inc. (collectively "Organizational Plaintiffs"), and

Adrienne Asch, Jennifer Bose, Theresa Jeraldi and Philip Oliver, individuals who are legally blind

(collectively "Individual Plaintiffs"), by their undersigned counsel, bring this complaint against the

Defendants E*TRADE Access, Inc., E*TRADE Bank, Cardtronics, LP, and Cardtronics, Inc.,

individually and jointly, for (I) E*TRADE Bank's failure to offer E*TRADE banking services, the

services of a public accommodation, through ATMs that are accessible to blind people; (2) the

Defendants' ownership, operation, control and/or leasing of inaccessible ATMs that are public

accommodations, that offer the services of a public accommodation, and that are located in places

of public accommodaltion, in violation of Title III of the Americans with Disabilities Act

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 2 of 16
("ADA"), 42 U.S.C. §§ 12182 and 12183 and the regulations promulgated thereunder, 28 C.F.R. Part 36.101 el seq, the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, §§ 92A and 98. and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103.
Plaintiffs see:k injunctive relief requiring Defendants to make accessible the existing and newly installed ATMs through which E*TRADE Bank offers banking services. and/or those ATMs that Defendants own, operate, control and/or lease. so that banking services that are available to a sighted user of these ATMs are similarly independently available to blind people, of whom there are approximately 1.1 million nationwide, including approximately 35,000 in Massachusetts. Plaintiffs also seek compensatory and punitive damages as a result of Defendants' knowing. intentional and deliberate disregard of the law.
JURISDICTION AND VENUE 2. This action is authorized by 28 U.S.C. §§ 2201-02 and 42 U.S.c. § 12188. This Court has jurisdiction over this action pursuant to 28 U.S.c. §§ 1331 and 1367, since each Defendant transacts business in the Commonwealth, maintains facilities in the Commonwealth and the claims against each Defendant arise out of the transaction of business in Massachusetts. The Court also has supplemental jurisdiction over the state law claims at issue pursuant to 28 U.S.c. § 1367. 3. Venue is proper in this District pursuant to 28 U.S.c. § 1391(b), since each Defendant. as a corporation, is subject to personal jurisdiction in this District because a substantial part of the events giving rise to this action occurred and continue to occur in this District.
2

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 3 of 16
PARTIES 4. The Commonwealth of Massachusetts, represented by the Attorney General, brings this action in the public interest. The Attorney General's principal office is located at One Ashburton Place, Boston, Massachusetts. The Attorney General is authorized to bring this action on behalf of the Commonwealth pursuant to Mass. Gen. Laws. ch. 151 B, § 5, in addition to other statutory and common law authority to bring legal actions in the public interest. See, e.g., Mass. Gen. Laws ch. 12, § 10.
5. The National Federation of the Blind CNFB" or "'Federation"), the leading national organization of blind persons, is a non-profit corporation duly organized under the laws of the District of Columbia with its principal place of business in Baltimore, Maryland. It has atliliates in all 50 states, Washington, DC and Puerto Rico. The vast majority of the Federation's approximately 50,000 members are blind persons and therefore members of the protected class of disabled persons under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the AIDA contained in 28 C.F.R. §§ 36.101, e/ seq, the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. The Federation is widely recognized by the public, Congress, executive agencies of government and the courts as a collective and re:presentative voice on behalf of blind Americans and their families. The purpose of the NFB is to promote the general welfare of the blind by (1) assisting the blind in their efforts to integrate themselves into society on terms of equality and (2) removing barriers and changing social aUitudes, stereotypes and mistaken beliefs sighted and blind persons hold concerning the limitations created by blindness that result in the denial of opportunity to blind persons in virtually every sphere of life. The NFB and many of its members have long been actively involved in promoting adaptive technology for
3

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 4 of 16
the blind, so that blind persons can live and work independently in today's technology-dependent world. NFB memb<~rs reside throughout the United States, including the Commonwealth of Massachusetts, and many of its members would use the ATMs and the services offered by Defendants if they were made independently usable by the blind.
6. The National Federation of the Blind of Massachusetts, Inc. C'NFB-Massachusetts"), an atliliate of the NFB, is a non-profit corporation duly organized under the laws of the Commonwealth of Massachusetts, with its administrative of1ice locatcd in Somerset, Massachusetts. NFB-Massachusetts currently has eight local chapters and approximately three hundred members. All members ofNFB-Massachusetts are also members ofNFB. NFB-Massachusetts members reside and work throughout the Commonwealth and many members would use the ATMs offered by Defendants if they were made independently usable by the blind.
7. Adrienne Asch, a blind resident of Cambridge, Massachusctts, is a member of a protected class under the ADA, 42 U.S.c. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, el seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Ms. Asch is a professor of Bioethics at Wellesley College. She would like to use the ATMs offered by Defendams if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank's services were independently usable by the blind.
8. Jennifer Bose, a blind resident of Brookline, Massachusetts, is a member ora protected class under the ADA, 42 U.S.c. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, el seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93.
4

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 5 of 16
§ 103. Ms. Bose is a researcher at the Institute for Community Inclusion in Boston, Massachusetts. Ms. Bose would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank's servicl~s were independently usable by the blind.
9. 'lberesa Jeraldi, a blind resident of Watertown, Massachusetts, is a member of a protected class under the ADA, 42 U.S.c. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Ms. Jeraldi is a retired employee of the Office of Civil Rights of the United States Department of Education. She would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank's services were independently usable by the blind.
10. Philip Oliver, a blind resident of Leominster, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F .B',. § § 36.101. et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Mr. Oliver is employed by the Massachusetts Commission for the Blind and would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank's services were independently usable by the blind.
5

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 6 of 16
II. E*TRADE Access, Inc. ("E*TRADE Access"), an Oregon corporation with its principal place of business in Arlington, Virginia, is a subsidiary ofE*TRADE Bank. Prior to June 2, 2004, E*TRADE Access owned, operated, controlled and/or leased ATMs under the E*TRADE name.
12. E*TRADE Bank, a federally chartered savings bank with its principal place of business in Arlington, Virginia, is a wholly-owned subsidiary of E*TRADE Financial Corporation. E*TRADE Bank is a public accommodation pursuant to 42 U.S.C. § 12181 (7)(f) that otTers banking services under the E*TRADE name, including the withdrawal of funds. the making of deposits, and the verification of deposits, at over 15,000 ATMs across the United States, including more than 600 in Massachusetts.
13. Cardtronics, LP is a limited partnership organized under the laws of Delaware with a principal place of business at 3000 Hayes Road, Suite 101, Houston, Texas.
14. Cardtronics, Inc. is a corporation organized under the laws of Delaware with a principal place of business at 3000 Hayes Road, Suite 300, Houston, Texas.
15. Prior to June 2, 2004, Cardtronics, LP and Cardtronics, Inc. ("Cardtronics") owned, operated, controlled and/or leased more than 12,000 ATMs nationwide.
16. On or about June 2, 2004, Cardtronics, LP acquired the AIM business or E*TRADE Access, Inc. The acquisition included approximately 13,200 active ATMs, increasing the ATM network owned, operated, controlled and/or leased by Cardtronics to over 25,000 ATMs nationwide and making Cardtronics the nation's largest independent owner/operator of ATMs.
6

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 7 of 16
FACTS 17. Prior to June 2, 2004, E*TRADE Access held legal title to only a kw thousand of the more than 15,000 ATMs it operated within its network (approximately 17 in Massachusetts). After demand and as a result of negotiation, E*TRADE Access agre<:d to make these ATMs accessible to the blind. 18. Prior to June 2, 2004, E*TRADE Access operated ancl controlled the balance of ATMs in its fleet at the site of various retail merchants, pursuant to a variety of contractual arrangements with the merchants. On information and belief, E*TRADE Access leased back from merchants some of the ATMs it operated and controlled, including some of the ATMs it operated and controlled within Massachusetts. As of June 2, 2004, E*TRADE Access had not made these ArMs accessible to the blind. As a result of the June 2, 2004, acquisition of E*TRADE Access's ATM business by Cardtronics, Cardtronics now operates, controls and/or leases all of these ATMs, upon information and belief, under the E*TRADE name ("E*TRADE ATMs"). 19. In addition to the E*TRADE ATMs, Cardtronics continues to own, operate, control and/or lease more than 12,000 AlMs nationwide. ("Cardtronics ATMs"). 20. At all times relevant to this action, E*TRADE Bank has offered its banking services, including fee-free transactions to E*TRADE Bank account holders, through E*TRADE ATMs. 21. Each E*TRADE ATM (a) displays the E*TRADE logo, and (b) otTers fee-free transactions to E*TRADE Bank account holders. In addition, E*TRADE Bank represents on its website that it operates the second largest network of ATMs in the United States.
7

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 8 of 16
22. E*TRADE Bank, each E*TRADE ATM, each Cardtronics ATM, each of the locations in which those ATMs are found, and the network of E*TRADE and Cardtronics ATMs are all public accommodations as defined by Title III of the ADA, 42 U.S.c. § 12181(7), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., and the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 92A.
23. The banking services offered through E*TRADE and Cardtronics ATMs in Massachusetts constitute a program or activity under Article 114 of the Amendments to the Massachusetts Constitution, Mass. Const. amend. CXIV, and the services and facilities ofa public accommodation under 42 U.S.c. § 12181.
24. E*TRADE and Cardtronics ATMs are inaccessible because they use computer screen text prompts that are undetectable to blind people to guide customers through banking transactions. These computer screen text prompts are not translated into a medium accessible to the blind, such as audio output.
25. Currently, if a blind person enters the wrong personal identification number ("PIN") into an E*TRADE or Cardtronics ATM, the AIM may retain his or her card. Also, a blind person who presses an incorrect function kcy on an E*TRADE or Cardtronics ATM has no way of knowing that he or she has made a mistake in the transaction.
26. As a result of this inaccessibility, the Individual Plaintiffs and members of the Organizational Plaintiffs, unlike persons without visual impairments, are not able to independently use E*TRADE or Cardtronics ArMs.
27. E*TRADE and Cardtronics ATMs threaten blind people with loss of their private information. Blind pc:ople who wish to use an E*TRADE or Cardtronics ATM have no choice but to repeatedly reveal their private PINs to others to complete an ATM banking transaction.
8

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 9 of 16
28. As a result, unlike persons who are not blind, the Individual Plaintiffs and members of the Organizational Plaintiffs who wish to use an E*TRADE or Cardtronics ATM are not able to maintain the security of their private PINS.
29. Although some E*TRADE and Cardtronics ATMs have Braille keypads and labels, this feature is not an effective accommodation under the ADA
a. Not all persons who are blind read Braille. In tact, current national figures estimate a Braille literacy rate of only 15% among persons who are blind; and
b. Braille keypads and labels are static and do not provide sequential computer screen instructions or any information about the contents of any given screen.
30. The only effective means to make E*TRADE and Cardtronics ATMs accessible to blind people is through voice guidance technology. Voice guidance technology allows a blind person to plug a personal headphone into a universal audio jack and hear the step-by-step instructions as they appear on the ATM screen. Voice guidance technology orients a blind person to the features of an ATM, the operational options of the machine, and the details for each function of the machine. Voice guidance technology also provides a veritication mechanism through which a blind person may confirm that a number he or she has entered on the keypad is the number he or she intended to enter, or that the transaction chosen was the intended transaction.
3 J. Voice guided technology has been widely used in a variety of other contexts for decades and has been readily available for application to ATMs. It has long been affordable and available as an option with the purchase of new ATMs or as an upgradt, for existing ATMs, and competitors of the Defendants have offered voice guidance technology at ATMs they own, operate, and/or lease. Moreover, prior to the acquisition of June 2,2004, E*TRADE Access was in the process of impkmenting voice guidance technology for the ATMs it owned.
9

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 10 of 16
32. Without injunctive relief, Individual Plaintiffs and members of the Organizational Plaintiffs will continue to be unable to independently use E*TRADE and Cardtronics ATMs in violation of their rights under the ADA, the Massachusetts Public Accommodations Act, and the Massachusetts Equal Rights Act.
COUNT I (Violation of the ADA's Full and Equal Enjoyment of Services Mandate) 33. The allegations contained in the previous paragraphs are incorporated by reference. 34. Plaintiffs Adrienne Asch, Jennifer Bose, Theresa Jeraldi and Philip Nathaniel Oliver and Organizational Plaintiffs' members are legally blind and recognized as a protected class under the ADA, 42 U.S.C. § 12102(2), and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, el seq. 35. E*TRADE Bank is a public accommodation, and each Defendant owns, operates, controls and/or leases a place ofpubJic accommodation as defined by Titlc III of the ADA, 42 U.S.c. § 12181(7)(F). 36. Each Defendant, in violation 01'42 U.S.c. § 12182(a), has failed to make its ATM banking services fully accessible and independently usable by individuals who are blind.
COUNT II (Violation of ADA's Reasonable Modification Mandate) 37. The allegations contained in the previous paragraphs are incorporated by reference. 38. Each Defendant, in violation of42 U.S.C. § 121 82(b)(2)(A)(ii), has failed to make reasonable modifications (by tailing to modify policies, practices and procedures) necessary to
10

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 11 of 16
make its ATM banking services fully accessible and independently usable by individuals who are blind.
39. Modifying its policies, practices and procedures to afford blind persons full accessibility and independent use of ATMs would not fundamentally alter the nature of Defendants' banking services.
COUNT III (Violation of the ADA's Auxiliary Aids and Services Mandate) 40. The allegations contained in the previous paragraphs are incorporated by reference. 41. Def"ndants, in violation of the auxiliary aids and services provision of the ADA 42 U.S.c. § 121 82(b)(2)(A)(iii), have failed to make their ATM banking services fully accessible and independently usable by blind persons. 42. Prov'lding auxiliary aids and services to make ATMs the Defendants own, operate, control and/or lease, or through which E*TRADE Bank offers its banking services, accessible to and independently usable by blind persons would neither fundamentally alter the nature of Defendants' banking services nor result in an undue burden.
COUNT IV (Violation of the ADA's Communication Barrier Removal Mandate) 43. The allegations contained in the previous paragraphs are incorporated by reference. 44. Each Defendant, in violation of 42 U.S.c. §12182 (b)(2)(A)(iv), has failed to remove communication barriers from the ATMs it owns, operates, controls and/or leases, or through which E*TRADE Bank otTers its banking services.
I I

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 12 of 16
45. Installing voice guidance technology to make ATMs the Defendants own, operate, control and/or lease, or through which E*TRADE Bank offers its banking services, accessible to and independently usable by persons who are blind is readily achievable.
COUNT V (Violation of the ADA's New Construction Mandate) 46. The allegations contained in the previous paragraphs arc incorporated by reference. 47. Each Defendant, in violation of 42 U.S.c. §12183, owns, operates, controls and/or leases or otTers banking services through, ATMs that were installed after January 26, 1993 and arc not readily accessible to and independently usable by blind persons. 48. Defendants are required to comply with the standards for accessible design set forth in the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). 28 C.F.R. § 36.406. ADAAG Section 4.34.5 requires that "[iJnstructions and all information for use [in ATM's] shall be made accessible to and independently usable by persons with vision impairments."
49. Each Defendant, in violation of42 U.S.C. §12183 and 28 C.F.R. § 36.406, has failed to make its ATM banking services fully accessible and independently usable by blind persons.
COUNT VI (Viollation of the Massachusetts Public Accommodations Act) 50. The allegations contained in the previous paragraphs are incorporated by reference.
12

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 13 of 16
51. Plaintiffs Adrielme Asch, Jennifer Bose, Theresa leraldi and Philip Oliver and Organizational PlaintifTs' members are legally blind and recognized as a protected class under Mass. Gen. Laws ch. 272, § 98.
52. Each Defendant owns, operates, controls and/or leases a place ofpubJic accommodation as defined by Mass. Gen. Laws ch. 272, § 92A.
53. Each Defendant, in violation of Mass. Gen. Laws ch. 272, § 98, has failed to make its ATM banking services fully accessible and independently usable by individuals who are blind.
COUNT VII (Violation of the Massachusetts Equal Rights Act) 54. The allegations contained in the previous paragraphs are incorporated by reference. 55. PlaintifTs Adrienne Asch, lennifer Bose, Theresa leraldi and Philip Nathanial Oliver and Organizational Plaintiffs' members arc legally blind and are recognized as a protected
class under Mass. Cons!. amend. exIV and under the Massachusetts Equal Rights Act, Mass.
Gen. Laws ch. 93, § 103(a). 56. The banking services offered through E*TRADE and Cardtronics ATMs in
Massachusetts constitute a program or activity under Mass. Const. amend. CXIV. 57. Each Defendant has excluded blind people from the participation in and benefits
of the banking services offered through E'TRADE and Cardtronics ATMs in Massachusetts and has subjected Plaintiffs to discrimination under Mass. Const. amend. CXIV and the Massachusetts Egual Rights Act, Mass. Gen. Laws ch. 93, § 103(a).
13

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 14 of 16

PRA YERS FOR RELIEF WHEREFORE, Plaintiffs request that the Court:
(a) exercise jurisdiction over this action; (b) declare that the actions and inactions of Defendants E*TRADE Access, Inc., E*TRADE Bank and Cardtronics violate Title III of the ADA, 42 U.S.C. §§ 12182 and 12183,28 C.F.R. § 36.101 e/ seq.. the Massachusetts Public Accommodations Act, Mass. Gen. Laws. ch. 272 §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103; (c) enjoin each of the Defendants from continuing to violate the ADA and Massachusetts law and order all Defendants immediately to make the necessary modifications to the ATMs they own, operate, control and/or operate and lease, so that blind people may have access to and independently use these ATMs; and (d) order such other relief as maybe just, equitable and appropriate, including an award of actual and punitive damages, reasonable attorneys' fees, litigation expenses and costs pursuant to 42 U.S.c. § 12205, and Mass. Gen. Laws ch. 15lB, §§ 5 and 9.

COMMONWEALTH OF MASSACHUSETTS, By its Attorneys,
Patricia Correa, BBO N6. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919

NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,
JuA(~~k--
Anthony Doniger, SBO No. 129420 Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak & Cohen, P.c. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

14

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 15 of 16
1J'-lwl ~i /!-/uLYCMYLI
Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030
355157
15

Case 1:03-cv-11206-NMG Document 115 Filed 03/18/05 Page 16 of 16

Dated: March 18,2005

CERTIFICATE OF SERVICE

I, Christine M. Netski, hereby certify that on the above date I served the within document via electronic mail and first-class mail postage prepaid on the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office ofthe Attorney General One Ashburton Place Boston, MA 02108 patty. correa@ago.state.ma.us Attorney for PlaintIff, Commonwealth of Massachusetts
Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@browngold.com Attorneys for Plainti ffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes, Esquire Rachel Splaine Rollins, Esquire Jenny K. Cooper, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe.kociubes@bingham.com rachel.rollins@bingham.eom j.C:J1L1},cg"P~,T!f"bj1) l(1111fll,.C:0)}J Attorneys for Defendants, E*TRADE Access, Inc. and E*TRADE Bank
Douglas P. Lobel, Esquire David A. Vogel, Esquire Arno ld & Porter 1600 Tysons Boulevard Suite 900 McLean, VA 22102 douglas Jobel@aporter.com david_vogel@aporter.com Attorneys for Defendants, E*TRADE Access, Inc. and E*TRADE Bank

3551.57
16

 
 Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 1 of 12

...

•

: : ' ~-:'- j')

UNITED STATES nIsT~c;t)~~lj~T

FOR THE DISTRICT OF MASSACHUSETTS

:"" I'! ,:: :~IC1 rOUin
COMMONW:~ALTH OF MASSACHUSETTS;'] j;: c: i :;; : iA:_~S,

ET AL., v.

Plaintiffs

CIVIL ACTION NO. 03-1 1206-MEL

E*TRADE ACCESS, INC., ET AL., Defendants

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST
!l EFENDANTS CARDTRONICS, LP AND CARDTRONICS, INC.
Plaintiffs seek partial summary judgment and declaratory and injunctive relief under Count V of th ;::ir Third Amended Complaint as to those ATMs (I) Cardtronics, LP and Cardtronics, hc. (collectively, "Cardtronics") own, (2) that were installed at their various locations after January 26, 1993, and (3) that do not have information and instructions for use that are acces:;ible to and independently usable by the blind. Count V alleges a violation of the ADA's new f:tcilities mandate, 42 U.S.c. § 12183 (a)(1), which requires that all facilities constructed or installed after January 26, 1993, must comply with all applicable Americans with Disabilities Act Accessibility Guidelines ("ADAAG") unless compliance is "structurally
impracticable ," As re( ently as one week ago, several blind persons went to ATMs Cardtronics owns but
were not able to use them because none of the information or instructions for use was accessible to and indepeldently usable by the blind, as ADAAG § 4.34.5 requires. Because the law does

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 2 of 12

.
not excuse thi:; failure to comply with ADAAG for ATMs installed over the past thirteen years (after January 26, 1993), Plaintiffs are entitled to summary judgment as to all such machines.
Plainti ffs are also entitled to affirmative injunctive relief directing the Defendants to comply with tle ADAAG requirement. Injunctive relief is the only relief Title III envisions for private Plaintiffs. 42 U.S.c. § 12188(a). Courts finding violations of the new facilities mandate have repeatedy granted affirmative injunctions instructing defendants to comply with ADAAG's requirements, without specifying the precise steps or methods the defendant should use to comply. Thm:, the Court, upon finding liability, should order the Defendants to take immediate steps to comply with their longstanding obligations under the ADA and its implementing regulations to make all information and instructions for use readily accessible to and

independently usable by the blind.

ARGUMENT

Pursuant to Rule 56, a party may obtain summary judgment if "the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show thll t there is no genuine issue as to any material fact and that the moving party is

entitled to jucgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
u.s. 317, 32A -325 (1986); Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.), cert.

denied, 502 U.S. 861 (1991); Desmond v. Federal Deposit Insurance Corp., 798 F. Supp. 829

(D. Mass. 19~)2). Plaintiffs satisfy that standard here.

I. THE FACTS ARE UNDISPUTED: BLIND PERSONS DO NOT HAVE ACCESS TO AND CANNOT INDEPENDENTLY USE ATMS CARDTRONICS OWN.

On or about June 2,2004, Cardtronics acquired the ATM business of Defendant

E*TRADE Access, Inc. Plaintiffs' Statement of Undisputed Facts Pursuant to L.R. 56.1

2

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 3 of 12
.
("U.F."), ~ 3; Ex. B. The acquisition included approximately 13,200 active ATMs, increasing the already existing Cardtronics ATM network to over 25,000 ATMs nationwide. U.F., ~~ 1,45; Ex. C. Accl)rding to its own statements, this acquisition makes Cardtronics the nation's
'1' largest indepelldent owner/operator of ATMs. U.F., 4-5; Ex. c.
The Cc:rdtronics ATM network consists of ATMs owned or leased by Cardtronics, and AIMs owned by third-party merchants, but operated by Cardtronics. U.F., ~ 2; Ex. A, pp. 26-7. Only the Card:ronics-owned AIMs are the subject of this Motion for Partial Summary Judgment.! C lrdtronies denominates the machines that it owns as "turnkey" deployments and it places these Cardtronics-owned machines with major retailers. U.F.,'~ 6-8; Ex. A, pp. 26-7. Cardtronics hLs entered into turnkey arrangements with, among others, A&P, Amerada Hess, Bloomingdale's, Circle K, Costco, Duane Reade, ExxonMobil, Giant, Kroger, Macy's, Mills Malls, Rite Aid, Sears, Sunoeo, Walgreens and Winn-Dixie. U.F., ~~ 6,8; Ex. A, pp. 26-7, 49.
A nurrber of blind individuals recently visited some ofthese retailers with turnkey Cardtronies ATMs on their premises, including Amerada Hess and Costco outlets in Massaehusett!:, and Rite Aid, Costeo, Giant, Circle K, and Save Rite2 retail outlets elsewhere throughout thl: country. Not one individual could successfully use the ATM by him or herself. Moreover, nO:le of the AIMs provided information and instructions for use accessible to and independent!) usable by these blind individuals, as the ADA and its implementing regulations,
I According to a Cardtronics filing with the SEC, it "operates" those Cardtronics ATMs which are merchant-owned. U.F., ~ 2; Ex. A, p. 26. Title III of the ADA imposes liability on any entity that owns or "operates" a public accommodation. Before seeking summary judgment as to those machines, Plaintiffs will complete discovery that will establish thn Cardtronics "operates" its merchant-owned machines. 2 According to the ATM Finder on Cardtronics's web-site, there is a Cardtronics ATM at a Winn Dixie store at 1200 Barrett Parkway, Kennesaw, Georgia. Winn Dixie recently declared bankruptcy and the Cardtronics ATM continues to be ,t the same location, but the grocery store is now called Save Rite.
3

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 4 of 12
including the ADAAG, require. U.F., ~~ 11, 15, 19,23; Ex. D (Declaration of Sharon Maneki)3; Ex. F (Declare.tion of Anil Lewis)4; Ex. H (Declaration of Scott LaBarre)5; Ex. J (Declaration of Jennifer Bose: .
The e~periences of Jennifer Bose, in Massachusetts, illustrate the problem. Ms. Bose, accompanied ')y Nicholas Paras, a sighted investigator for the Commonwealth, attempted to use three Cardtror.ics ATMs in Massachusetts. U.F., ~ 21-2; Ex. J, ~ 3; Ex. K (Declaration of Nicholas P. Paras), ~ 3. At an Amerada Hess in Needham, she found a machine with symbol markings on t 1e keys, but the symbols were neither Braille nor recognizable to her. As a result, the symbols provided no guidance to her as she tried to use the ATM. Ex. J, ~~ 9-10. Ms. Bose independentl) located a headphone jack and plugged in her headphones, slid her card through the card reader, and awaited verbal instructions. Ex. J, ~ 10. The audio, however, remained silent. Id. In order to proceed, Ms. Bose had to ask Mr. Paras for help, and he read the screen and guided her thlough the next step, which required her to pick a language and press the appropriate
button. Ex. J, ~ 11; Ex. K, ~ 11. Following this step, Ms. Bose heard through the headphones, "Welcome, please enter your secret number." Id. Ms. Bose entered her Personal Identification Number (PIN) and waited for further instruction. Id. Instead of providing further direction, the
machine startl:d beeping and Ms. Bose was unable to continue, even when she tried pressing random buttu1s. !d. From this point on, Ms. Bose could only use the ATM with the help of Mr.
3 Denise Altobelli, who accompanied Ms. Maneki, took photographs establishing that each ATM was a Cardtronics ATM. V.F., '\11); Ex. E (Declaration of Denise Altobelli). 4 Frank Pegram, who accompanied Mr. Lewis, took photographs confirming that the machines that Mr. Lewis sought to operat~ are Cardtronics machines. V.F., '\114; Ex. G (Declaration of Frank Pegram). 5 David Smith, a sighted person who accompanied Mr. LaBarre, took photographs and made observations establishing that these were indeed Cardtronics machines. V.F., '\118; Ex. I (Declaration of David K. Smith).
4

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 5 of 12
Paras, who toll her the text of each screen and the buttons she should push to accomplish the transaction sh(: desired. Id.
Similarly, Ms. Bose was unable to use Cardtronics ATMs at either the Costco or Amerada Hes~ in Waltham. Ex. J, "11"114-8. The Amerada Hess ATM had no Braille whatsoever, either on the keypads or in any instructional manual, and no headjack for voice guidance. Ex. J,
"114; Ex. K, "II.L With help from Mr. Paras, Ms. Bose slid her card through the card reader and
after receiving no further instructions, the machine began to beep. Ex. J, "115. By pressing all the buttons, she succeeded in hitting "Cancel" and getting her card back. Ex. J, "115; Ex. K, "115.
While the Costco ATM keys had Braille, there were no Braille instructions on the machine or a l~raille instruction booklet, rendering the Braille of no assistance to Ms. Bose in her attempt to ind::pendently use the ATM. Ex. J, "117. A headphone jack was present, but when Ms. Bose plugged in her headphones, it was inoperative. Ex. J, "117; Ex. K, "117.
At the Costco and Amerada Hess in Waltham and the Amerada Hess in Needham, Ms. Bose could or ly operate Cardtronics ATM machines by revealing her PIN number and obtaining guidance on each step from a sighted person, Mr. Paras, who read to her the text on each screen and told her which buttons she needed to press throughout the process. Ex. J, "11"116, 8, 11; Ex. K, "11"11 6, 8, 11. T nese experiences were extremely frustrating, as well as time consuming and inefficient for Ms. Bose. Without Mr. Paras' help, she would have been entirely unsuccessful in her transactio:1S at the Cardtronics ATMs. Ex. J, "1112.
Cardtronics will be unable to dispute that it owns ATMs that are neither accessible nor independently usable by the blind and, therefore, fail to meet the requirements of ADAAG, 28 U.S.c. App. A., § 4.34.5. As set forth below, for all ATMs that Cardtronics owns that were
5

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 6 of 12
installed after January 26, 1993, and that do not meet the ADAAG standard, Plaintiffs are
entitled to summary judgment and an order directing compliance.
II. DEFENDANTS' ATMS ARE FACILITIES COVERED BY ADAAG AND THE NEW FACILITIES MANDATE.
Plaintiffs allege in their Complaint that the Defendants have violated the ADA's new
facilities mandate, 42 U.S.c. § 12183 (a)(1), by failing to comply with the ADAAG standard
adopted as pa:i of this mandate. See Plaintiffs' Third Amended Complaint, Count V; see also
28 C.F.R. § 315.406; 28 U.S.C. Part 36 App. A., § 4.34.5. It is undisputed that the ADAAG
standard applies to Cardtronics ATMs,6 and the Court has ruled that Department of Justice
regulations, "hich incorporate the ADAAG, set forth the standard which is "sufficient to satisfy"
the ADA obli gation that ATMs be independently usable by blind persons. See Memorandum
and Order at g (2122/05). The ADAAG, adopted as regulation by the Department of Justice and codified at 28
C.F.R. Part 36 App A, were developed pursuant to the ADA for the purpose of establishing
design standards required for all (1) new facility construction; (2) owner-initiated alterations, to
the maximurr extent feasible; and (3) structural communication and architectural barriers in facilities in e;jstence on or before January 26, 1993, if readily achievable.7 42 U.S.c. §
6 In fact, Defenc .ants unsuccessfully sought judgment on the pleadings, arguing that the ADAAG standards barred the "sole" relief of voice guidance Plaintiffs requested and that upcoming changes in ADAAG standards would moot this lawsut. In their pleadings, the Defendants expressly asserted that their ATMs are facilities governed by ADAAG, that PDAAG regulations set forth the accessibility requirements for ATMs, and that those regulations require that ATl v1s be "independently usable" by blind people. See Memorandum in Support of Defendants' Rule l2(c) Motion for Judgment on the Pleadings ("Def. l2(c) Mem."), p. 2 (stating "ADAAG's specific provisions set forth accessibili ty requirements for ATMs" and quoting the "independently usable" standard) and p. 9 (emphasizing that Congress Ulambiguously expected compliance with ADAAG and that ADAAG addresses ATMs). 7 "Facilities" C(lver more than buildings and include equipment such as ATMs. ADAAG begins by explaining that "This documenl contains scoping and technical requirements for accessibility to buildings and facilities by individuals witt disabilities under the Americans with Disabilities Act (ADA) of 1990. These scoping and technical requirements ar~ to be applied during the design, construction and alteration of buildings and facilities covered by titles II and 1II (If the ADA ... " 28 C.F.R. Part 36, App. A, ADAAG, Purpose Clause, § 1 (emphasis added). In tum,
6

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 7 of 12
12204(b); see Department of Justice ADA Title III Technical Assistance Manual §§ III-5.000 and III-4.4300. See United States v. AMC Entertainment, Inc., 245 F. Supp 2d 1094, 1100 (C.D. Cal. 2003).
A "nEW facility" (one installed or built after January 26, 1993) must comply with the ADAAG reqlirements unless it is structurally impracticable to do so. 42 US.c. § 12193(a)(I). Within ADAAG, § 4.34.5 is the standard that applies to ATMs deployed after January 26, 1993. It is, therefore, the standard under which the Court should decide this motion for summary judgment on Count V of the Third Amended Complaint, targeted at Cardtronics-owned ATMs installed after January 26, 1993.8
Reco ~nizing that retrofits of existing facilities and changes to policies, auxiliary aids and services could be costly to the owner or operator of a public accommodation, Congress tempered those sections ofthe Act that imposed such requirements by, for example, allowing discriminato'y policies when nondiscrimination would impose an undue burden and excusing structural m(ldifications to existing facilities that would not be readily achievable. See, e.g., 42 US.c. § 12182(b)(2)(A)(ii)-(iv). H.R. Rep. 101-485(III), 101 st Congo 2nd Sess., pt. 3 at 60 (1990), reprinted in 1990 US.C.C.A.N. 445,483 ("House Report"). Congress still believed, however, th~t it was reasonable to expect compliance with respect to physical structures and facilities conpleted 30 months after the effective date ofthe Act (January 26, 1993), so it established (Inly a very limited exception from the new facilities mandate: compliance was
a "facility" is defined in part as "any portion of buildings, structures, site improvements ... equipment . .. or other . . . personal property located on a site." 28 C.F.R. § 36.104; 28 C.P.R. Part 36, App. A, ADAAG, Definitions, § 3.5. (emphasis addc,d). 8The Plaintiffs Third Amended Complaint also presses ADA claims that fall outside ADAAG because they do not deal with facilities at all. See Third Amended Complaint, Count I (based on the ADA's full enjoyment mandate, 42 U.S.C. § 1218::(a)), Count II (based on the reasonable modification of policies, procedures and practices mandate, 42 U.S.c. § 12182(2)(A)(ii)), and Count III (based on the auxiliary aids and services mandate, 42 U.S.C. § 12182(2)(A)(iii)). These counts are not at issue in this motion.
7

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 8 of 12
excused only ifit was "structurally impracticable." 42 U.S.C. § 12183(a)(I); see also House Report at 60. The structural impracticability exception, however, only arises when unique characteristics of terrain bar compliance with an ADAAG requirement. 9 A defense of structural impracticabili1y, therefore, does not apply to the ADA violation alleged in the Plaintiffs' Complaint. ArMs must provide all instructions and information for use in a format that is independently usable and accessible to the blind.
The Court has already held that ADAAG applies to the ATMs at issue and, therefore, for those ATMs owned by Cardtronics and installed after January 26, 1993, the Defendants must satisfy ADA's new facilities mandate, 42 U.S.c. § 12183 (a)(I), and its implementing ADAAG regulation, 28 U.S.c. Part 36 App. A., § 4.34.5, by offering information and instructions to blind customers in (l format they can use independently. The affidavits of the blind testers establish, however, that Cardtronics has not complied with the relevant ADAAG provision. Defendants have not, and ::annot, assert the only defense available for non-compliance-that unique characteristics of the terrain make it structurally impracticable for them to make their ArMs accessible to t>lind customers. Accordingly, the Court should enter both summary and declaratory judgments holding Cardtronics liable under Count V for all such ATMs.
III. THE COURT SHOULD ORDER CARDTRONICS TO COMPLY WITH ADAAG § 4.34.5.
Upon :~ranting partial summary judgment to Plaintiffs, the Court should order Cardtronics tc comply with ADAAG § 4.34.5 as to all ATMs it currently owns that were installed after January 26, 1993, and that do not have all information and instructions for use
9 "The limited st uctural impracticability exception means that it is acceptable to deviate from accessibility requirements onl y where unique characteristics of terrain prevent the incorporation of accessibility features and where providing accessibility would destroy the phYSical integrity of a facility." Preamble to 28 C.F.R. Part 36 Appendix, 56 F.R. 35546 et seq., Comments to Section 36.401 (July 26, 1991).
8

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 9 of 12
readily access ,ble to and independently usable by the blind. 10 Neither the law nor the facts are in
dispute. The cmforcement provisions of the ADA specifically authorize affirmative injunctive
relief. 42 U.S.c. § 12188(a)(1).11 Moreover, when the new facilities mandate is violated, the
ADA expressly requires that injunctive relief "include an order to alter facilities to make such
facilities readi ly accessible to and usable by individuals with disabilities...." 42 U.S.c.
§ 12188(a)(2)12 Court~ confronted with violations of Title Ill's new facilities mandate have issued such
affirmative in. unctions, specifying simply the ADAAG provision to which the public
accommodatil)ll must adhere. For example, the court in Independent Living Resources v. Oregon
Arena Corporation, 982 F. Supp. 698 (D. Ore. 1997), after determining that the owners ofa large
arena had vio ated a number of ADAAG's design provisions, ordered the defendants to comply
with the specifics of the applicable ADAAG standard. Jd. at 786 (directing that "[t]he suites
must comply with the design Standards and be made readily accessible to persons with
disabilities."). see Anderson v. Rochester-Genessee Regional Transportations Authority, 206
F.R.D. 57, 71 (W.D.N.Y. 2001) (in granting partial summary judgment in favor of plaintiffs,
defendants w!re ordered "to take immediate steps to comply with their obligations under the
10 Cardtronics 0' MIS some ATMs equipped with a voice guidance system that presents all instructions and information for lse in a manner accessible to and independently usable by the blind, including, notably, some of the ATMs E*TRAI IE Access, Inc. owned and equipped with voice guidance as a result of a partial settlement agreement betw ~en the parties. Plaintiffs, of course, do not seek relief as to those machines covered by that partial settlement agree ment nor as to any other Cardtronics-owned ATMs whose voice guidance system fully satisfies ADAAG's inde] )endent usability standard, not because voice guidance is the only method of satisfying the ADAAG requirement, bu, because it is one method that does satisfy the ADAAG requirement. II 42 U.S.c. § 1 ~188(a)(1) incorporates the remedies and procedures set forth in section 42 U.S.C. § 2000a-3(a) as the remedies an< 1procedures available under Title III. These include" ... an application for permanent or temporary injunction, restnining order, or other order...." 12 Plaintiffs beli :ve that the Court can order voice guidance, but because the Court has indicated otherwise, Plaintiffs seek, instead, aT injunction directing the Defendants to comply with ADAAG's specific directive addressing the accessibility of, '\TMs by the blind.
9

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 10 of 12 ADA and fedual regulations implementing that Act. ...") Given that the only relief that the Court can pro'ride in this Title III action is injunctive in nature, and given the years that Cardtronics hhs violated the ADAAG regulation, there is no reason for the Court to delay in promptly ordering compliance with the law.13 To do otherwise would be to find that there is a right without a remedy - a conclusion abhorrent to our jurisprudence. See, e.g.. Siegel v. First
Pa. Banking c: Trust Co., 201 F. Supp. 664, 670 (E.D. Pa. 1961)("A right without remedy is no
right at all."). CONCLUSION
For thl:se reasons, Plaintiffs request that their Motion for Partial Summary Judgment be granted as to 'lll Cardtronics-owned ATMs installed after January 26, 1993 and, that the Court order Defendlmts Cardtronics, LP and Cardtronics, Inc., to immediately take actions to comply with ADAAG § 4.34.5.
13 The injunctioll need not specify the manner in which the Defendants shall comply with the regulation. As Defendants havl: argued, see Deft 12(c) Mem., p. 3, and the Court has noted, the framers of the ADAAG determined to Ie ave it to the deployers of ATMs which method they would use to satisfy the ADAAG standard.
10

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 11 of 12
•
Respectfully submitted,

COMMONWjALTH OF MASSACHU:;ETTS, By its Attorneys,
Ci2Ci"IJu/J £: O~t-Udt /Cl't .J
Patricia Corre.l, BBO No. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburto 11 Place Boston, MA 02108 (617) 727-2200, ext. 2919

NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,
£Lt--~ Anthony Don~o. 129420
Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak &
Cohen, P.e. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030

Dated: April I), 2005

11

Case 1:03-cv-11206-NMG Document 123 Filed 04/07/05 Page 12 of 12

CERTIFICATE OF SERVICE
I, Chri:;tine M. Netski, hereby certify that on the above date I served the within document via electronic nail and first-class mail postage prepaid on the following counsel of record:

Patricia COIT,~a, Esquire Assistant Att:)rney General Director, Disability Rights Project Office of the Attorney General One Ashburt)n Place Boston, MA 02108 patty.coITea~ ~ago.state.ma.us Attorney for Plaintiff, Commonwealth of Massachuset :s
Daniel F. Goldstein, Esquire Sharon Krev)r-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltir.1ore Street, Suite 1700 Baltimore, MD 21202
dfg@brown~,old.com
skw@browngold.com Attorneys fo' Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Ma!,sachusetts, Inc., Adrienne Asch, Richard Dov'ns, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes, Esquire Rachel Splaine Rollins, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe.kociubes@bingham.com rachel.rollins@bingham.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank
Douglas P. Lobel, Esquire David A. Vogel, Esquire Brian Frazier, Esquire Arnold & Porter 1600 Tysons Boulevard Suite 900 McLean, VA 22102 douglas_lobel@aporter.com david_vogel@aporter.com brian_ frazier@aporter.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank

Christine M. Netski

361543.1
12

 
 Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

• ifi~

)

COMMONWEALTH OF MASSACHUSETTS)

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

E*TRADE ACCESS, INC. et al.,

)

)

Defendants.

)

)

Case No. 03 11206 MEL

ANSWER AND AFFIRMATIVE DEFENSES OF E*TRADE ACCESS, INC. AND E*TRADE BANK TO PLAINTIFFS' THIRD AMENDED COMPLAINT
Defendants E*TRADE Access, Inc. and E*TRADE Bank and (collectively

"E'TRADE"), by undersigned counsel, respond to the Third Amended Complaint as follows:

1. The allegations in Paragraph I state conclusions of law as to which no

response is required.

2. The allegations in Paragraph 2 state conclusions of law as to which no

response is required.

3. The allegations in Paragraph 3 state conclusions oflaw as to which no

response is required.

4. E*TRADE lacks knowledge or information sufficient to foml a belief as

to the truth of the allegations in the first two sentences of Paragraph 4. The remaining

allegations in Paragraph 4 state conclusions of law as to which no response is required.

5. E*TRADE lacks knowledge or information sufficient to fOlm a belief as

to the truth of the all'egations in the sentences one, two, four, five and six of Paragraph 5. The

Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 2 of 11
allegations in sentence three of Paragraph 5 state conclusions of/aw as to which no response is required.
6. The allegations in the first sentence of Paragraph 6 state conclusions of law as to which no response is required. E*TRADE lacks knowledge or information sufficient to foml a belief as to 11he truth of the remaining allegations in Paragraph 6.
7. The allegations in the first sentence of Paragraph 7 state conclusions of law as to which no response is required. E*TRADE lacks knowledge or information sufficient to foml a belief as to the truth of the remaining allegations in Paragraph 7.
8. The allegations in the first sentence of Paragraph 8 state conclusions of law as to which no response is required. E*TRADE lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 8.
9. The allegations in the first sentence of Paragraph 9 state conclusions of law as to which no response is required. E*TRADE lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 9.
10. The allegations in the first sentence of Paragraph 10 state conclusions of law as to which no response is required. E*TRADE lacks knowledge or infonnation suf1icient to form a bel ief as to tile truth of the remaining allegations in Paragraph 10.
11. The allegations in Paragraph 11 state conclusions of law as to which no response is required.
12. The allegations in Paragraph 12 state conclusions of law as to which no response is required.
13. The allegations in Paragraph 13 state conclusions of law as to which no response is required.
-2-

Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 3 of 11
14. The allegations in Paragraph 14 state conclusions oflaw as to which no response is required.
15. The allegations in Paragraph 15 state conclusions of law as to which no response is required.
16. E*TRADE admits on June 2,2004 it entered into a Purchase and Sale Agreement with Cardtronies, the content of which speaks for itself. The remaining allegations in Paragraph 16 state conclusions of law as to which no response is required.
17. E*TRADE denies the allegations in the first two sentences of Paragraph 17. E*TRADE admits on June 9, 2003 it signed a partial settlement agreement with the Commonwealth of Massachusetts and the National Federation of the Blind, the content of which speaks for itself.
18. E*TRADE denies the allegations in the first three sentences in Paragraph 18. The remaining allegations in Paragraph 18 state conclusions of law as to which no response is required.
19. The allegations in Paragraph 19 state conclusions of law as to which no response is required.
20. E*TRADE denies the allegations in Paragraph 20. 21. E*TRADE denies the allegations in Paragraph 21. 22. The allegations in Paragraph 22 state conclusions of law as to which no response is required. 23. The allegations in Paragraph 23 state conclusions of law as to which no response is required.
-3-

Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 4 of 11
24. E*TRADE denies the allegations in Paragraph 24. To the extent the allegations reference Cardtronics, E*TRADE lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 24.
25. E*TRADE denies the allegations in Paragraph 25. To the extent the allegations reference Cardtronics, E*TRADE lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 25.
26. E*TRADE denies the allegations in Paragraph 26. To the extent the allegations reference Cardtronics, E*TRADE lacks knowledge or information sufficient to form a belief as to the tmth of the allegations in Paragraph 26.
27. E*TRADE denies the allegations in Paragraph 27. To the extent the allegations reference Cardtronics, E*TRADE lacks knowledge or information sufficient to form a beliefas to the truth of the allegations in Paragraph 27.
28. E*TRADE denies the allegations in Paragraph 28. To the extent the allegations reference Cardtronies, E*TRADE lacks knowledge or information sufficient to fonn a belief as to the truth of the allegations in Paragraph 28.
29. The allegations in Paragraph 29 state conclusions oflaw as to which no response is required.
30. Because the Court ruled in its Order entered on February 22,2005 that the remedy of voice guidance technology is not required by the Americans with Disabilities Act, E*TRADE is not required to provide an answer to the allegations in Paragraph 30.
31. Because the Court ruled in its Order entered on February 22, 2005 that the remedy of voice guidance technology is not required by the Americans with Disabilities Act, E*TRADE is not required to provide an answer to the allegations in Paragraph 31.
-4-

Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 5 of 11
32. The allegations in Paragraph 32 state conclusions of law as to which no response is required.
33. E*TRADE incorporates its responses to Paragraphs 1-32 by reference as if fuJly set forth herein.
34. The allegations in Paragraph 34 state conclusions oflaw as to which no response is required.
35. The allegations in Paragraph 35 state conclusions of law as to which no response is required.
36. The allegations in Paragraph 36 state conclusions of law as to which no response is required.
37. E*TRADE incorporates its responses to Paragraphs 1-36 by reference as if fuJly set forth herein.
38. The allegations in Paragraph 38 state conclusions oflaw as to which no response is required..
39. The allegations in Paragraph 39 state conclusions oflaw as to which no response is required.
40. E*TRADE incorporates its responses to Paragraphs 1-39 by reference as if fully set forth herein.
41. The allegations in Paragraph 41 state conclusions of law as to which no response is required.
42. The allegations in Paragraph 42 state conclusions oflaw as to which no response is required.
-5-

Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 6 of 11
43. E*TRADE incorporates its responses to Paragraphs 1-42 by reference as if fuJly set forth herein.
44. The allegations in Paragraph 44 state conclusions oflaw as to which no response is req uired.
45. Because the Court ruled in its Order entered on February 22,2005 that the remedy of voice guidance technology is not required by the Americans with Disabilities Act, E*TRADE is not required to provide an answer to the allegations in Paragraph 45.
46. E*TRADE incorporates its responses to Paragraphs 1-45 by reference as if fuJly set forth herein.
47. The allegations in Paragraph 47 state conclusions of law as to which no response is required.
48. The allegations in Paragraph 48 state conclusions oflaw as to which no response is required.
49. The allegations in Paragraph 49 state conclusions of law as to which no response is required.
50. E*TRADE incorporates its responses to Paragraphs 1-49 by reference as if fully set forth herein.
51. The allegations in Paragraph 51 state conclusions of law as to which no response is required.
52. The allegations in Paragraph 52 state conclusions of law as to which no response is required.
53. The allegations in Paragraph 53 state conclusions of law as to which no response is required.
-6-
YA)36S73_1,DOC

Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 7 of 11
54. E*TRADE incorporates its responses to Paragraphs I-53 by reference as if fully set forth herein.
55. The allegations in Paragraph 55 state conclusions oflaw as to which no response is required.
56. The allegations in Paragraph 56 state conclusions of law as to which no response is required.
57. The allegations in Paragraph 57 state conclusions oflaw as to which no response is required.
AFFIRMATIVE DEFENSES FIRST DEFENSE
E*TRADE does not own, operate or lease the ATMs at issue. SECOND DEFENSE
The ATMs at issue are not places of public accommodation. THIRD DEFENSE
Plaintiffs lack standing. FOURTH DEFENSE
Plaintiffs failed to exhaust required administrative remedies. FIFTH DEFENSE
Plaintiffs are not entitled to actual or punitive damages. SIXTH DEFENSE
Plaintiffs' claims are barred by the statute oflimitations. SEVENTH DEFENSE
Plaintiffs have failed to state a claim upon which relief can be granted.
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Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 8 of 11
EIGHTH DEFENSE Plaintiffs have failed to name necessary and indispensable parties.
NINTH DEFENSE Requiring E*TRADE to ensure the ATMs at issue have audio capabilities would be an undue burden under 42 U.S.c. § l2l82(b)(2)(A)(iii) and applicable state law.
TENTH DEFENSE
E*TRADE did not fail to remove a "communication barrier that [is1structural in
nature" under 42 U.S.C. § l2l82(b)(2)(A)(iv). ELEVENTH DEFENSE
The removal demanded by Plaintiffs under 42 U.S.c. § 12l82(b)(2)(i\)(iv) is not "readily achievable."
TWELFTH DEFENSE Plaintiffs did not request a "reasonable modification" of any "policies, practices and procedures" under 42 U.S.C. § 12182(b)(2)(A)(ii).
THIRTEENTH DEFENSE Plaintiffs were not denied any rights on the basis of their disability and good cause exists for any actions taken by E*TRADE.
FOURTEENTH DEFENSE E*TRADE has not violated the Americans with Disabilities Act Bankibility Guidelines, which apply only to certain ATMs.
FIFTEENTH DEFENSE The Americans with Disabilities Act does not require E*TRADE to provide audio capabilities or voice guidance technology on ATMs.
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Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 9 of 11

WHEREFORE, Defendant E*TRADE respectfully requests that this Court: 1. dismiss with prejudice all claims against E*TRADE; 2. enter judgment in favor of E*TRADE; 3. award E*TRADE its reasonable attorney's i"e.:s and costs pursuant to 42 U.S.c. §§ 12188 & 2000a-3(b); and 4. grant such other relief as the Court deems just and proper.

Dated: April 6, 2005

Respectfully submitted,
Jo p L. Koc~bes (BB # 276360) Rac ael Splaine Rollins (BBO# 641972) Jenny K. Cooper (BBO# 646860) BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000 (617) 951-8736 (fax)
Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000 (703) 720-7399 (fax)
Counsel jor Defendants E*TRADE Access, fnc. and E*TRADE Bank

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Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 10 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS )

etal.,

)

)

Plain tiffs,

)

)

~

)

)

E*TRADE ACCESS, INC.,

)

et al.,

)

)

Defendants.

)

)

Case No. 03 11206 MEL

CERTIFICATE OF SERVICE

I, Jenny Cooper, hereby certify that on April 6, 2005, I caused a copy of the foregoing document to be served, via electronic and first class mail, upon the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 pattv.correa(timgo.state.ma.lIs Attorney for Plaintiff Commonwealth ofMassachusetts
Anthony M. Doniger, Esquire Chri stine M. Netski, Esq uire Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 don ig('rCa; srbc.coIII nctski(iDsrbc.com Atlorneys for Plaintiffs, National Federation of the Blind, lnc., National Federation ofBlind ofMassachusetts, inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esq. David Vogel, Esq. Arnold & Porter 1600 Tysons Blvd., Suite 1200 McLean, VA 22102 Douglas LobeltUjapOl'ter.com David Vogel(iliaporter.com Attorneys for Defendants, E*Trade Access, inc., and E*Trade Bank

L1TDOCS:533011.1

Case 1:03-cv-11206-NMG Document 126 Filed 04/06/05 Page 11 of 11 Danie1 F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw(ft.ibrowngold.com Attorneys for Plaintilft, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver
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LlT[)()( 'S:533011_1

 
 Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 1 of 11

r' : .- i1
UNITED STATES DISTRICTCQUR1;c; ; ICE
FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS )

etal.,

)

)

Plaintiffs,

)

'I\,

P :,-,--.,.,

1-. ('
l, ,,)

v. E*TRADE ACCESS, INC. et al.,

)

)

Case No. 03 11206 MEL

)

)

)

Defendants.

)

)

ANSWER AND AFFIRMATIVE DEFENSES OF CARDTRONICS TO PLAINTIFFS' THIRD AMENDED COMPLAINT
Defendants Cardtronics, Inc. and Cardtronics, LP (collectively "Cardtronics"), by undersigned counsel, responds to the Third Amended Complaint as follows:
1. The allegations in Paragraph 1 state conclusions of law as to which no response is required.
2. The allegations in Paragraph 2 state conclusions oflaw as to which no response is required.
3. The allegations in Paragraph 3 state conclusions oflaw as to which no response is required.
4. Cardtronics lacks knowledge or infonnation sufficient to form a belief as to the truth ofthe allegations in the first two sentences of Paragraph 4. The remaining allegations in Paragraph 4 state conclusions oflaw as to which no response is required.
5. Cardtronics lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in the sentences one, two, four, five and six of Paragraph 5. The

Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 2 of 11
allegations in sentence three of Paragraph 5 state conclusions oflaw as to which no response is required.
6. The allegations in the first sentence of Paragraph 6 state conclusions of law as to which no response is required. Cardtronics lacks knowledge or info=ation sufficient to fo= a belief as to the truth of the remaining allegations in Paragraph 6.
7. The allegations in the first sentence of Paragraph 7 state conclusions of law as to which no response is required. Cardtronics lacks knowledge or info=ation sufficient to fo= a belief as to the truth of the remaining allegations in Paragraph 7.
8. The allegations in the first sentence of Paragraph 8 state conclusions of law as to which no response is required. Cardtronics lacks knowledge or info=ation sufficient to fo= a belief as to the truth of the remaining allegations in Paragraph 8.
9. The allegations in the first sentence of Paragraph 9 state conclusions of law as to which no response is required. Cardtronics lacks knowledge or info=ation sufficient to fo= a belief as to the truth of the remaining allegations in Paragraph 9.
10. The allegations in the first sentence of Paragraph 10 state conclusions of law as to which no response is required. Cardtronics lacks knowledge or info=ation sufficient to fo= a belief as to the truth of the remaining allegations in Paragraph 10.
II. The allegations in Paragraph II state conclusions oflaw as to which no response is required.
12. The allegations in Paragraph 12 state conclusions oflaw as to which no response is required.
13. The allegations in Paragraph 13 state conclusions oflaw as to which no response is required.
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Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 3 of 11
14. The allegations in Paragraph 14 state conclusions oflaw as to which no response is required.
15. The allegations in Paragraph 15 state conclusions oflaw as to which no response is required.
16. Cardtronics admits on June 2, 2004 it entered into a Purchase and Sale Agreement with E*TRADE Access, the content of which speaks for itself. The remaining allegations in Paragraph 16 state conclusions oflaw as to which no response is required.
17. Cardtronics lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 17.
18. Cardtronics lacks knowledge or information sufficient to form a belief as to the truth of the allegations in the first three sentences in Paragraph 18. The remaining allegations in Paragraph 18 state conclusions oflaw as to which no response is required.
19. The allegations in Paragraph 19 state conclusions oflaw as to which no response is required.
20. Cardtronics lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 20.
21. Cardtronics lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 21.
22. The allegations in Paragraph 22 state conclusions of law as to which no response is required.
23. The allegations in Paragraph 23 state conclusions of law as to which no response is required.
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Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 4 of 11
24. Cardtronics denies the allegations in Paragraph 24. To the extent the allegations reference E*TRADE, Cardtronics lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 24.
25. Cardtronics denies the allegations in Paragraph 25. To the extent the allegations reference E*TRADE, Cardtronics lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 25.
26. Cardtronics denies the allegations in Paragraph 26. To the extent the allegations reference E*TRADE, Cardtronics lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 26.
27. Cardtronics denies the allegations in Paragraph 27. To the extent the allegations reference E*TRADE, Cardtronics lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 27.
28. Cardtronics denies the allegations in Paragraph 28. To the extent the allegations reference E*TRADE, Cardtronics lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 28.
29. The allegations in Paragraph 29 state conclusions oflaw as to which no response is required.
30. Because the Court ruled in its Order entered on February 22,2005 that the remedy of voice guidance technology is not required by the Americans with Disabilities Act, Cardtronics is not required to provide an answer to the allegations in Paragraph 30.
31. Because the Court ruled in its Order entered on February 22,2005 that the remedy of voice guidance technology is not required by the Americans with Disabilities Act, Cardtronics is not required to provide an answer to the allegations in Paragraph 31.
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Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 5 of 11
32. The aJlegations in Paragraph 32 state conclusions of law as to which no response is required.
33. Cardtronics incorporates its responses to Paragraphs 1-32 by reference as if fully set forth herein.
34. The aJlegations in Paragraph 34 state conclusions of law as to which no response is required.
35. The aJlegations in Paragraph 35 state conclusions oflaw as to which no response is required.
36. The allegations in Paragraph 36 state conclusions of law as to which no response is required.
37. Cardtronics incorporates its responses to Paragraphs 1-36 by reference as if fully set forth herein.
38. The aJlegations in Paragraph 38 state conclusions oflaw as to which no response is required.
39. The aJlegations in Paragraph 39 state conclusions oflaw as to which no response is required.
40. Cardtronics incorporates its responses to Paragraphs 1-39 by reference as if fully set forth herein.
41. The allegations in Paragraph 41 state conclusions of law as to which no response is required.
42. The aJlegations in Paragraph 42 state conclusions oflaw as to which no response is required.
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Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 6 of 11

43. Cardtronics incorporates its responses to Paragraphs 1-42 by reference as if fully set forth herein.
44. The allegations in Paragraph 44 state conclusions oflaw as to which no response is required.
45. Because the Court ruled in its Order entered on February 22,2005 that the remedy of voice guidance technology is not required by the Americans with Disabilities Act, Cardtronics is not required to provide an answer to the allegations in Paragraph 45.
46. Cardtronics incorporates its responses to Paragraphs 1-45 by reference as if fully set forth herein.
47. The allegations in Paragraph 47 state conclusions oflaw as to which no response is required.
48. The allegations in Paragraph 48 state conclusions of law as to which no response is required.
49. The allegations in Paragraph 49 state conclusions of law as to which no response is required.
50. Cardtronics incorporates its responses to Paragraphs 1-49 by reference as iffully set forth herein.
51. The allegations in Paragraph 51 state conclusions of law as to which no response is required.
52. The allegations in Paragraph 52 state conclusions of law as to which no response is required.
53. The allegations in Paragraph 53 state conclusions of law as to which no response is required.

VA_736874JDOC

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Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 7 of 11
54. Cardtronics incorporates its responses to Paragraphs 1-53 by reference as iffully set forth herein.
55. The allegations in Paragraph 55 state conclusions oflaw as to which no response is required.
56. The allegations in Paragraph 56 state conclusions oflaw as to which no response is required.
57. The allegations in Paragraph 57 state conclusions oflaw as to which no response is required.
AFFIRMATIVE DEFENSES FIRST DEFENSE
Cardtronics does not own, operate or lease many of the ATMs at issue. SECOND DEFENSE
The ATMs at issue are not places of public accommodation. THIRD DEFENSE
Plaintiffs lack standing. FOURTH DEFENSE
Plaintiffs failed to exhaust required administrative remedies. FIFTH DEFENSE
Plaintiffs are not entitled to actual or punitive damages. SIXTH DEFENSE
Plaintiffs' claims are barred by the statute oflimitations. SEVENTH DEFENSE
Plaintiffs have failed to state a claim upon which relief can be granted.
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Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 8 of 11
EIGHTH DEFENSE Plaintiffs have failed to name necessary and indispensable parties.
NINTH DEFENSE Requiring Cardtronics to ensure the ATMs at issue have audio capabilities would be an undue burden under 42 U.S.C. § 121 82(b)(2)(A)(iii) and applicable state law.
TENTH DEFENSE
Cardtronics did not fail to remove a "communication barrier that [is1structural in
nature" under 42 U.S.C. § 121 82(b)(2)(A)(iv). ELEVENTH DEFENSE
The removal demanded by Plaintiffs under 42 U.S.C. § 121 82(b)(2)(A)(iv) is not "readily achievable."
TWELFTH DEFENSE Plaintiffs did not request a "reasonable modification" of any "policies, practices and procedures" under 42 U.S.C. § l2182(b)(2)(A)(ii).
THIRTEENTH DEFENSE Plaintiffs were not denied any rights on the basis of their disability and good cause exists for any actions taken by Cardtronics.
FOURTEENTH DEFENSE Cardtronics has not violated the Americans with Disabilities Act Accessibility Guidelines, which apply only to certain ATMs.
FIFTEENTH DEFENSE The Americans with Disabilities Act does not require Cardtronics to provide audio capabilities or voice guidance technology on ATMs.
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Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 9 of 11
WHEREFORE, Defendant Cardtronics respectfully requests that this Court: 1. dismiss with prejudice all claims against Cardtronics; 2. enter judgment in favor ofCardtronics; 3. award Cardtronics its reasonable attorney's fees and costs pursuant to 42 U.S.C. §§ 12188 & 2000a-3(b); and 4. grant such other relief as the Court deems just and proper.
Respectfully submitted,
iiJtzt/;; ((gfz1~i60)
Rachael Splaine Rollins (BBO# 641972) Jenny K. Cooper (BBO# 646860) BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 021 10 (617) 951-8000 (617) 951-8736 (fax) Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000 (703) 720-7399 (fax) Counsel for Defendants Cardtronics, Inc. and Cardtronics, LP Dated: April 11, 2005
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Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 10 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS )

etal.,

)

)

Plaintiffs,

)

)

~

)

)

E*TRADE ACCESS, INC.,

)

etal.,

)

)

Defendants.

)

)

Case No. 03 11206 MEL

CERTIFICATE OF SERVICE

I, Jenny Cooper, hereby certify that on April 11, 2005, I caused a copy of the foregoing document to be served, via electronic and first class mail, upon the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office ofthe Attorney General One Ashburton Place Boston, MA 02108 pattv.correa@ago.state.ma.us Attorneyfor Plaintiff Commonwealth ofMassachusetts
Anthony M. Doniger, Esquire Christine M. Netski, Esquire Sugarman, Rogers, Barshak &
Cohen, P.e. 101 Merrimac Street Boston, MA 02114-4737 doniger@srbc.com netskiW),srbc.com Attorneys for Plaintifft, National Federation of the Blind, Inc., National Federation ofBlind ofMassachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esq. David Vogel, Esq. Arnold & Porter 1600 Tysons Blvd., Suite 1200 McLean, VA 22102 Douglas LobeIW)aporter.com David Vogel@aporter.com Attorneysfor Defendants, £*Trade Access, Inc., and £*Trade Bank

L1TDOCSc5330 11.1

Case 1:03-cv-11206-NMG Document 131 Filed 04/11/05 Page 11 of 11 Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@,browngold.com Attorneys for Plaintijft, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver
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L1TDOCS:5330 11.1

 
 Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS)

ad,

)

)

Plaintiffs,

)

)

v,

)

)

E*TRADE ACCESS, INC. et al.,

)

)

Defendants.

)

--------------------------~)

Case No. 0311206 MEL

MEMORANDUM IN SUPPORT OF DEFENDANTS' CROSS·MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS'
CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT

Plaintiffs either will not or cannot allege a valid claim under Title III of the

Americans with Disabilities Act ("ADA"). The law is absolutely clear: Title III imposes an

affirmative burden on Plaintiffs to identify the specific accommodation they contend will rectify

an alleged inaccessibility. These Plaintiffs obstinately refuse to acknowledge this burden. They

pretend Title III law does not apply to them, and they have repeatedly refused to identifY any

specific accommodation that they champion. Plaintiffs' silence is remarkable; it pervades their

thrice-amended Complaint, their numerous motions, and their discovery responses.

Throughout this lawsuit, Plaintiffs have identified only two specific

accommodations, but Plaintiffs' claim is not based on either one. (1) Plaintiffs' primary purpose

in filing the lawsuit was to require Defendants to implement voice-enabled technologies in the

Defendants' ATMs. In its February 2005 Order, tbe Court correctly ruled that Plaintiffs were not

entitled to this relief under the ADA. (2) The only other specific accommodation Plaintiffs have

ever mentioned is Braille instructions. However, Plaintiffs' own Third Amended Complaint

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 2 of 20
expressly rejects any claim for Braille, alleging that Braille could never be a sufficient accommodation. Third Amended Complaint '129. Plaintiffs are masters of their O1,vn Complaint; having chosen to plead that Braille is not satisfactory to them, they cannot not rely on a Braille accommodation to satisfy their affirmative burden.
In its February 2005 Order, the Court concluded (under the liberal standard of review of Rule l2(b») that Plaintiffs might be able to establish a "set of facts" that would constitute a valid claim under the ADA. It is now obvious that Plaintiffs ",ill not or cannot even allege, much less prove, the facts that constitute a sufficient ADA claim. Defendants do not suggest that no accommodation exists. However, Plaintiffs, not Defendants, have the initial burden of identifying one or more appropriate accommodations. Because Plaintiffs refuse to identify an accommodation acceptable to them, and therefore have not alleged a valid ADA claim, the Court should grant summary judgment in Defendants' favor and dismiss Plaintiffs' ADA claims with prejudice.
BACKGROUND
Plaintiffs have argued at length about perceived inaccessibility of Defendants' ATMs, but Plaintiffs have never identified a specific, legally permissible accommodation they seek. Instead, Plaintiffs focus all of their energy on a potential accommodation this Court has already rejected (voice-enabled technology) and another accommodation Plaintiffs themselves have rejected as insufficient under the ADA (Braille).
In their Third Amended Complaint, substantively unchanged from their initial Complaint, Plaintiffs allege that Defendants' ATMs are inaccessible to blind people. Despite being filed well after the Court rejected their claim for voice-enabled technology, the Third Amended Complaint at length expounds on the virtues of this technology. See Third Amended
-2 -

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 3 of 20
Complaint ,-nr 25, 30 & 31. The Third Amended Complaint also expressly rejects the use of
Braille instructions as an accommodation for blind users ofthe ATMs: Although some E*TRADE and Cardtronics ATMs have Braille keypads and labels, this feature is not an effective accommodation under the ADA.
fd. 1[29. Nowhere does the Third Amended Complaint mention any other specitlc accommodation to the alleged inaccessibility.
Plaintiffs similarly make no mention of any other accommodation in their pleadings and discovery responses. In fact, Plaintiffs have refused to identify any other aceommodation. Defendants served a pointed interrogatory, asking Plaintiffs to "[dJescribe in detail each and evcry different type of accommodation that PlaintifIs ... contend[] is reasonable ... and would make an ATM 'independently usable' by blind people ...." Plaintiffs' rambling, argumentative response never answered the question: Plaintiffs did not identify a single, specific accommodation for blind users of ATMs, other than voice-enabled technology. See Plaintiffs' Response to Defendants' Second Set of Interrogatories, attached hereto as Exhibit I. In no other pleading, filing or oral argument has Plaintiff identified any solution to the alleged inaccessibility of ATMs to blind people, other than voice-enabled technology or Braille. Plaintiffs have had more than ample opportunity, having filed oppositions to Defendants' separate motions under Rule 19 and for judgment on the pleadings, and having filed numerous discovery-related motions.
STANDARD OF REVIEW Under Fed. R. Civ. P. 56, summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett,
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Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 4 of 20
477 U.S. 317, 322 (1986); accord Terry v. Bayer Corp., 145 FJd 28, 34 (1st Cir. 1998)(to avoid summary judgment, plaintiff must show existence of evidence in support of each element essential to plaintiff's case); Ralar Distribs., Inc. v. Rubbermaid, Inc., 4 FJd 62, 67 (lst Cir.1993). DeHmdanls can move for summary judgment not by offering evidence but merely by pointing out the lack of evidence on an essential element of Plaintiffs' claim. Terry, 145 F.3d at 34; Storage Tech. Corp. v. Cisco ,Sys" Inc., 395 F.3d 921, 923 (8th CiT. 2005); Millennium Petrochemicals, Inc. v. Brown & Root Holdings, Inc., 390 F.3d 336,339 (5th Cir. 2004). In response to such a motion, Plaintiffs must come forward with admissible evidence sho'wing that alleast a genuine dispute exists on every essential element of their claim. Ce/otex, 477 U.S. at 322; Terry, 145 FJd at 34. If Plaintiffs do nOI oppose such a motion '\\o'ith evidenc,e supporting every element of their claim, the Court should enter summary judgment in favor of the Defendants. Celotex,477 U.S. at 322; Mitchell v. City ofMoore, Ok/a., 218 F.3d 1190, 1197-98 (10th Cir. 2000).
ARGUMENT In its February 22, 2005 Order, the Court did not dismiss Plaintiffs' ADA claims outright because "the Plaintiffs may be able to prove a set of facts thai would entitle them to some relief, other than voice-guidance technology." Order at 9. Defendants respectfully submit that, after numerous opportunities, Plaintiffs have more than sufficiently demonstrated they are unwilling or unable to even allege much less prove any facts that constitute a sufficient ADA claim. Plaintiffs abjectly refuse to identify even one specific accommodation they seek at Defendants' ATMs. Plaintiffs would rather turn that burden over to the Defendants in the first instance. Plaintiffs therefore fail to state a valid claim under the ADA. The precedent under the ADA is remarkably stark and consistent: the
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Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 5 of 20
plaintiff has the initial burden of identifying the accommodation or modification it sceks in the litigation, Plaintiffs here cannot ignore this obligation and pretend it should fall on Defendants, Because they are unwilling or unable to satisfy their affirmative obligation, Plaintiffs fail to state a valid claim under the ADA, and the Court should grant summary judgment in Defendants' favor, I. PLAINTIFFS HAVE THE AFFIRMATIVE BURDEN OF IDENTIFYING
THE ACCOMMODATION THEY SEEK UNDER TITLE III OF TilE ADA The First Circuit demands that an ADA plaintiff "bear the burden of showing the
existence of a reasonable accommodation," Feliciano v, Siale o/R.I., 160 F.3d 780, 786 (1 st Cir. 1998); accord Garcia-Ayala v, Lederle Parenteral:;, Inc" 212 P,3d 638, 648 (1st Cif. 2000) ("the burden of shovving reasonable accommodation is on the plaintiff'), Only if Plaintiffs allege the existence of a reasonable accommodation does the burden shift to Defendants to show the proposed accommodation is unreasonable, Feliciano, 160 FJd at 786-87; Ward v, Massachusetts Health Res(!arch Ins'" Inc" 209 P,3d 29, 36-37 (1st Cir. 2000) (where plaintiff first identified the accommodation, burden shifted to defendant to show it would impose an undue hardship),
Plaintiffs have consistently but wrongly tried to distinguish this First Circuit precedent by arguing that it does not apply to their claim under Title III of the ADA (42 U,S.c. §§ 12181-12189, concerning public accommodations), but only arises under Title I (42 U.S,C, §§ 12111-12117, concerning employment). For example, Plaintiffs have ridiculed their obligation to identify a reasonable accommodation or modification as a "bizarre notion. , ' that arises in ADA employment cases, but is not part ofthe jurisprudence of Title III, the public accommodations section of the ADA." Plaintiffs' Motion to Compel Further Answers to Their
- 5-

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 6 of 20
First Set of Interrogatories at 2 n. 1. Plaintitl's do not cite a single case to support this proposition; the reason is because Plaintiffs are simply VvTong.
As in other ADA cases, Title III plaintiffs are absolutely required "to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits." Borkowski v. Valley Cent. Sch. Disr., 63 FJd 131, 138 (2d Cir. 1995); accord Guckenberger v. Boston Univ., 974 F. Supp. 106, 146 (D. Mass. 1997)("In the reasonable moditications context, the plaintiff has the initial burden of proving 'that a modification was requested and that the requested modification is generally reasonable"') (quoting Johnson v. Gambrinus Co" 116 FJd 1052, 1059 (5th Cir. 1997)); Dahlberg v. Avis Rent A Car Sys., Inc., 92 F. Supp, 2d 1091, 11 05 (D. Colo. 2000)("[T]he plaintiff in a title III case has the burden of proving that a modification was requested and that the requested modification is reasonable. "). It makes perfect sense to apply to Title III claims the standard developed under Title I, because "there appears to be little, if any, substantive difference between the 'reasonable accommodation' which title I requires and the 'reasonable modification' which title III mandates." Dahlberg, 92 F. Supp. 2d at 1\05-06.
The First Circuit is consistent Vvith other courts that require a Title III plaintiff to identifY what reasonable accommodation or modification would afford them access. The First Circuit set out the framework for a Title III plaintifl' in a retail sales case:
To recover under section 12182(b)(2)(A)(ii) in a retail sale case ... the plaintiff must show that the defendant has a discriminatory policy or practice in effect; that he (tlte plaintiff) requested a
reasonable modifieation in tltat policy or practice which, if
granted, would have afforded him access to tlte desired goods; that the requested modification-or a modification like it-was necessary to afford that access; and that the defendant nonetheless refused to modify the policy or practice,
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Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 7 of 20
Dudley v. Hannaford Bros. Co., 333 FJd 299, 307 (lst Cir. 2003) (emphasis added); see also Goldstein v. Harvard Univ., 77 Fed. Appx. 534, 537 (lst Cir. 2003) ("The operative provision, 42 U.S.C. § 121S2(b)(2)(A)(ii), requires a person with a disability to request a reasonable and necessary modification."). These cases make clear that a mere showing of inaccessibility is inadequate to state a claim under Title III. II. PLAINTIFFS HAVE NOT IDENTIFIED ANY SPECI.FIC ACCOMMODATION
Plaintiffs do not present any specific accommodation they desire under the ADA, and therefore they have not proven a valid ADA claim.
Because Plaintiffs have never presented any specific accommodation they claim satisfies the ADA (other than voice-enabled technology), they have not proven a valid ADA claim. Their demand for accommodations is always made in the broadest terms, for example: "Defendants must satisfy ADA's new facilities mandate, 42 U.S.C. § 121 83(a)(1), and its implementing ADAAG regulation, 28 U.S.c. Part 36 App. A., § 4.34.5, by offering information and instructions to blind customers in a format they can use independently." Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment at 8 ("P]' Mem.").
Besides voice-guidance technology, which the Court dismissed from this lawsuit, the only other specific accommodation the Plaintiffs have ever identified is Brailk. Ironically, Plaintiffs' motion implies that Braille instructions might be a sufficient accommodation, see, e.g.. PI. Mem. at 5, and the vast majority of the declarations accompanying Plaintiffs' motion address Braille keys and instructions at 12 of Defendants' ATMs. However, Plaintiffs have previously scoffed at Braille as a reasonable accommodation -' even after the Court recently rejected Plaintiffs' preferred voice-enabled technology. Plaintiffs' Third Amend(:d Complaint outright alleges, "Although some E*TRADE and Cardtronics ATMs have Braille keypads and
- 7-

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 8 of 20
labels, this feature is not an effective accommodation under the ADA." Third Amended Complaint ~ 29. Plaintiffs cannot ask for summary judgment on a theory baldly rejected by their own Complaint. Stefanik v. Friendly Ice Cream Corp" 183 F.R.D. 52, 53-54 (D. Mass. 1998) (on motion for summary judgment, "plaintiff is simply not permitted to offer, without explanation, evidence directly contradicting the allegations of his own complaint. , .. [P]laintiff is not permitted to kick over the chess board in the face of a checkmate. He is bound by the averments of his pleadings and may not. , . simply contradict them to avoid summary judgment"), If Plaintiffs desire to reverse course almost two years into this litigation and now seek Braille accommodations, they would need to ask for leave to amend their Complaintsomething Plaintiffs plainly refused to do.
Plaintiffs demonstrate in their own motion for summary judgment that they have no intention of asking for a specific accommodation at Defendants' ATMs, Through their motion, Plaintiffs seek an injunction that uses the broadest possible language constituting
nothing more than a prohibited "obey the law" injunction, see Defendants' Opposition to
Plaintiff's' Motion for Summary Judgment at 9-12. In support of that vague, unenforceable injunction, Plaintiffs contend they "need not specify the manner in which the Defendants shall comply ",ith regulation." PI, Mem, at 10 n,13. This argument demonstrates that Plaintiffs are unable or unwilling to satisfy their affirmative burden under the ADA to allege thl: particular accommodation they seek.
'!be PlaintitTs are masters oftheir own Complaint; it is their lawsuit, not the Court's and certainly not the Defendants'. Plaintiffs choose not to identify the accommodation(s) about which the litigation should revolve, and Plaintiffs therefore fail to satisfy their affirmative burden under the ADA. Neither the Court nor the Defendants have the
-8-

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 9 of 20

obligation or burden of filling the void left in the Plaintiffs' affirmative case. With the Plaintiffs having refused time after time over two years to meet their own burden, it is no longer a matter of theoretical possibilities that th,: Plaintiffs might prove at trial (as it was when the Court ruled in February on Defendants' Motion for Judgment on the Pleadings). Lacking any evidence from the Plaintiffs that would satisfy their affirmative burden, Defendants are entitled to summary judgment.

CONCLUSION For these reasons, the Court should grant Defendants' Cross Motion for Summary Judgment On Plaintiffs' Claims Under The ADA, and enter final judgment in Defendants' favor dismissing Vvith prejudice Plaintiffs' claims arising under the Amerieans With Disabilities Act.

Respectfully submitted,
E*TRADE ACCESS, INC., E*TRADE BANK, CARDTRONICS, LP AND CARDTRONICS, INC,
By their attorneys,

Dated: June 15, 2005

Ja~~~""6~36-:-:0:--'--
Jenny K. Cooper BBO # 646860 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P, Lobel David A. Vogel AR>JOLD & PORTER LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 720-7000

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Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 10 of 20
EXHIBIT 1

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 11 of 20

UNl'I'JID STATJ!S DISTRICT COURT FOR THE DISTRICT OF MASSACHU''''SE''''II''1'C'QS

.. .. .. .. .. .. to .. to .. .. .. '. .. .. .. .. .. .. ..
COMMONWEAL1H OF MASSACHUSJrl'l'S, • NATIONAL FEDERATION OF THE BLlND, INC., NATIONAL FEDERATION OF •
nm BLlND OF MASSACHUSEl'l'S, INC.,
ADlUENNE ASCH, JENNIFER. BOSE,
lHERESA JERALDl and
.PlULIP OI.IVER,
Plaintiff.,
v.
EorrRADE ACCESS, INC. and EorrRADE BANK,

c.A. No.; 03 llZ06-MEL

. . . .. .. .. . .. ,. .. . .. .. .. .. ..
COMMONWEALTH'S RESPONSES TO DEFENDANT E*TRADE ACCESS. INC.'S SECOND SET OJ'Im'ERItOGATORIES
TO PLAINTIFF COMMPNWIALIH OfM4§§ACUUSITTS
In ~ with Fed. It.. Civ. P. 26 and 33, the Commonwealth her;eby submits illl respome to the Defendant B·TRADE ~ Inc.'s Second Set ofIuterroaatories to Plaintiff Commonwealth ofM.uachuseUs. The: Commonwealthreserves its right to supplemllllt 1111
ro&pQIIlIC.
DIQNITIQNS I. "Commonwealth" refers to plalntiffthe Commonwealth ofM.nBctmsetts.
2. "NFB" reb to the National FederaI:ion ofthe BIiDd, Inc. 3 . "Access" refers 10 defendant E*TRADB ~. Inc.

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 12 of 20
4. •Allied 1awycr d~e' refm to the htrine variously so called or alternatively called the 'common interest htrine' or "joint prosecution doctrine," that extends tho prot~on oftho
wode product doctrino and attomey-cliem privilege to such information shared between coplaintiffs or other allied partiea.
GENERAL OBJECTIONS
Thc Commonwealth incorporates herein its General Objections set forth in the Commonwealth's Responses to Defendant E*TRADE Access, Inc.'a First Set of Interrogatorics to PlaintiffCommonwealth of Massachusetts.
INTERROGATORIES AND RESPONSES
.lternpRatOry Number 1:
Describe in detail each and every different type or kind ofaccommodation that Plainti1T Commonwealth ofMsssachusetts contends is reasonable, not an undue burden, and would malee an ATM "independcutly usablc" by blind people, as defined in or required by 28 C.P.R. pt. 36 App. A section 4.35 (1992). Oblest!op to Ipterrogatory No. 1:
The Commonwealth objects to this interrogatory to th., extent that it calls for a legal conclusion. The Coinmonwcalth further objects to this interrogatory on the ground that the reasonableness of an accommodation and undue burden are.whcu app1kable, aftlnnative
clerc-, and Defendants have not, to date, identified whiob, ifany, ATMs they contend cannot
reasonably be made independently useable by blind people or cannot be made independently useable without causing an undue burden. Moreover, the IdDcI8 ofaccommodation that will
2

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 13 of 20
make Defendants' varioWl ATMs independently useable by blind pe1"S01IlI,. as well as the
reasonableness and burdensomeness ofthose IICIlOJIIIDOdaI will be the subject ofexpert
testimony by plainlifrs' oxpezts based on infonuation Defendants have not yet provided. which may include, among other things, the precise model, year, operating system and type of each ATM; its rcmaini'18 usefbllife; the available measures to retrofit the ATMs with voice guidallco tocbnoJogy, and the eo8t of doing so, in Iigbt of the model, year, and type ofeach ATM; the IXl6I ofany necessary replacement ATMa under Defendants' C01\IractS with IIlIIIlUfaeI:urers; the reve.nue and profit ae.neratcil by the ATMa and the role and effect of the ATMa in generating revClllUC and goodwill for Defendants' businesses by providing physical touch points for Defendants' wcb-based f1lUll1Cial services; the c:xtcm to which Defendants factored into the purchase price.for tho ATMs their non-compliancc with the Americans with Disabilities Act; the
extent to wbicb Defendants will ~ to upl!J1lde ATMs in the _t Several years to satisfy
regulatory 1lIIIIldates, to become Triple DES compliant, to respond to other cllanges in the industry (e.g., the end ofmM's support ofthe OS/2 opaating system). and to offer advanced functions to customers: and the extent to which the IXl6I ofretrofittiug or replacing ATMs will be oftiec by the Jobs and Growth Tall RelicfRec:oaciliation Act, whicb provides a first..year bollllll depreciation for eertsin upgrades to ATMs. ACWIdingly, Plaintiffs I'CIICI'Ve the rigbt to supplement its answer. Moreover, because diJcloSllnl ofoxpezt reports is not yet due, a t'e$pOIISO to this iDtcrroptory would be premature.
Re!poDse to litermatoa No. NlmI!er Ii
8ubjl:ct to and wiIhont waiving the fOlegoing objectiouB and General ObjectiOIlB, the Commonwealth responds as follows: Plaintiffs contend that voiCe guidance tecImoJogy is the

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 14 of 20
most effective means ofmaking ATMs independeatJy useable by blind people within the meaning of28 C.F.R. pt. 36 App. A section 4.35 (1992), Wbothcr equipping the A1MII at illSUO with voke guidance technology, either by retrofitting them or by replacing them, poses an undue burden must be evalnated individually, and with the ILIIIistarJce ofan expert. with n:spect to Ilaeh ATM, dcpcruling on a number of ~ that Il1'O !IDknown to Plaintiffs given the pnMIlt state of discovery and Defendants' soleposscssion ofrelevant infOrmation (a Objection to Intenogatory No. 1 above). To the extent that equipping or replacing particular ATMs with voice guidance technology oouJd be argued to pose an undoo burden. PJaintiffs will determine, after Defendanb have provided the n!\cvant diS<lOVery, whether then! Il1'O alternative effective ~ that would not poIIe an undue burden. To date, however, Dct1:ndants have not identified specific ATMs that they contend cannot be equipped with voice guidance technology without polling an undlie burden, and the factotII that make itlmrden&oroe or lIIImISOIIIIble to make specific ATMs indcpenII.entI.y useable by the blind. In addition, P1aintifllI do not cmrently have infonnation concerning what if any mcallUlCll DefenilIIDIB have taken with respect to accommodations other than voice: guidance technology and what the actual or projected c:ost of IIIlCb meaames was or is.
AcootdiD&ly. PlaintitIs do not cummtly have the iDformation necossary to respond to this . interroaatory, and PlaintitIs tIlIeI'Ve the right to soppIemem this answer.

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 15 of 20

Dated:

As to objections:

Patricia Correa, BBO # S60437 Auistant Attom~ General One Ashburton Place Boston, MA 02108 (617) 727·2200, x 2919

I, Patricia CQm:a, in my capacity as AuistaDt Atlomey General, state that the foregoing interrogatory response is based upon my personal knowledge, upon infonnation provided to me
byamployccs of the Attorney General's Office and co-counsel. and upon information contained in documents maintsined by the Attorney General's Office. 1fiIrther state that I am authoriud to sign this ~ on bebaIfofAttom~ General Reilly, and while 1do not have personal knowledge ofall the information provided in the answer,·1believe that it is true.

Sworn to under the pains IIIld penidtiea ofperjury '8 III day ofJanuary, 2005.

Patricia Correa

-

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 16 of 20

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 17 of 20

UNITED STATES DISTRICT COURT FOR THE DISTlUCT OF MASSACHUSETTS

. . . . . . . . . .

.~.~

~

~ ... .

COMMONWBALTIl OF MASSACHUSBTIS. NATIONAL FEDERATION OF nIB BLIND, INC., NATIONAL FEDERATION OF nIB BLIND OF MASSACHUSEITS. INC.. ADRlENNE ASeR, .TENNlFBR BOSB, TIlBRBSA JERALDI and
PHILIP OLIVER,

C.A. No.: 03 11206-MEL

Plaintiffs,

v.

E*TRADE ACCESS, INC. and E*TRADB BANK.

. .". .Defendants.

.. . ~

~

.

.

.

.

.

.

.

.

.

.

.

NATIONAL FEDERATION OF THE BLIND, INC'S RESPONSE TO DEFENDANT E"TRADE ACCESS, INC,'S SECOND SET OF INTERROGATORIES TO
PLAINTIFF NATIONAL FEDERATION OF THE BLIND, INC.

In accordance with Fed.. R. Civ. P. 26 and 33. the NFB hereby submits its response to the

Defendant E"TRADE Access, Inc. 's Second Sct ofIntenoptories to PlaJntiff, NFB. The NFB

reserves its right to supplemant ita response.

pEFINlTIONS

1. NFB cefCl'll to the National Fodoratioo ofthe Blind, Inc.

2. Access rerm to defendant E*TRADB Access, Inc.

GENERAL OBJECTIONS

The NFB incorporates hcn:in ita General Objectioos set forth in the NFB's R~nse to

Defmdant B*TRADE Access, Ine.'s Fint Set ofInteltoptories to PlaJntiff, NFB.

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 18 of 20
INTERROGATORIES AND RESPONSES
IDte"","" Number 1; DC6cribe in deWl each and ~ ditl'ercnt type or kind of~on that Plaintiff
National Federation ofthe Blind contends is reasonable, not an undue burden, and would make an ATM "independently usable" by blind people, as defined in or required by 28 C.F.R. pt. 36 App. A section 4.35 (1992). ObJection to Inte!!!!J!tOry No. li
The NFB objects to this inlm'Ogatol}' to the extent that it calls for a legal conclWlion. The NFB further objeets to this i.ntcrrogatol}' on the ground that the reasonableness of an accommodation and undue burden are, when applicable, affirmative defenses and DClfendanls have not, to dalCI, identified which. if' any, ATMs they contend cannot reasonably be made independently usClablc by blind people or cannot be made independently usClabICl without causing an undue burden. Moreover, the.kinds of accommodation that will make Defendants' various ATMa independently uscable by blind persons, as well as the reasonableness and bun:!ensomeness ofthose accommodations, will be the subject of expert testimony by Plaintiffs' experts baaed on information Defendants have not yet provided, which may include, srnong
other things, the precise model, year, operating system and type of each ATM; its remaining
usetillliCe; the availablc measures to retrofit the ATMs with voice pidan.ce technology. and the cost of doing so, in light ofthe model, year, and type ofeach ATM; the cost of any necessary repla=nent ATMs under Defendants' contracts with man~; the I'CV('lIlUC and pre.fit generated by the ATMs and the role and effect of the ATMs in gOllCl'llting revenue and goodwill for Defendants' businC6SCs by providing physical teueh points for Defendants' wc:b-based financial services; the extQlt to which Defendants factored into the purchase price for the ATMa their non-compllancc with the Americans with Disabilities Act; the extent to which Defendants
2

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 19 of 20
will need to upgrade ATMs in the next several years to &atiafy regulatory mandates, to become Triple DES compliant, to respond to other changes in the industry (e.g.• the end oflBM's support
ofthe OS/2 operating system), and to offer advanced timctiOll8 to customers; and the extent to which the cost ofretrofitting or replacing ATMs will be offsc;t by the Jobs and Growth Tax Relief Reconciliation Act, which provides a first-year bonus depreciation for certain upgrades to ATMs. ACCOIdingly. Plaintiffs reserve the right to supplcment its 1IDlIWI!['. Moreover. beGllllStl disclosure of expert reports is not yet due, a respoll8e to this interrogatorY would be premature.
Rapop,eto IpterrogatoryNo. Numbs 1: Subject to and without waiving the foregoing objections and General ObjectiOll8. the
NFB responds as follows: Plainlifiil conteIId that voice pidance technology ill the most effective means ofmaking ATMs independently useable by blind people witbin the meaning of 28 C.F.R. pt. 36 App. A section 4.3S (1992). Whether equipping the ATMs at issue with voice guidance technology. either by retrofitting them or by replacing them, POSCIII an undue burden must be evaluated individually, and with the assistance of an expert, with respect to each A1M, dependi:na on a number of factors that are unknown to Plaintiffs given the present state of discovCfY and Defendants' sole possession ofrelevant information (sec Objection to interrogatorY No.1 above). To the extent that equipping or replacing particulat ATMs with voice guidance technology enuld be argued to pose an undue burden, Plaintiffs will detennine. after Dlilfendants have provided the relevant ctiscoVCfY. whether there arc alternative effe<~tive IIOOOmmodatiOllll that would not pose an undue burden. To date, however, Defendants have not identified specific ATMs that they contend cannot be equipped with voice guidance technology without posing an undue burden, and the factors thaI make it blll:ll.en$ome or unreasonablll to make specific ATMs independently useable by the blind. In addition, Plaintiflll do not curreotly have information conceming what ifany measures Defendants have taken with respect to
3

Case 1:03-cv-11206-NMG Document 139 Filed 06/15/05 Page 20 of 20

accommodatiOllll other than voice guidance tccbnoloiY an4 what the actual or projected cost of such measures was or is.
Accordingly. Plaintiffi; do not currently have the information 1lCCe5S11')' to respond to this interrogatory; and PlaiDtiffi; reserve the right to supplement this &ll8Wcr.
VERIFICATION
I solemnly declare and affirm under the penalties ofpe1jury that the foregoing R.c$ponse to Intmogatories is ttue to the best ofmy knowledge, information, an4 belief.

Dated: January 5. 2oo:l

National Federation oftho Blind By; Marc Maurer. President

Anthony M. Donipr - BBO N . 129420 Cluistine M. Netski - DBO No. 546936 Sugarman, Rosers, Bcnhak 8: Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227·3030 Attomo)'ll for NFB. NFB·Massachusetts
AOOdwJz:.~
Daniel F. Goldstoin Sharon Krevor·Weisbawn Browu, Goldatoin 8: Levy. LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Mary1an4 21202 (410) 962·1030 Attorne)'lI for NFB. NFB-Maasaehusctt8
And the Individual Plaintiffs
4

 
 Case 1:03-cv-11206-NMG Document 142 Filed 06/15/05 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS)

et al.,

)

}

Plaintiffs,

)

)

v.

)

)

E*TRADE ACCESS, INC. et aI.,

)

)

Defendants.

)

)

Case No. 03 11206 MEL

DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION }"OR PARTIAL SUMMARY JUDGMENT
Defendants Cardtronics, LP and Cardtronics, Inc. ("Defendants") n~spectfully

submit that the Court should deny Plaintiffs' Motion for Partial Summary Judgment for

numerous, independent reasons:

First, because Plaintiffs refuse to identify the specitic accommodations they seek,

Plaintiffs fail to prove a prima facie case and they are not entitled to summary judgment. It is

well settled that, under Title III or the Americans with Disabilities Act ("ADA"), 42 U.S.c.

§§ 12181-12189, the Plaintiffs have the affirmative burden of identifying the partic'.Iiar

accommodation they demand. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.

1995); Guckenberger v. Boston Univ., 974 F. Supp. 106, 146 (D. Mass. 1997), quoting Johnson

v. Gambrinus Co., 116 F.3d 1052, 1059 (5th Cir. 1997»; Dahlberg v. Avis Renl A Car Sys., Inc.,

92 F. Supp. 2d 1091, 1105 (D. Colo. 2000). Plaintiffs have never satisfied this burden, despite

numerous opportunities to identify the accommodations they seek, including in responses to

Defendants' discovery requests. They therefore fail to present a prima facie claim under the

ADA and therefore are not entitled to summary judgment.

Case 1:03-cv-11206-NMG Document 142 Filed 06/15/05 Page 2 of 16
Second, Plaintiffs demand an "obey the law" injunction that is strictly prohibited.
Instead of demanding specific actions by the Defendants, Plaintiffs ask for an injunction essentially requiring Defendants to abide by the ADA. It is beyond dispute that any injunction under the ADA must particularly describe the specific accommodations that a defendant must implement. Schmidt v. Lessard, 414 U.S. 473, 476 (1974); Henrietta D. v. Giuliani, 246 F.3d 176, 182 (2d Cir. 2001). Thc generic, non-specific injunction Plaintiffs seek here is barred.
Third, Plaintiffs present no factual basis whatsoever to obtain summary judgment on 25,000 ATMs. To support their request for the nationv.ide, non-specific injunction they demand, Plaintiffs proclaim that they have discovered a variety of alleged problems with exactly 12 ATMs. Plaintiffs have no evidence of systematic problems v.ith the entire fleet of 25,000 ATMs; in fact, the randomness of the minor complaints lodged proves that there was no systematic defect.
These fatal flaws in Plaintiffs' motion demonstrate the futility of this lawsuit. Plaintiffs' primary purpose in filing the lawsuit was to force Defendants to retrofit existing ATMs with "voice technology," which in its February 2005 Order the Court correctly ruled was not required by existing regulations. Forced to change their tactics, Plaintiffs now desire to foist onto the Defendants the obligation to prove compliance with the ADA based on the initial assumption that none of the ATMs comply with the ADA.
The Court should put an end to this futile lawsuil. Concurrently with this Opposition, Defendants are filing a Cross-Motion for Summary Judgment. The Court should grant Defendants' motion and deny Plaintiffs' motion, and enter final judgment in Defendants' favor because Plaintiffs simply have no valid claim under the ADA.
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Case 1:03-cv-11206-NMG Document 142 Filed 06/15/05 Page 3 of 16
RELEVANT BACKGROUND
Defendants are separately submitting a Response to Plaintiffs' Statement of
Undisputed Facts ("Def. Resp. to P!. SUF"), sho\\>lng that Plaintiffs make factual assertions unsupported by the record. 1 Critically, however, Plaintiffs present no evidence regarding
systematic or design defects in Cardtronics's entire fleet of25,000 ATMs - neither direct
evidence about the entire fleet, nor even indirect or summary evidence that would pennit the
Court to draw any permissible inferences about the entire fleet.
Defendant Cardtronics either owns or provides infonnation process services to a
fleet of over 25,000 ATMs nationwide. Plaintiffs apparently visited 12 of these ATMs. PI. SUF 'If~ 9, 13, 17,21. (Actually, Plaintiffs might have visited more than 12 ATMs, but Plaintiffs
provide evidence of alleged inaccessibility of only 12 ATMs - it is entirely likely that Plaintiffs
found other ATMs fully accessible.) Plaintiffs claim these 12 ATMs were not accessible to blind
users, for reasons that varied for each machine:
• Braille keys on three ATMs were allegedly "worn down," "rubbed off' or missing from about half of the keys. Declaration of Sharon Maneki ~~ 4.c & 4.d, attached as PI. Mem. Ex. D ("Mancki Decl."); Declaration of Scott C. LaBarre ~ 7, attached as PI. Mem. Ex. H ("LaBarre Dec!.") (Braille missing from over half of the buttons).
• One ATM's headphone jack was not operating. Declaration of Jennifer Bose ~ 7.g, attached as PI. Mem. Ex. J ("Bose Decl.").
• One ATM was completely nonfunctional. LaBarre Decl. 'If 6.
• Numerous ATMs lacked headphone jacks for voice-enabled technology. Maneki
Dec!. 'Ii 4.g; LaBarre Decl. ~ 5; Bose Dec!. 'If 4.e; Declaration of Anil Lewis ~~ 4.c &
6.c, attached as PI. Mem. Ex. F ("Lewis Ded.'').
Because Plaintiffs have not proven an essential element of their claims, the entirety of their "Statement of Undisputed Facts" is immaterial, because none of those facts, even if true, can change the ultimate conclusion that Plaintiffs do not have a valid claim. See, e.g., Adler v. Waf-Mart Stores, inc., 144 F.3d 664, 670 (lOth Cir. 1998) ("On summary judgment, issues concerning all other elements of the claim become immaterial if the plaintiff does not come forward with sufficient evidence on any essential element of the cause of action.").
-3

Case 1:03-cv-11206-NMG Document 142 Filed 06/15/05 Page 4 of 16
• Braille instructions were not sufficiently detailed on some of the ATMs. Maneki Dec!. 'l~ 3 & 4.f; LaBarre Dec!. ,~ 4 & 5; Bose Dec!. ~~ 4.a-d, 7.a-d, & 9.a-e; Lewis Dec!. '\l4.a-b.
None of these alleged problems even indirectly suggest that other ATMs not visited by the Plaintiffs sutler from the same flaws. Plaintiffs therefore have no evidence of systematic or design flaws with the entire fleet of 25,000 AIMs - in fact, these alleged various problems prove that there is no systematic flaw. For example, Plaintiffs have not identified any design defect in any make or model ATM used in the Defendants' AIM fleet, nor have Plaintiffs submitted any evidence that the problems they found necessarily are occurring at other ATMs; and the fact that Braille keys were "wom down" or "rubbed off' on three AIMs says nothing about Braille keys on other ATMs.2
Notwithstanding a dearth of evidence about the entirety of Defendants' ATM fleet, Plaintiffs demand a broad, nationwide injunction requiring Defendants to make every onc of their ATMs comply with the ADA. The injlUlctive relief Plaintiffs seek would not require Defendants to implement any specific accommodations, nor does it identify any particular ATMs that allegedly fail to meet ADA standards. Instead, Plaintitfs seek the broadest relief possible a blanket, vague injunction essentially requiring that the Defendants comply with the ADA, leaving it to the Defendants to determine in the first instance which ATMs need to be changed and what accommodations are necessary at each of these ATMs.
2 Defendants have not taken the depositions of Plaintiffs' declarants, and therefore Defendants are not yet able to respond to the factual averments of those witnesses. Accordingly, in the event the Court does not dismiss Plaintiffs' motion outright for reasons stated below, Defendants request additional time pursuant to Fed. R. Civ. P. 56(f) to conduct discovery in order to respond to Plaintiffs' factual averments.
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STANDARD OF REVIEW
Plaintiffs seem indifferent to the standard of review for their motion under Fed. R. Civ. P. 56. The Court can grant the motion only if Plaintiffs prove the absence of a triable dispute of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (lst Cir. 2000) ("A party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law."). The Court cannot rely on inferences or speculation as to what facts might exist that could prove Plaintiffs' claims - the Plaintiffs have the burden of providing unrebutted evidence, not bases for speculation. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 251 (1st Cif. 1996) (Court must ignore "conclusory allegations, improbable inferences, and unsupported speculation."). Indeed, contrary to what Plaintiffs suggest, all inferences must be drawn against Plaintiffs. Hunt v. Cromartie, 526 U.S. 54l, 552 (1999) C'[I]n ruling on a motion for summary judgment, the nonmoving party's evidence 'is to be believed, and all justifIable inferences are to be drawn in that party's favor,'" quoting Anderson l'. Liberty Lobby, inc., 477 U.S. 242, 255 (1986)),
ARGUMENT 1. PLAINTIFFS' MOTION SHOULD BE J)ENIEJ) BECAUSE THEY FAIL
TO STATE A PRIMA FACIE CASE UNJ)ER TITLE III OF THE ADA
Plaintiffs have not proven every essential element of their claim, and therefore cannot obtain summary judgment - in fact, because they lack any evidence on all essential element of their ADA claims, summary judgment is appropriate against Plaintiffs. Cefotex Corp, v, Catrett, 477 U.S. 317,322 (1986) (entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."); accord Terry v, Bayer Corp., 145 F.3d 28,34 (Ist Cif. 1998) (to avoid summary judgment, plaintifl' must show
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existence of evidence in support of each element essential to plaintiffs case). Under binding law of this and every other Circuit, the Plaintiffs have the affirmative obligation to identify the reasonable accommodation they allege Defendants are required to provide. Plaintiffs refuse to allege, let alone prove, any facts about specific accommodations they seek, so they have failed to prove a claim under the ADA. Therefore, the Court should deny Plaintiffs' motion for summary judgment.
A. Plaintiffs Have The Affirmative Burden Of Identitying The Accommodation They Seek Under Title III Of The ADA. The First Circuit demands that an ADA plaintiff"bear(] the burden of sho'.';ing
the existence of a reasonable accommodation." Feliciano v. State ofR.I., 160 F.3d 780, 786 (l5t Cir. 1998); accord Garcia-Ayala v. Lederle Parenterals, inc., 212 F.3d 638, 648 (lst Cir. 2000) ("the burden of showing reasonable accommodation is on the plaintiff'). Only if Plaintiffs allege the existence of a reasonable accommodation does the burden shift to Defendants to show the proposed accommodation is unreasonable. Feliciano, 160 F.3d at 786-87; Ward v. Massachusetts Health Research inst., lnc., 209 F.3d 29, 36-37 (1st Cir. 2000) (where plaintiff tirst identified the accommodation, burden shifted to defendant to show it would impose an undue hardship).
Plaintiffs have consistently but wTongly tried to distinguish this First Circuit precedent by arguing that it does not apply to their claim under Title III of the ADA (42 U.S.C. §§ 12181-12189, concerning public accommodations), but only arises under Title I (42 U.S.c. §§ 12111-12117, concerning employment). For example, Plaintiffs have ridiculed their obligation to identify a reasonable accommodation or modification as a "bizarre notion ... that arises in ADA employment cases, but is not part of the jurispmdence of Title III, the public
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accommodations section of the ADA" Plaintiffs' Motion to Compel Further Answers to Their First Set of Interrogatories at 2 n.l ("PI. Mot. to Compel"). Plaintiffs do not cite a single case to support this proposition; the reason is because Plaintiffs are simply 'lVTong.
As in other ADA cases, Title III plaintiffs are absolutely required "to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits." Borkowski, 63 F.3d at 138; accord Guckenberger, 974 F. Supp. at 146 ("In the reasonable modifications context, the plaintiff has the initial burden of proving 'that a modification was requested and that the requested modification is generally reasonable"') (quoting Johnson v. Gambrinus Co, 116 F.3d 1052, 1059 (5th Cir. 1997»; Dahlberg, 92 F. Supp. 2d at 1105 ("[nhe plaintiff in a title III case has the burden of proving that a modification was requested and that the requested modification is reasonable."). It makes perfect sense to apply to Title III claims the standard developed under Title I, because "there appears to be little, if any, substantive difference between the 'reasonable accommodation' which title I requires and
the 'reasonable modification' which title III mandates." Id. at I 105.
The First Circuit is consistent with other courts that require a Title III plaintiff to identify what reasonable accommodation or modification would afford them access. The First Circuit set out the framework for a Title III plaintiff in a retail sales case:
To recover under section 12182(b)(2)(A)(ii) in a retail sale case ... the plaintiff must show that the defendant has a discriminatory policy or practice in effect; that he (the plaintiff) requested a reasonable modification in that policy or practice which, if granted, would have afforded "im access to the desired goods; that the requested modification-or a modification like it-was necessary to afford that access; and that the defendant nonetheless refused to modify the policy or practice.
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Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (ls! Cir. 2003) (emphasis added); see also Goldstein v. Harvard Univ., 77 Fed. Appx. 534, 537 (1st Cir. 2003) ("The operative provision, 42 U.S.C. § 12l82(b)(2)(A)(ii), 'requires a person with a disability to request a reasonable and necessary modification ... "'). These cases make clear that a mere showing of inaccessibility is inadequate to state a claim under Title III.
B. Plaintiffs Have Not Identified Any Specific Accommodation. Because Plaintiffs have never presented any specific accommodation they claim
satisties the ADA (other than voice-enabled technology), they have not proven a valid ADA claim. Their demand for accommodations is always made in the broadest terms, for example: "Defendants must satisfy ADA's new facilities mandate, 42 U.S.C. § 12183(a)(I), and its implementing ADAAG regulation, 28 U.S.C. Part 36 App. A., § 4.34.5, by offering information and instructions to blind customers in a format they can use independently." PI. Mem. at 8.
Besides voice-guidance technology, which the Court dismissed from this lawsuit, the only other specific accommodation the Plaintiffs have ever identified is Braille. Ironically, Plaintiffs' Motion implies that Braille instructions might be a sufficient accommodation, see, e.g.. PI. Mcm. at 5, and the vast majority of the declarations accompanying Plaintiffs' motion address Braille keys and instructions at 12 of the Defendants' ATMs. However, Plaintiffs have previously scoffed at Braille as a reasonable aceommodation - even after the Court recently rejected Plaintiffs' preferred voice-enabled technology. Plaintiffs' Third Amended Complaint outright alleges, "AlthOUgh some E*TRADE and Cardtronics ATMs have Braille keypads and labels, this feature is not an effective accommodation under the ADA." Third Amended Complaint ~ 29. Plaintiffs cannot ask for summary judgment on a theory baldly rejected by their
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o\\<u Complaint.3 If Plaintiffs desire to reverse course almost two years into this litigation and now seek Braille accommodations, they would need to ask for leave to amend their Complaintsomething Plaintiffs plainly refused to do.
Plaintiffs therefore fail to prove all of the elements of their claim, and thus the Plaintiffs are not entitled to summary judgment. II. PLAINTIFFS IMPl<:RMISSIBLY DEMAND A VAGUE,
UNENFORCEABLE "OBEY THE LAW" INJUNCTION Because Plaintiffs refuse to identify a specific accommodation, they ask for a
vague injunction that merely would require Defendants to comply with the ADA for Defendants' thousands of A TMs. The injunction the Plaintiffs seek lacks any detail as to the specific changes Defendants must make, or which ATMs Defendants must change. Indeed, Plaintiffs actually believe that the injunction they seek "need not specify the manner in which the Defendants shall comply with regulation." PI. Mem. at 10 n.13. The PlaintifIs are dead wrong.
Every injunction must be specific as to the acts necessary to comply 'with it. Rule 65 provides that an injunction must "set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained." Fed. R. Civ. P. 65(d). The Supreme Court has repeatedly held that "the specificity provisions of Rule 65(d) are no mere technical
requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a
3 See, e.g., Stefanik v. Friendly Ice Cream Corp., 183 F.R.D. 52, 53-54 (D. Mass. 1998) (on motion for summary judgment, "plaintiff is simply not permitted to offer, without explanation. evidence directly contradicting the allegations of his own complaint .... [P]laintiff is not permitted to kick over the chess board in the face of a checkmate. He is bound by the averments of his pleadings ....").
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decree too vague to be understood." Schmidt v. Lessard, 414 U.S. 473, 476 (1974); see also
Atiyeh v. Capps, 449 U.S. 1312,1316-17 (1981)(same); NBA Props. v. Gold, 895 F.2d 30, 32
(l5t Cir. 1990) (same). Moreover, "basic fairness requires that those enjoined receive explicit
notice of precisely what conduct is outlawed." Schmidt, 414 U.S. at 476.
The type of injunction Plaintiffs desire, whieh basically just orders Defendants to
"obey the ADA," is strictly prohibited:
[A]n "obey the law" order entered in a case arising under statutes so general as the ADA and the Rehabilitation Act would not pass muster under Rule 65(d) of the Federal Rules of Civil Procedure, which requires that injunctions be "specific in terms" and "describe in reasonable detail ... the act or acts sought to be restrained."
Henrietta D. v. Giuliani, 246 F.3d 176, 182 (2d CiT. 2001). Every court other than the Second
Circuit addressing this issue has reached the same conclusion.4
Plaintiffs' demand for an "obey the law" injunction would not end this litigation,
but would prolong it. Plaintiffs would leave it up to Defendants to determine, in the first
instance, which ATMs need to be changed, and how to change them. Having no guidelines
4 Payne v. Travenol Labs.. Inc., 565 F.2d 895, 898 (5th CiT. 1978) (injunction where merely prohibited discrimination was too vague to be enforced; "Such 'obey the law' injunctions cannot be sustained."); Burton v. City o/Belle Glade, 178 F.3d 1175, 1201 (11th Cir. 1999) ("Appellants seek to enjoin the City from discriminating on the basis of race ... As this injunction would do no more than instruct the City to 'obey the law,' we believe that it would not satisfy the specificity requirements of Rule 65(d) and that it would be incapable of enforcement."); Louis W. Epstein Family P'ship v. Kmarl Corp., 13 F.3d 762, 771 (3d Cir. 1994) ("Broad, non-specific language that merely enjoins a party to obey the law ... docs not give the restrained party fair notice of what conduct will risk contempt."); In re Schering-Plough Corp. ERISA Litig., No. Civ. A 03-1204, 2004 WL 1774760, at *11 (D.N.J. June 28, 2004) (holding court lacked authority to enter "blanket injunction" that "would do nothing more than require the defendants to obey the law, something that they are already bound by ERISA to do."); Keyes v. School Dist. No.1, 895 F.2d 659, 668-69 (\ Oth Cir. 1990) (injunction that "defendants are directed to use their expertise and resources to comply with the constitutional requirement of equal education opportunity for all who are entitled to the benefits of public education in Denver, Colorado" did "no more than require the district to obey the law, and therefore must be stricken. ").
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whatsoever from the injunction itself (or even from Plaintiffs' papers, although Rule 65 prohibits use of those documents to interpret the injunction) to determine what ATMs need to be changed or how to change them, Defendants would have no way to predict what conduct would satisfy the injunction, and would face continued objections and arguments from the very litigious NFB and the other Plaintiffs as to whether Defendants were complying \vith it. The Court would not have settled anything with the injunction the Plaintiffs desire but would put Defendants in exactly the quandary the Supreme Court identified in Schmidt.
Ignoring the authority on "obey the law" injunctions, Plaintiffs make the bald assertion that, "Courts ... have repeatedly granted affirmative injunctions ... without specifying the precise steps or methods the defendant should use to comply." PI. Mem. at 2. Plaintiffs support this conclusion with snippets of language fi'om two cases. See id. at 9, cili'lg Independent Living Res. v. Oregon Arena Corp., 982 F. Supp. 698 (D. Ore. 1997) ("ILR") and Anderson v. Rochester-Genessee Reg'[ Transp. Auth., 206 F.R.D. 57 (W.D.N.Y. 2001). Plaintiffs take both cases out of context:
• In ILR, the court issued a decision nearly 100 pages long analyzing myriad technical requirements that the defendant's arena had to address; the court's actual injunction near the end of this opinion was necessarily summary, with the court stating, "The Court will not repeat all of the particulars here." 982 F. Supp. at 785.
• In Anderson - which was reversed in part on appeal, see 337 F.3d 201 (2d Cir. 2003) - the district court's injunction was not just an "obey the law" injunction. Instead, it expressly required defendants to provide precisely the "next-day paratransit service" that the defendant had never before provided, and instead of the court delineating the specific actions defendant had to take, the court required the parties "to attempt to work together to formulate a comprehensive plan." 206 P.R.D. at 71-72.
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Neither case, then, entered a vague, unenforceable "obey the law" injunction that Plaintiffs seek here. Plaintiffs have not cited a single authority supporting their request for an "obey the law" injunction.
Plaintiffs' demand for a vague, undefined "obey the law" injunction highlights the absurdity of Plaintiffs' entire lawsuit. Plaintiffs lack a valid claim under the ADA; the Court should deny their motion and grant Defendants' cross-motion. III. GENUINE DISPUTES OF MATERIAL FACTS PREVENT
SUMMARY JUDGMENT FOR PLAINTIFFS Another independent reason Plaintiffs are not entitled to summary judgment is
because genuine disputes exist on key material facts - including the threshold allegation that Defendants' fleet of over 25,000 ATMs lacks compliance with ADA. At best, Plaintiffs may have provided evidence supporting an injunction concerning no more than 12 ATMs, if the Plaintiffs could identify the specific accommodations they desire.
A. Plaintiffs Have Not Provided Any Evidence That Accommodations Are Necessary }<'or Over 25,000 ATMs. Plaintiffs claim they visited a total of 12 ATMs, out of over 25,000 in Defendants'
fleet. Plaintiffs do not present one shred of evidence that, other than the 12 ATMs they visited, these other tens of thousands of ATMs are inaccessible to blind people. Instead, Plaintiffs infer this critical fact from the evidence they present about 12 particular ATMs. Plaintiffs seem to believe that by shO\ving 12 ATMs arguably do not comply with the ADA, then none of the other ATMs can either. This speculation is precisely forbidden in a Rule 56 motion - arLY inference must be drawn against the Plaintiffs. Hunt v. Cromartie, 526 U.S. 541, 552 (1999), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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Plaintiffs have far more work to do before they could ever prove that the entire ATM fleet is inaccessible to blind people. If not visiting every individual ATM, Plaintiffs at least would have to show some kind of systematic problem persists throughout the fleet, or perhaps that particular ATM makes and models contain invariable design defects. Plaintiffs have not attempted any such showing - but instead they provide evidence showing the problems are random and anything but systematic. For instance, they rely on evidence that the Braille has "worn down" or was "rubbed off" of a few keys on a few ATMs, or that a headphone jack was inoperable on one ATM, or that another ATM was entirely dysfunctional. This anecdotal evidence, even if true, hardly provides the basis for a nationwide injunction for 25,000 ATMs. Instead, Plaintiffs have proven the opposite of what they want the Court to infer; they have proven that each ATM might possibly be inaccessible to a blind person for one of several different reasons, or each ATM might be fully accessible, but the only way to detelmine that is to approach each ATM individually.
Furthermore, Plaintiffs' repeated reliance on evidence about Braille keys is entirely irrelevant to Plaintiffs' claim, because Plaintiffs allege that Braille is always an insufficient accommodation and therefore Plaintiffs are not seeking Braille as an accommodation here. Finally, Plaintiffs' repeated reliance on evidence about voice-enabled technology is irrelevant because the Court dismissed that evidence from the lawsuit in its February 2005 Order. For these reasons, Plaintiffs have not come close to proving the Jack of a genuine dispute about the need for a nationwide injunction affecting 25,000 ATMs.
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Case 1:03-cv-11206-NMG Document 142 Filed 06/15/05 Page 14 of 16
B. Plaintiffs Have Not Proven That Any Accommodations Would Be "Reasonable." Plaintiffs presume, without presenting any facts or making any argument, that
"'reasonable" accommodations exist that would pennit AIMs to be accessible to blind people, or that the modifications they demand in the AIMs would not represent an "undue burden" on Defendants. See 42 U.S.C. §12l82(b)(2)(A)(ii) & (iii) (accommodations not required if modifications are not "reasonable" or if they would result in "undue burden"). The Plaintiffs' assumption, however, is a mouthful. Whether an accommodation is "reasonable" or an "undue burden" depends on factual issues specific not only to the make and model of every ATM, and the age of an AIM, but more generally on economic interests, including whether the cost of accommodations is unduly burdensome given the profitability of the AIMs. See 28 C.F.R. § 36.104 ( "undue burden" means entity would undergo "significant diffieulty or expense"). Obviously, these kinds of thorny technical and financial issues cannot be resolved on summary judgment. Morton v. United Parcel Serv., Inc., 272 F.3d 1249, 1262 (9th CiL 2001) (analysis of
"undue burden" requires "particularized inquiry"); Rennie v. United Parcel Serv., 139 F. Supp.
2d 159, 167-68 (D, Mass. 2001) (explaining that reasonableness of accommodation in ADA cases is nonnally tact question that precludes summary judgment and citing cases). But more importantly, Plaintiffs have not made one effort to show they would prevail on this issue. Plaintiffs instead ignore it as part of their refusal to engage in any discussion about which particular accommodations they desire.
Possibly to avoid this pitfall in their argument, Plaintiffs incorrectly daim that the only defense available to Defendants is whether "unique characteristics of the terrain make it structurally impracticable for [Defendants) to make their AIMs accessible to blind customers." PI. Mem. at 8. Plaintiffs' argument - made without citation to a single case - arises from their
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Case 1:03-cv-11206-NMG Document 142 Filed 06/15/05 Page 15 of 16
mistaken belief that Count V of their Complaint, arising under ADA Title III § 12,183, is somehow different from the typical claim under ADA Title III §12182, The argument is frivolous. First, by its own language, § 12183 merely provides one specific application of the general requirements set forth in Title III § 12182; it is not a stand-alone section unrelated to the requirements in § 12182.' Second, Plaintiffs' semantic distinction has no practical effect as applied to this lawsuit. The injunction Plaintiffs seek ultimately would require physical modifications to Defendants' ATMs, ADA Title III only requires modifications that are "reasonable" or that do not impose "undue burdens." Plaintiffs have not cited a single case that stands for their notion that a defendant can be forced to modifY its facility in order to comply with § 12183 even if the modification is not "reasonable" or even ifit would be an "undue burden."
5 Section 12183 reads: "Except as provided in subsection (b) of this section, as applied to
public accommodations and commercial facilities, discrimination/or the purposes 0/section
12182(a) of this title includes .. , "(listing specific requirements; emphasis added), - 15 -

Case 1:03-cv-11206-NMG Document 142 Filed 06/15/05 Page 16 of 16

CONCLUSION For these reasons, the Court should deny Plaintiffs' Motion for Partial Summary Judgment, but instead should grant Defendants' Cross-Motion for Summary Judgment, and dismiss Plaintiffs' claims with prejudice.

Respectfully submitted,
E*TRADE ACCESS, INC., E*TRADE BANK,
CARDTRONICS, LP AND CARDTRONICS, INC.
By their attorneys,

Dated: June 15, 2005

~B~360
Jenny K. Cooper BBO # 646860 BINGHAM MCCUTCHB< LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000

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 UNITED STATES DISTRICT COURT ,: FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, NATIONAL FEDERATION OF THE BLIND, INC., NATIONAL FEDERATION OF THE BLIND OF MASSACHUSETTS, INC., ADRIENNE ASCH, JENNIFER BOSE, THERESA JERALDI AND PHILIP OLIVER
Plaintiffs

CIVIL ACTION NO. 03-1 I206-MEL

Vo
E’TRADE ACCESS, INC., E’TRADE BANK, CARDTRONICS, LP, and CARDTRONICS, INC.
Defendants
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT PRELIMINARY STATEMENT Defendants have moved for summary judgment on Plaintiffs’ claims under the
Americans with Disabilities Act (ADA), asserting that Plaintiffs have failed to identify
any "specific accommodation" that would make Cardtronics’ ATMs accessible to the
blind. In pursuing this motion, Defendants attempt to avoid the impact of this Court’s
denial of their Motion for Judgment on the Pleadings, in which they argued that the Court
should dismiss Plaintiffs’ ADA claims because Plaintiffs’ pleadings refer to voice
guidaaace as a preferred remedy and, according to Defendants, the applicable ADAAG
does not mandate voice guidance. Relying on the Court’s suggestion, in dictum, that it
cannot order voice guidance as the method of compliance with ADAAG, Defendants now
argue that the Court must dismiss Plaintiffs’ ADA claims because Plaintiffs have not

identified some means of compliance other than voice guidance. This Court has already ruled, however, that "Plaintiffs have put forward a legally sufficient claim that under the existing regulations the Defendants’ ATMs are not accessible to or independently usable by the blind.’’1
Defendants also misstate the applicable law. "Reasonable accommodation" has no relationship whatsoever to Plaintiffs’ causes of action or, for that matter, to Title Ill, the public accommodations section of the ADA.2 A related concept, "reasonable modification," comes into play only in one provision of Title III -- the requirement of reasonable modifications to the practices, policies and procedures of a public accommodation to make the services and goods of that accommodation accessible to persons with disabilities -- invoked by Count II of the Third Amended Complaint ("Complaint").3 "Reasonable modification," like "reasonable accommodation," has no bearing on Counts I, III, IV or V of the Complaint. As explained below, those counts are based on provisions of the ADA as to which the elements of a cause of action do not include reasonable accommodation or modification.
While Count II alleges Defendants’ failure to make reasonable modifications in policies, practices or procedures necessary to afford their services to individuals with disabilities (in violation of 42 U.S.C. § 12182(2)(A)(ii)), it is not incumbent upon Plaintiffs - certainly at this stage of the proceeding - to propose the precise means by which those policies, practices and procedures need to be altered. To the extent that such a showing is required, additional discovery is necessary and the Court should deny
1See Mem. and Order 9, February 22, 2005. 2Montalvo v. Radcliffe, 167 F.3d 873, 876 n.2 (4t~ Cir, 1999) ("Title III ... does not impose a requirement that a place of public accommodation provide a ’reasonable accommodation’ for a disability ..".).. ~Id.

Defendants’ motion as premature. As demonstrated below, except with respect to Count V of Plaintiffs’ Third Amended Complaint, extensive discovery remains to be done concerning the merits of the parties’ claims and defenses.4
ARGUMENT
1. NO ALLEGED FAILURE BY PLAINTIFFS TO IDENTIFY A REASONABLE ACCOMMODATION WARRANTS THE ENTRY OF SUMMARY JUDGMENT. A. The Claims Set Forth in Counts l, III, 1V and V Do Not Require Plaintiffs to Prove a Reasonable Accommodation or Modification. Count I alleges a violation of Title III’s general l~rohibition against discrimination,
42 U.S.C. § 12182(a), which states:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. This provision of the ADA says nothing about "reasonable accommodation" and
Defendants have not cited any case that even suggests that a plaintiff is required to identify an accommodation to establish a violation of this section. Cases
arising under this section do not include reasonable accommodation among its elements.5
Nor does Plaintiffs’ ability to prevail on Count III depend upon specifying a reasonable accommodation. That count alleges that Defendants have failed to
provide auxiliary aids and services to make their ATMs accessible, in violation of 42 U.S.C. § 12182(b)(2)(A)(iii), which provides that discrimination includes
4See Affidavit of Daniel F. Goldstein, Esq., Pursuant to Fed. R. Civ. P. 56(f), attached as Ex. 1. ~See, e.g., Bragdon v. Abbott, 524 U.S. 624 (1998); Boots v. Nw. Mut. Life Ins. Co., 77 F. Supp. 2d 211 (D.N.H. 1999).
3

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage or accommodation being offered or would result in an undue burden.
The operative language under this provision of the ADA is "necessary steps," not
"reasonable accommodations." Again, Defendants have cited no ease law or
implementing regulations that override Congress’ formulation and supplant it with a
requirement that a plaintiff allege a "reasonable accommodation." Instead, cases
analyzing claims under this section require a plaintiff only to prove a denial of service by
virtue of the absence of an auxiliary aid or service, and then place the burden on a
defendant to prove the affirmative defenses of undue burden or fundamental alteration, in accordance with the statutory language.6
Count IV is brought pursuant to 42 U.S.C. §12182(b)(2)(A)(iv), often referred to
as the "existing facilities" mandate, which provides that discrimination includes
a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities...where such removal is readily achievable.
This provision of the ADA applies to any of Defendants’ ATMs that were installed
before January 26, 1993. Again, the legal standard is clear. Modifications to these
machines are required if it is "readily achievable," not if such modifications are
reasonable.7
6Lindgren v. Camphill Vill. Minn., Inc., No. Civ. 00-2271 RItKhRLE, 2002 WL 1332796 at *5 (D. Minn. June 13, 2002) (failure to provide respite care as an auxiliary service that would have allowed continued residence of an autistic man in a group facility); Mayberry v. Von Valtier, 843 F. Supp. 1160 (E. D. Mich. 1994) (auxiliary aids and services for deaf patient of physician). 7Defendants have now indicated in discovery that all Cardtronics ATMs were installed after January 26, 1993 (and thus fail within the new construction mandate rather than the existing facilities mandate). To the extent the case is or becomes otherwise, further discovery is needed. See discussion infra Section II.
4

Finally, Count V invokes the new construction mandate and, as amply
demonstrated in Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for
Partial Summary Judgment, which is incorporated in this argument, the concept of
"reasonable accommodation" also has no bearing on this claim.
In sum, the subchapters of Title III of the ADA upon which Counts I, III, IV and
V are based do not include any language that at all suggests that a plaintiff proceeding
under those provisions is required to prove a reasonable accommodation or modification
to establish liability. And, because the phrase "reasonable modification" does appear in
42 U.S.C. §12182(b)(2)(A)(ii), it must be presumed that Congress did not intend to include this limitation in these other provisions of the statute,s
B. Under Count II, the Court May Order Relief Based Upon Whether It Is Reasonable to Require Defendants to Modify Their Policies, Without Specifying Precisely How Those Policies Shall Be Modified.
In insisting that Plaintiffs have limited their efforts in this case to seeking an order
requiring Defendants to equip their ATMs with voice guidance, Defendants entirely
ignore the nature of Plaintiffs’ allegations in Count II of their Complaint. That count
does not address the retrofitting of ATMs. It is brought pursuant to 42 U.S.C.
§12182(b)(2)(A)(ii), a provision of the ADA which requires the Court to consider, at the appropriate time, directing Defendants to modify illegal policies.9 Specifically, Count II
alleges that Defendants have failed to make reasonable modifications to their policies for
8See Dudley v. Hannaford Bros. Co., 333 F.3d 299,309 (I~t Cir. 2003), quoting Bates" v. United States’, 522 U.S. 23, 29-30 (1997) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."). 942 U.S.C. § 12182(b)(2)(A)(ii) makes illegal "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations."

providing ATM banking services to make those services fully accessible to and independently usable by blind individuals.
For example, because E’TRADE Bank does not operate brick and mortar branches, the only method by which a depositor can withdraw funds from E’TRADE Bank is by the use of an ATM. Thus, Plaintiffs allege that E’TRADE Bank’s policy of offering "fee-free" ATM transactions to its depositors at E’TRADE Financial ATMs, the bulk of which are inaccessible to the blind, is discriminatory and can be reasonably modified. Indeed, prior to filing the present lawsuit, Plaintiffs requested that E’TRADE Bank modify its policies to permit access to its banking services to blind customers.~° In doing so, Plaintiffs satisfied any requirement that they request a reasonable modification.1 t
Contrary to Defendants’ suggestion, the Court can order a defendant to modify its policies to achieve nondiscrimination under this provision without specifying precisely how those policies must be altered, if it is reasonable to make that modification. In Fortyune v. American Multi-Cinema, Inc., 12 a disabled plaintiff pursued a claim under § 12182(b)(2)(A)(ii), seeking to ensure the availability of an adjoining companion seat for his non-disabled wife when they went to the movies. The Ninth Circuit affirmed an order that simply directed the defendant to "modify its policies regarding companion seating to ensure that a companion of a wheelchair-bound patron be given priority in the use of companion seats... [ up until] ten (10) minutes prior to show time." The court rejected the defendant’s assertion that it needed to specify how those policies were to be modified.
~See Demand letter, dated November 20, 2002, attached as Ex. 2. t tSee, e.g., Dudley, 333 F.3d at 299 (finding mentally disabled plaintiff’s request to retailer to deviate from its policy of not reconsidering cashier’s decision not to sell him alcohol to satisfy the requirements of the statute). t~364 F.3d 1075, 1087 (9t~ Cir. 2004).
6

So, too, in this case, if the Court finds that it would be reasonable, for example, for E*TR.ADE Bank to modify its policies to afford blind depositors fee-free transactions at accessible ATMs operated by deployers other than Defendants, it does not need to dictate the details of those policies. Indeed, as argued fully in Plaintiffs’ Memorandum in Reply to Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment, there is nothing in the ADA that prevents a court from entering a performance-based order or that requires a court to write corporate policies.
Nor would ADAAG play any role in the formulation of that relief because cases arising under the reasonable modification of policy mandate do not invoke or involve ADAAG.t3 Indeed, in Fortyune, the defendant argued that it did not need to modify its policy because companion seats were not required by ADAAG. The court firmly rejected that assertion, explaining that ADAAG is to be applied in cases "that involve the design of a public accommodation under the ADA (e.g., a theater’s placement of wheelchair spaces)," but not where policies are at issue. 14
In short, Defendants’ assertion that Plaintiffs have some obligation to identify a "reasonable accommodation" to sustain all of their ADA claims, much less one that comports with ADAAG, has no support and flies in the face of the Court’s ruling that "Plaintiffs have put forward a legally sufficient claim" .... II. DEFENDANTS’ MOTION SHOULD ALSO BE DENIED AS
PREMATURE, PURSUANT TO FED. R. CIV. P. 56(f). In the alternative, the Court should deny Defendants’ motion in accordance with Fed. R. Civ. P. 56(f), which "describes a method of buying time for a party who, when
~3See, e.g., Fortyune, 364 F.3d at 1084-85; Indep. LivingRes., 1 F. Supp. 2d 1159, 1171-72 (D. Or, 1998); Dahlberg v. Avis Rent a Car Sys., lnc., 92 F. Supp. 2d 1091, 1105 (D. Colo. 2000); Johnson v. Gambrinus Co./Spoetzl Brewe~., 116 F.3d 1052, 1059 (9t~ Cir. 1997); Dudley, 333 F.3d at 305. ~4Fortyune, 364 F.3d at 1084-85,
7

confronted by a summary judgment motion, can demonstrate an authentic need for, and an entitlement to, an additional interval in which to marshal facts essential to mount an opposition.’’15 To justify relief under Rule 56(f), the party opposing a motion for summary judgment must demonstrate that it has been diligent in conducting discovery and that it has a plausible basis for believing that facts exist that will influence the outcome of the motion. ~ 6
As detailed in the Affidavit of Daniel F. Goldstein, Esq., Plaintiffs are clearly entitled to relief under Rule 56(1°). From the outset of this case, Plaintiffs have diligently pursued discovery from Defendants. Over a year ago, on June 14, 2004, Plaintiffs filed a Motion to Compel Production of Documents, For a Scheduling Conference Pursuant to Rule 16 and For Judicial Oversight of the Discovery Process in an attempt to address difficulties encountered during the discovery process.17 On September 21, 2004, following the September 13, 2004, hearing on Defendants’ Rule 12(b)(7) Motion to Join Necessary Parties, the Court stayed Plaintiffs’ Motion to Compel pending the completion of Plaintiffs’ deposition of the keeper of records of E’TRADE, Access, Inc.18 On September 24, 2004, the Court denied Defendants’ Rule 12(b)(7) motion. 19
On October 20, 2004, Plaintiffs filed their Proposed Scheduling Plan, in which they set forth a proposed schedule for discovery and also infonrted the Court that their Motion to Compel was ripe for resolution.2° Plaintiffs also reiterated their request that the Court refer discovery issues to a magistrate.2~ On that same date, Defendants also
~SResolution Trust Corp. v. N, Bridge Assoc., inc., 22 F.3d 1198, 1203 (1~ Cir. 1994). ~Ex. 1,¶2. ~8Ex. 1,¶3. t’) Ex. 1,¶3. 2°Ex. 1,¶4. 2~ Ex. 1,¶4.
8

filed a discovery plan, in which they proposed ,phased discovery and expressly
acknowledged that discovery on the merits of Plaintiffs’ claims would be a "massive
effort.’’22 Specifically, Defendants stated as follows:
Plaintiffs will undoubtedly need to take depositions of former and current E’TRADE and Cardtronics personnel. Plaintiffs will need discovery and possibly even expert testimony on what might be extensive financial and business information about E’TRADE and Cardtronics as corporate entities, to determine whether retrofitting the fleet of ATMs is a reasonable or undue burden. It is conceivable that Plaintiffs might also need to take discovery from third parties, including the ATM manufacturers or some of the merchants.23
Defendants also suggested that they were prepared to file a motion for judgment on the
pleadings to dismiss Plaintiffs’ claims under the ADA and that the Court "might also
consider staying discovery pending DOJ’s d. e¯ mslo"~n4 .""
At a conference with the Court on October 26, 2004, the Court set a briefing
schedule for Defendants’ Rule 12(c) motion, but did not establish any schedule for
discovery.25 Nor has the Court ruled on Plaintiffs’ motion to compel production of
documents from E’TRADE Bank and E’TRADE Access, Inc.26
Even though the Court did not establish a discovery schedule, Plaintiffs have
continued in their efforts to conduct written discovery.27 Thus, on October 27, 2004,
Plaintiffs served interrogatories on Defendant, E’TRADE Access, Inc.28 Those
interrogatories requested information relevant to the merits of Plaintiffs’ ADA claims,
including detailed information about Defendant’s fleet of ATMs, detailed information
about Defendant’s contracts with merchants, detailed information concerning efforts by
22 Ex. 1, ¶1 5. 23 Ex. 1, ¶ 5 (emphasis supplied). Z4Ex. 1,¶5. 2SEx. 1,¶6. 2~Ex. 1,¶6.
27Ex. 1,¶7. 2SEx. 1,¶7.
9

Defendant to upgrade and/or retrofit its machines, detailed information about Defendant’s efforts, if any, to comply with existing ADAAG requirements, detailed information concerning the profitability of Defendant’s ATM business and detailed information relating to the issue of whether Defendant is an "operator" of ATMs within the meaning of the ADA.29
Although Defendant E’TRADE Access, Inc. served its answers to Plaintiffs’ interrogatories on December 17, 2004, many of Defendant’s answers were incomplete and/or nonresponsive and, therefore, Plaintiffs’ counset made efforts to discuss these deficiencies with defense counsel.3° Relying on Defendants’ pending Motion for Judgment on the Pleadings, defense counsel declined to participate in a discovery conference.31
On February 22, 2005, the Court denied Defendants’ Rule 12(c) motion and ruled that "Plaintiffs have put forward a legally sufficient claim that under the existing regulations the Defendants’ ATMs are not accessible to or independently usable by the blind.’’32 Shortly thereafter, Plaintiffs filed their Third Amended Complaint, adding Cardtronics, Inc. and Cardtronics, LP as Defendants.33 On April 7, 2005, Plaintiffs served interrogatories, requests for production of documents and requests to admit on the newly-added Defendants]4
Notwithstanding the Court’s denial of Defendants’ Rule 12(c)motion, defense counsel persisted in his refusal to discuss the deficiencies in E’TRADE Access, Inc.’s
~9Ex. 1,¶7. 3°Ex. 1,¶8. ~l Ex. 1,¶8. ~Ex. 1,¶9. 33Ex. 1,¶ 10. 34Ex. 1,¶ 12.
10

answers to plaintiffs’ interrog¯ato3n5es. Therefore, on April 21, 2005, Plaintiffs filed a motion to compel further answers to interrogatories, which is still pending with the Court.36
On May 20, 2005, Cardtronics responded to Private Plaintiffs’ interrogatories, requests for production of documents and requests to admit.3v The interrogatories requested, among other things, detailed information about each Cardtronics ATM, including its serial number, manufacturer and model, location, method of deployment, operating system, processor, income it generated, year of installation and the like.3s Cardtronics promised to supply the information, but has not yet done so.39
Although Plaintiffs have diligently pursued discovery efforts in this case, there is an enormous amount of discovery relating to the merits of Plaintiffs’ ADA claims that remains to be completed,a° More specifically, plaintiffs have not yet had sufficient
opportunity to conduct discovery to obtain evidence concerning issues such as the identification of the ATM’s that are the subject of this lawsuit, the merchant contracts
that are at issue, Defendants’ efforts to make its ATMs accessible to the blind and the costs of those efforts, the potential means for making Defendants’ ATMs accessible to the blind and the cost of those measures, and the economic impact of those measures on Defendants.41 In addition, Plaintiffs’ two separate motions to compel have not yet been addressed by the Court.42 Once these motions are resolved, Plaintiffs intend to depose
3SEx. 1,¶ 13. 3OEx. 1,¶ 13. 37Ex. 1,¶ 14. 3SEx. 1,¶ 14. 39Ex. 1,¶ 14. ~OEx. I,¶16. a~ Ex. 1, ¶ 16. 4aEx. 1,¶ 16.
11

representatives of Defendants and third-party witnesses concerning all of the issues that have been identified in the written discovery requests that have been served thus far.43
To the extent that the ultimate resolution of Count II may require Plaintiffs to propose specific "reasonable modifications" of Defendants’ policies, practices or procedures, there is no question that Plaintiffs have been deprived of the opportunity to conduct meaningful discovery in order to meet this burden. To cite one discrete example, Plaintiffs began to undertake discovery of E’TRADE Bank’s policies and contracts regarding its offer of "fee-free" ATM transactions to its depositors through a request for production of documents. Defendants answered that any responsive documents were produced by E’TRADE Access. The latter, however, produced none. Indeed, Plaintiffs have made E’TRADE Bank’s failure to produce these documents the subject of a pending motion to compel and have chosen to defer serving interrogatories and doing further discovery of E’TRADE Bank’s policies and practices until that motion is decided.44 Only after Plaintiffs have completed discovery should the question come before the Court whether they have material evidence of each element of that claim.
In addition, although Plaintiffs are not required to identify any "reasonable modification" to prevail on Counts I, III and IV, they nevertheless must be given the opportunity to conduct additional discovery in order to establish the elements of those claims. Therefore, under Fed. R. Civ. P. 56(0, Plaintiffs request that this Court delay action on Defendants" motion for summary judgment until factual discovery is completed in this case.
4~ Ex. 1,¶ 16. See Mot. to Compel and accompanying papers, Docket Nos. 54, 55 and 58.
12

CONCLUSION

For these reasons, Plaintiffs request that this Court deny Defendants’ cross-

motion for summary judgment on Plaintiffs’ claims under the Americans with

Disabilities Act or, in the alternative, defer the motion until the completion of discovery,

in accordance with Fed. R. Civ. P. 56(0.

COMMONWEALTH OF MASSACHUSETTS, By its Attorneys,

NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,

Patricia Correa, BBO No. ~60437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919

Anthony M. Donigef, BBO # 129420 Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

Dated: August 5, 2005

Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-t030

13

CERTIFICATE OF SERVICE

I, Christine M. Netski, hereby certify that on August 5, 2005, I served the within document via electronic mail and first-class mail postage prepaid on the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 p atty.correa@ago, state.ma.us Attorney for Plaintiff, Commonwealth of Massachusetts
Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@browngold.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes, Esquire Rachel Splaine Rollins, Esquire Jenny K. Cooper, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 j oe.kociubes@bingham.com rachel.rollins@bingham.com j enny.cooper@bingham.com Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank
Douglas P. Lobel, Esquire David A. Vogel, Esquire Brian Frazier, Esquire Arnold & Porter 1600 Tysons Boulevard Suite 900 McLean, VA 22102 douglas_lobel@aporter.com david_vogel@aporter.com brian_frazier@aporter.com Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank

Christine M. Netski
366047

14

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, NATIONAL FEDERATION OF THE BLIND, INC., NATIONAL FEDERATION OF THE BLIND OF MASSACHUSETTS, INC., ADRIENNE ASCH, JENNIFER BOSE, THERESA JERALDI AND PHILIP OLIVER
Plaintiffs

CIVIL ACTION NO. 03-11206-MEL

E’TRADE ACCESS, INC., E’TRADE BANK, CARDTRONICS, LP, and CARDTRONICS, INC.
Defendants
PLAINTIFFS’ MEMORANDUM IN REPLY TO DEFENDANTS’ OPPOSITION
TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
PRELIMINARY STATEMENT
Plaintiffs have moved for summary judgment on Count V of the Third Amended
Complaint (violation of the ADA’s new construction mandate) as to those Cardtronics-owned
ATMs deployed after January 26, 1993, the applicable date of the Americans with Disabilities
Act Architectural Guidelines ("ADAAG"). In support, Plaintiffs presented evidence from paired
blind and sighted testers showing that none of the ATMs tested offered "instructions and all
information for use" in a format that is "accessible to and independently useable" by the blind, in
violation of 28 C.F.R. Part 26, App. A. § 4.34.5 and the new construction mandate established by
42 U.S.C. § 12183(a)(1) and 28 C.F.R. § 36.406. Cardtronics has not provided any evidence that all its ATMs offer all instructions and
information for use by any means other than text on a screen that must be seen to be understood.

In addition, Cardtronics concedes in its recent discovery responses that all Cardtronics-owned ATMs were deployed after the effective date of the ADAAG, and, except as to any ATMs that may have voice guidance,1 those responses establish that the instructions displayed visually on the screens of these ATMs are neither visible to blind individuals nor COlnmunicated through some nonvisual means. Thus, Plaintiffs are entitled to a determination that Cardtronics has violated the ADA as to all Cardtronics-owned ATMs.
Cardtronics claims that to prevail on Count V, Plaintiffs must state how they could be "reasonably accommodated" or the ATMs "reasonably modified." The ADA’s new construction mandate, however, simply requires the Court to determine whether or not Cardtronics-owned ATMs installed after ADAAG’s effective date meet ADAAG.2 Cardtronics also claims that it needs unspecified discovery from Plaintiffs’ testers; however, it does not, and cannot, point to any facts the testers might supply that would dispute the testers’ findings. Finally, Cardtronics also asserts that an injunction directing it to comply with a specific performance-based ADAAG would be a vague "obey the law" injunction invalid under Fed. R. Civ. P. 65. Because the order sought in this case is clear as to what constitutes a violation, ample precedent supports the Court entering such an order.
No evidence shows that Cardtronics’ ATMs comply with ADAAG § 4.34.5. Accordingly, Cardtronics is in violation of the new construction mandate, and Plaintiffs are entitled to judgment as a matter of law on Count V of the Third Amended Complaint and to an order directing Cardtronics’ compliance.
~ Cardtronics has not claimed that any of its ATMs have voice guidance, other than the ones already the subject of the pre-litigation partial settlement agreement with E’TRADE. However, to the extent that any of its ATMs have voice guidance, no order is sought or needed. See discussion infra Section II(B). 2 Cardtronics does not assert that its compliance was structurally impracticable, the one defense the new construction mandate offers, as detailed in Plaintiffs’ opening brief.

ARGUMENT

I.

PLAINTIFFS HAVE ESTABLISHED CARDTRONICS’ LIABILITY UNDER

COUNT V OF THEIR COMPLAINT.

A. It Is Undisputed That the Fleet of Cardtronics-Owned ATMs Was Deployed After the Effective Date of the ADAAG and Is Not Accessible To And Independently Useable by Blind People.

"Upon a properly supported motion for summary judgment, the opposing party can avoid

summary judgment only by presenting evidence sufficient to establish the existence of a genuine issue of material fact as to each element essential to its [defense].’’3 The evidence proffered by a summary judgment opponent must be admissible.4

1. Cardtronies admits that its fleet of ATMs was deployed after the effective date of the ADAAG.
Plaintiffs filed this Partial Summary Judgment Motion in April 2005. On May 20, 2005,
Cardtronics served on the Plaintiffs certain discovery responses, in those responses Cardtronics
admitted that the Cardtronics fleet of ATMs was deployed after January 26, 1993, the effective date of the ADAAG.5 Thus, all ATMs at issue are subject to ADAAG § 4.34.5.

2. The evidence that Cardtronies’ ATMs fail to offer instructions and all information for use in a format accessible to blind people is undisputed.
That blind people cannot use the many screens of an ATM when the text is only
presented visually is well-documented in the affidavits submitted by Plaintiffs’ testers,
particularly the affidavits of Jennifer Bose and Nicholas Paras that painstakingly review each
screen that arose, the choices offered by that screen and Ms. Bose’s inability to know either the
contents of the screen or the actions necessary to make one of the choices offered.
3 Mattoon v. City of Pittsfield, 980 F.2d 1, 7 (I~t Cir. 1992) (citing Price v. Gen. Motors’ Corp,, 931 F.2d 162, 164 (i~t 4CSirc.h1u9b9er1t)v).. Nissan Motor Corp., 148 F.3d 25, 32 (1~t Cir. 1998). .s See Answer ofDe£ Cardtronics to Private Pls.’ First Reqs. for Adrnis., attached as Ex. 1, No. 4,

Cardtronics has not submitted any evidence to dispute the testers’ findings and concedes that Plaintiffs "have provided evidence supporting an injunction" with respect to the tested ATMs, but claims that Plaintiffs "at least would have to show [that] some kind of systematic problem persists throughout the fleet ,..,.6. Cardtronics’ recent discovery responses conclusively establish, however, that its ATMs suffer the same defects encountered by the testers.
Plaintiffs asked Cardtronics to admit that "[e]ach of Cardtronics’ ATMs, with the exception of those that present information and instructions for use through voice guidance technology, do not have instructions and all information for use accessible to and independently usable by persons with vision impairments.’’7 Cardtronics denied this request, but, when asked in an interrogatory to "state in detail how each instruction and information for use on each screen of a Cardtronics ATM is accessible to and independently usable by a person with vision impairments," admitted that "instructions displayed visually on an ATM display screen may not be visible to a person with vision impairments.’’8
Plaintiffs also requested that Cardtronics "identify all information and instructions for use as they appear on each screen of a Cardtronics ATM and identify all formats in which that information and those instructions are set forth.’’9 In response, Cardtronics only directed the Plaintiffs to its contemporaneous document production as its complete answer. That production included documents depicting the text on the various display screens associated with conducting a transaction on its ATMs.1° Although it produced a CD entitled "Voice Guidance Work Files," consisting of .way files (sound files) of instructions, it did not produce any documents showing
Defs.’ Opp’n. to Pls? Mot. for Partial Suture. J. 12-13. See Ex. 1, Req. No. I. See Answer ofDe£ Cardtronics to Private Pls.’ Interrogs., attached as Ex. 2, No. 4 (emphasis supplied). ~SoeSeeEexE. x2., 2In, tAernrsowge. rNtoo.I2nt(eermropgh. aNsios. s2u;pDpolicesd.)C. ARD000478-CARDO000553, attached as Ex. 3.

that this format is used at any of its ATMs nor did it so claim in its Answer to Interrogatories. ~
Accordingly, the record evidence is that Cardtronics’ ATMs provide the information and
instructions for use contained in screen prompts only in a visual format, and Cardtronics has
conceded the obvious: a person with vision impairments would not be able to see the screens.
Thus, it is evident that the problem encountered by Ms. Bose and the other testers is indeed
endemic to Cardtronics’ entire fleet of ATMs.
Cardtronics also seeks to forestall partial summary judgment by requesting additional
time under Fed. R. Civ. P. 56(f) for discovery, stating that "Defendants have not taken the depositions of Plaintiffs’ [testers].’’13 Cardtronics’ submission falls well short of the Rule 56(1)
standard.
Rule 56(f) requires that a movant specify the facts to be discovered that would create a genuine issue of material fact.~4 Cardtronics does not point to specific facts it has yet to discover
that would prove that its owned ATMs do offer instructions and all information for use in a nonvisual format and so comply with ADAAG § 4.34.5. Thus, it is not entitled to a delay.~5
It is difficult to imagine what facts Cardtronics could elicit in discovery from Plaintiffs’
testers to create a genuine dispute of material fact. With respect to the twelve ATMs at issue,
11 See Affidavit of Daniel F. Goldstein, Esq., attached as Ex. 4. Cardtronics has assumed responsibility for the partial settlement agreement requiring that all ATMs that E’TRADE had owned be equipped with voice guidance. Those ATMs are not part of this suit. ~2 Again, if Cardtronics owns any ATMs with voice guidance, those ATMs would satisfy ADAAG and the Plaintiffs’ Proposed Order would not require any action with respect to those ATMs. See discussion infra Section II(B). Of course, Cardtronics had the opportunity to specify in its interrogatory responses and in its Opposition to t~h3isSemeoDtieofns.t’haOt pitps’onw. ntoedPAlsT.’MMsootf.fefor rinPstarrutciatiloSnsutaunrde.aIJ1. 4in,fno.r2m;asteioenaflosrouDseeifns.a’ nRoens-pvoisnusael ftoormPlast.,’bSuttadteidmneontt. of U14ndMisapsus.teSdc.Fha. cotfsLPauwrsautaAnnt dtoovLeor,caInl cR.uvl.eA5m6..1B,a¶r¶A9s-s2’n4,. 142 F.3d 26, 44 (1st Cir. 1998) (Rule 56(f) "moving papers must contain a proffer which, at a bare minimuin, articulates a plausible basis for the movant’s belief that previously undisclosed or undocumented facts exist, that those facts can be secured by further discovery, and that, if obtained, there is some credible prospect that the new evidence will create a trialworthy issue"); Mattoon, 980 F.2d at 7; Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 987-88 (1st Cir. 1988). 15 See, e.g., Mattoon, 980 F.2d at 7-8 (Rule 56(1) motion denied, and summary judgment against Rule 56(1) movant affirmed, where movant’s papers needed, but failed, to describe a "realistic basis for believing that further discovery would disclose [pertinenfl evidence.")

Cardtronics can visit the ATMs and consult its own documents and employees to determine
whether the ATMs offered the screen prompts the testers described in any non-visual format. In
any event, it has conceded that Plaintiffs "have provided evidence supporting an injunction" as to
those twelve ATMs. 16 With respect to the rest of the Cardtronics fleet, Plaintiffs’ testers would
not have any knowledge, much less relevant testimony, to dispute what Plaintiffs have already
established ttu’ough Cardtronics’ May 2005 discovery responses: the remainder of Cardtronics’
fleet of ATMs fails to offer the instructions and all information for use that appear in visually-
detected screen prompts in any non-visual format. In these circumstances, Rule 56(0 affords Cardtronics no "escape hatch.’’17
B. The Legal Standard Applicable to Plaintiffs’ New Construction Mandate Claim Requires the Court to Determine Only Whether Defendants’ ATMs Comply With ADAAG. 1. An entity violates the new construction mandate of the ADA when it installs a new facility that fails to conform to ADAAG.
Count V asserts that Cardtronics violated the ADA’s new construction mandate. The
applicable statutory provision defines discrimination as
a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter.~8 The regulations "issued under this subchapter" also provide that facilities constructed after
January 26, 1993, "shall comply with the standards for accessible design published as appendix A to this part (ADAAG).’’t9 ADAAG requires, among other things, that an ATM’s "instructions
and all information for use shall be made accessible to and independently usable by persons with
1~ Defs.’ Opp’n. to Pls.’ Mot. for Partial Summ. J. 12. ~7 Paterson-Leitch Co., 840 F.2d at 988. 18 42 U.S.C. § 12183(a)(1)(2005). i, 28 C.F.R. § 36.406(2005)(emphasis supplied).

vision impairments.’’2° Since all Cardtronics-owned ATMs were installed after January 26, 1993, each must comply with ADAAG § 4.34.5 by offering instructions and all information for use in a format that is accessible to and independently useable by blind people.
Although other portions of the ADA require only "reasonable accommodations" or "reasonable modifications" to meet the needs of the disabled,2~ Congress expected entities to make new facilities accessible. It provided only one exception: if the entity could "demonstrate that it is structurally impracticable to meet the requirements" of the applicable regulations.22 This is because requiring prospective compliance with regulations is generally considered reasonable. And the Department of Justice intended to make ADAAG reasonable to "ensure the high level of access contemplated by Congress, consistent with the ADA’s balance between the interests of people with disabilities and the business community.’’~-3
Thus, the new construction mandate requires only that Plaintiffs show that Cardtronics’ ATMs l) were installed after January 26, 1993, and 2) do not comply with ADAAG.
2. To find a violation of the new construction mandate the courts require nothing more than proof that a new facility fails to conform to ADAAG.
When confronted with claims of violations of the new construction mandate, courts have determined liability according to whether or not the facility in question conforms to ADAAG. "Reasonable modification" or "accommodation" have played no part. As the court categorically stated in Schonfeld v. City of Carlsbad,~4 "construction is to be in conformance with the Uniform Federal Accessibility Standards... or with the ADAAG." In Independent Living Resources v.

20 28 C.F.R. § 36.406, App. A § 4.34.5,

21 22

See discussion infra Section IB(3). 42 U.S.C. § 12183(a)(1). As observed

supra

n.2,

Cardtronics

has

not

attempted

to

make

a

showing

of"structural

impracticability." 2~ Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed.

Reg. 35,544 (July 26, 199I) (addressing Section 36.406 Standards for New Construction and Alteration). e4 978 F. Supp, 1329, 1341 (S,D. Cal. 1997).

Oregon Arena,25 the court entered summary judgment for the plaintiffs on a new construction claim and explained that "Congress has mandated that newly constructed facilities must be fully accessible from the start ....The [facilities] must comply with the design Standards." Because "barriers can be avoided at little or no cost" during the construction phase, another court observed, "the provisions applicable to new construction ... do not provide an undue burden defense.’ ,26
So, too, in this Circuit, liability for violation of the new construction mandate arises whenever a facility fails to conform to ADAAG. In United States v. Hoyts Cinemas Corp.,27 the Court considered whether the wheelchair-accessible seats at a number of the defendants’ newlyconstructed movie theaters offered "comparable lines of sight" to standard seats and comprised an "integral part" of the theaters’ "fixed seating plan," in conformity with ADAAG § 4.33.3. The Court looked at viewing angles from the seats in question and where the seats were located within the theaters, and entered summary judgrnent for the government after determining that the lines of sight were not comparable to those offered at standard seats and that the wheelchairaccessible seats were not sufficiently integrated.28 The First Circuit, although ultimately concluding that the District Court had an insufficient evidentiary basis with respect to ADAAG’s integration requirement, also analyzed liability by looking to see only whether there had been ADAAG compliance.29
Thus, the relevant case law follows the statutory and regulatory language of the new construction mandate, and teaches that to establish Cardtronics’ liability for violation of the new
25 982 F. Supp. 698, 764 (D. Or. 1997). 26 Anderson v. Dept, of Pub. Welfare, 1 F. Supp. 2d 456, 464 (E.D. Pa. 1998) (quoting Kinney v. Yerusatirn, 9 F.3d 217062576, 1F0. 7S1up(p3.d2Cd i7r3, 1(D99. M3)a).ss. 2003), aff’d in part, rev’d in part, 380 F.3d 558 (1st Cir. 2004). 28 ld. at 84-93. 29 380 F.3d at 561-62.

construction mandate, Plaintiffs need only show that (1) the Cardtronics-owned ATMs were
deployed after January 26, 1993, and (2) they fail to conform with the ADAAG.
3. "Reasonable accommodation" or "reasonable modification" are not elements of a claim or defense under the new construction mandate.
Cardtronics insists that under the new construction mandate, Plaintiffs must also identify
a reasonable accommodation or a reasonable modification. Neither the statute nor the regulation
applicable to the new construction mandate, however, contains this exculpatory provision and the
cases discussing the new construction mandate do not engraft such a provision. Indeed, the court in Independent Living Resources v. Oregon Arena3° observed that it: could simply order the
demolition of a noncompliant stadium built after the enactment of the ADA for noncompliance
with the new construction mandate.
Cardtronics makes no effort at statutory construction to support its claim. Indeed, no
reasonable reading of the new construction mandate would support importing the requirement of
reasonable accommodation. Instead, Cardtronics relies exclusively on cases that do not discuss
the new construction mandate at all. Most interpret a provision of Title Ill of the ADA that
governs a public accommodation’s policies and procedures - a provision that is entirely
inapplicable to the present motion. That part of the statute defines discrimination as
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.3~ Cardtronics unjustifiably relies on cases interpreting the reasonable modification to
policy mandate to support its assertion that "it is well settled" under the new construction
30 1 F. Supp. 2d 1159, 1165. ~1 42 U.S.C. § I2182(2)(A)(ii) (emphasis supplied) (the "reasonable modification to policy mandate").

mandate that Plaintiffs must identify a specific "reasonable accommodation" or "reasonable modification" to prevail.32 Indeed, the cases it cites make no attempt whatsoever to construe or

interpret the new construction mandate and do not involve compliance with ADAAG. See, e.g., Dudley v. Hannaford Bros. Co.33 (addressing the discriminatory impact of a retailer’s liquor sales policy); Goldstein v. Harvard Univ.3~ (a student who needed to reschedule an examination for

outside of "asthma" season was required to have put the university on notice that a disability interfered with her ability to take a regularly-scheduled examination); Johnson v. Gambrinus Co./Spoetzl Brewery35 (addressing modifications to a brewery’s "no animals" tour policy for patrons who use service animals); Guckenberger v. Boston Utliv.36 (addressing modification to

college’s policies to accommodate students with ADHD); Dahlberg v. Avis Rent a Car Sys., Inc.37 (addressing discrimination in defendant’s reservation system’s policies).3~

It is not surprising that in suits arising under the reasonable modification to policy mandate, some courts have required plaintiffs to specify what reasonable modifications to the entity’s policies they need.39 Given the enormous and varied universe of types of places of

public accommodation, the goods and services they offer, the policies, practices, and procedures

3zDefs.’ Opp’n. to Pls.’ Mot. for Partial Summ. J. 1.

33 333 F.3d 299 (1st Cir. 2003).

34 35 36

77 Fed. Appx. 534, 53,7~1st Cir. 2003). 116 F.3d 1052, 1059 (9 Cir. 1997). 974 F. Supp. 106, 145 (D. Mass. I997).

3792 F. Supp. 2d 109I, 1 I05 (D. Colo. 2000).

~8 The remaining cases Cardtronics cites are employment cases that address "reasonable accommodation" under

provisions of Title I of the ADA and the regulations of the Rehabilitation Act that define discrimination as a failure to provide a "reasonable accommodation." See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1 ~t Cir. 2000); Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 36-37 (1~ Cir. 2000); Feliciano v. State of RL, 160 F.3d 780, 786 (lst Cir. 1998); Borkowski v. Valley Cent. Sch. Dist., 63 F,3d 131,136 (2d Cir. 1995). They do

not involve a public accommodation, the new construction mandate, ADAAG compliance or any aspect of Title Ill

of the ADA. There is no section, paragraph or sentence of any of those opinions that states, suggests or implies that

t~h9eCFoirusnt tCIiIrcoufiPt hlaaisntriefafsd’aT"hrieradsAonmabelnedmedoCdiofimcaptliaoinn"t aqlulaelgiefiscaatvioionliantitoonthoef ntheewAcDonAst’rsurcetaiosnonmabanledamteo.dification

mandate. Pursuant to that Count, Plaintiffs will seek changes, for example, in the practices of E’TRADE Bank, a public accommodation which affords banking services on a discriminatory basis, If and when Plaintiffs bring such
matters before the Court, it will have to consider whether it is reasonable to require the Bank to modify its policies. However, given Plaintiffs’ utter inability to make any headway in discovery, Plaintiffs have not sought to move for summary judgment on that count.

10

they employ, and human disabilities (some of which are visible and obvious, some of which are
not), Congress chose, through the general terms of the reasonable modification to policy
mandate, to order places of public accommodation to be flexible so that customers with
disabilities could have equal enjoyment of the goods and services they offer. The alternative
available to Congress and DOJ would have amounted to an unworkable - and, in the end,
ineffective -- attempt to erect a vast regulatory scheme to regulate impossible-to-anticipate
minutiae of varied business practices by varied types of businesses faced with serving disabled
customers with varied and individualized needs.
In enacting the new construction mandate, Congress sought to ensure that new facilities
are constructed to afford access to people with disabilities. It did so by requiring that new
facilities conform to design specifications that would assure access to people with disabilities.
Once a business has complied with the design principles of ADAAG, the reasonable
modification of policies mandate prohibits it from erecting barriers to people with disabilities through discriminatory prac¯ttce4s0.
In sum:
1. The legal standard applicable to cases under the new construction mandate requires that courts simply determine whether a new facility conforms to the architectural specifications of ADAAG.
2. Neither the new construction mandate nor its implementing regulations mention "reasonable modifications" or "accommodations."
3. Courts, in the First Circuit and elsewhere, analyze cases arising under the new construction mandate without reference to any purported requirement that a plaintiff must show a "reasonable accommodation" or "modification."
4. The reasonable modification to policy mandate set forth in a different section of Title III of the ADA does not address the design of facilities, is not governed by ADAAG, and is not the basis for Plaintiffs’ Motion for Partial Summary Judgment.
4o Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1084-85 (9th Cir. 2004); Ind. LivingRes., 1 F. Supp. 2d at 1171-72.
11

5. Cases analyzing the reasonable modification to policy mandate of Title III of the ADA have never suggested, intimated or supposed that this explicitly stated statutory requirement applicable to an entity’s policies be applied, imported or utilized in determining the entity’s legal responsibilities under the new construction mandate.
Cardtronics’ contention that Plaintiffs must identify a "reasonable accommodation" or "reasonable modification" to prevail on their new construction mandate claim is simply not warranted under existing law.
II. PLAINTIFFS ARE ENTITLED TO EFFECTIVE RELIEF. A. The Court May Issue An Injunction Requiring The Defendants To Comply With ADAAG § 4.34.5. The ADAAG guaranteeing the blind access to ATMs states a clear, concise performance
standard: an ATM satisfies ADAAG if all information and instructions for use are independently accessible and useable by the blind. ADAAG does not specify a particular means for compliance. Thus, to remedy Cardtronics’ clear violation of the new construction mandate, Plaintiffs seek an injunction ordering Cardtronics to "take immediate action to insure that all ATMs they own and that were installed at their various locations after January 26, 1993, . . . have information and instructions for use that are accessible to and independently usable by the blind.’~;l
Again, attempting to rely on inapplicable cases from an entirely different context, Defendants assert that Plaintiffs’ request for an injunction ordering Cardtronics to comply with the ADAAG is a "vague, unenforceable ’obey the law’ injunction.’’42 Indeed, Cardtronics categorically and incorrectly asserts that injunctions that order law breakers to obey the law are always invalid.43
Proposed Order, attached to Pls.’ Mot. for Suture. J., Docket No. 27. Defs.’ Opp’n. 9. [d. at 9-I0.
12

The Ninth Circuit rejected the precise arguments advanced by Cardtronics in upholding an injunction directing the defendant to satisfy a particular performance goal that did not specify the means to achieve that goal. The court in Fortyune v. American Multi-Cinema, Inc.44 upheld an order directing the defendant movie theater to "modify its policies regarding companion seating to ensure that a companion of a wheelchair-bound patron be given priority in the use of companion seats... [up until] ten (10) minutes prior to show time.’’~5 To be lawful, the court stated, the injunction need not "provide AMC with explicit instructions on the appropriate means to accomplish this directive.’’46 Rule 65(d), the court explained, only requires specificity in the act or acts sought to be restrained. Similarly, in this case, Plaintiffs seek an order specifically requiring that information or instructions for use that are presented visually also be presented in a format that is independently accessible to and usable by the blind.
Courts do indeed issue injunctions merely tracking the language of a statute or regulation. For example, in McComb, Wage and Hour Adm ’r v. Jacksonville Paper Co.,aT the Supreme Court upheld an injunction that ordered law breakers to obey specific Fair Labor Standards Act provisions. In Taylor Wine Co. v. Bully Hill Vineyards, Inc.,,48 the Second Circuit affirmed an injunction prohibiting defendant from "[o]therwise engaging in any act of unfair competition against the Taylor Wine Co., Inc. or trading upon its goodwill." And in Securities and Exchange Comm ’n v. Manor Nursing Ctrs., Inc.,49 it approved an injunction that "framed the order in language virtually identical to that of Rule 10b-5."

44364 F.3d at 1075.

45 4o

Id. [d.

at

1087.

47336 U.S. 192 (1949),

~ 590 F,2d 701 (2d Cir. 1978). 4~ 458 F.2d 1082, 1103 (2d Cir. 1972).

13

An "obey the law" injunction is particularly appropriate where the taw is specific about what a party is required to do. In United States v. Miller,5° the Interstate Commerce Commission (ICC) won an injunction against several defendants from transporting property for compensation on public highways without obtaining the ICC’s authorization. In rejecting a defendant’s assertion that the injunction merely tracked the language of the Interstate Commerce Act and thus was too vague, the court stated
[T]hat the injunction is framed in language almost identical to the statutory mandate does not make the language vague. In this situation the statutory terms adequately describe the impermissible conduct.5~ Similarly, Plaintiffs seek an order directing Cardtronics to comply with a clear and specific performance standard applicable to its ATMs: that it offer "instructions and all information for use" in an accessible, or non-visual, format for the benefit of blind consumers. That standard merely requires Cardtronics to identify the "instructions and all information for use" offered at its ATMs, determine whether they are communicated through any sense other than sight, and translate them into a non-visual format. As the First Circuit has observed, Rule 65 does not "require that an [injunctive] order list the components of ... [terms.] whose boundaries are understood by common parlance."52 By contrast, the cases on which Cardtronics relies involve "obey the law" injunctions where the laws at issue were themselves general in nature.53 For example, in Henrietta D. v. Giuliani,54 a class action challenging New York City’s delivery of public health and public assistance benefits to city residents with HIV and AIDS, the court noted that an injunction ordering the defendants to "meet their obligations" under the ADA and Rehabilitation Act would
S.~so]d"588 F.2d 1256, 1261 (9t~ Cir. 1978). sz United States v. Prof7 Air Traffic Controllers, 678 F.2d 1, 3 (1~ Cir. 1982). .s~ Defs.’ Opp’n. 10-11. ~4 246 F.3d 176, 182 (2d Cir. 2001).
14

not have been sufficiently specific under Fed. R. Civ. P. 65. In Payne v. Travenol Lab., h~c.,55 a general injunction prohibiting "employment discrimination on the basis of ’color, race or sex’" was held to lack sufficient specificity. Burton v. City of Belle Glade,5~ a Voting Rights Act case, rejected as vague an injunction prohibiting the defendant from violating that statute in its future "annexation decisions." Indeed, Burton expressly acknowledged that so-called "obey the law" injunctions are not categorically inappropriate, and cited Sterling Drug v. Bayer AG 5v as an example of the validity of such injunctions where "the context clarifies the scope of the injunction.’’Ss
Particularly because this Court has ample authority to enter an injunction in the form requested by Plaintiffs, this Court can and should issue an injunction directing compliance with the applicable ADAAG, but leaving open to Cardtronics the method by which it should comply.59

~5556751167458FFF.3..23ddd781391357,,587,941882(0(512tdh(1CC1itirhr..

1978), Cir. 1999). 1994).

58 Indeed, Cardtronics’ logic would create a "Catch-22" in which the Court cannot specify relief not found in

ADAAG and ADAAG does not sufficiently specify relief. In its Rule 12(c) motion, Cardtronics told the Court that

it could not order specific actions not articulated in ADAAG to remedy past violations of that ADAAG, Mere. and

Order 4, Feb. 22, 2005. Now, Cardtronics argues that an injunction that tracks the language of the ADAAG and

does not order specific actions is an unenforceable "obey the law" injunction. Defs.’ Opp’n. to Pls.’ Mot. for Partial

Suture. J. 9-I2. 59 The Court could also reconsider its dictum of February 22, 2005, to craft relief that maps out a method for

compliance. United States v. Nat’lAmusements, 180 F. Supp.2d 251 (D. Mass. 200t), on which the Court relied in
its February 22, 2005, Memorandum and Order, holds that a defendant who has complied with ADAAG cannot also be held liable for violating the general discrimination prohibition of Title III. It did not address the eqmtabte authority of the court to fashion injunctive relief to remedy existing or past violations of ADAAG. It is well settled that a court, having found a violation, has broad discretion in formulating injunctive relief. See Boston Chapter.
NAACP, Inc. v. Beecher, 371 F. Supp. 507 (D. Mass. 1974) and cases cited, indeed, the First Circuit remanded Hoyts Cinemas Corp, for the court to develop criteria, not contained in ADAAG, for what constituted comparable lines of sight.

15

B. That Only Twelve ATMs Were Tested Is Not a Barrier to Plaintiffs’ Request for Relief.

Because Cardtronics-owned machines were installed after January 26, 1993 and blind

persons cannot independently use them, Plaintiffs are unquestionably entitled to declaratory

relief that declares that all such ATMs violate the ADA’s new construction mandate.

In addition, given that there is no dispute that Cardtronics’ ATMs do not comply with

ADAAG § 4.34.5, Plaintiffs are entitled to entry of the Proposed Order of injunctive relief,

directing Cardtronics to "take immediate action to insure that all ATMs they own and that were

installed at their various locations after January 26, 1993...have information and instructions for

use that are acceptable to and independently usable by the blind." To the extent that any of the

Cardtronics-owned machines are equipped with voice guidance, the Proposed Order would not

require Cardtronics to take any action as to those machines.

CONCLUSION

For all of the foregoing reasons, Plaintiffs request this Court to grant Plaintiffs Motion for

Partial Summary Judgment on Count V of the Third Amended Complaint with respect to

Cardtronics-owned ATMs.

COMMONWEALTH OF MASSACHUSETTS, By its Attorneys,

NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,

. ~,~ ~. .~,~’ ~
Patricia Correa, BBO No. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General
One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919

Anthony M. Domger, BBO # 129420 Christine M. Netski, BBO No. 546936 Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

16

Dated: August 5, 2005

Daniel F. Goldstein Sharon Krevor-Weisbaum Brown., Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030

17

CERTIFICATE OF SERVICE

[, Christine M. Netski, hereby certify that on August 5, 2005, I served the within document via electronic mail and first-class mail postage prepaid on the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 patty.correa@ago.state.ma.us Attorney for Plaintiff, Commonwealth of Massachusetts
Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@browngold.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes, Esquire Rachel Splaine Rollins, Esquire Jenny K. Cooper, Esquire Bingham MeCutchen, LLP 150 Federal Street Boston, MA 02110 j oe.kociubes@bingham.com rachel.rollins@bingham.com j enny.cooper@bingham.com Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank
Douglas P. Lobel, Esquire David A. Vogel, Esquire Brian Frazier, Esquire Arnold & Porter 1600 Tysons Boulevard Suite 900 McLean, VA 22102 douglas_lobel@aporter.com david_vogel@aporter.com brian_frazier@aporter, corn Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank

Christine M. Netski

366093
18

 
 Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

_________________________________________

)

COMMONWEALTH OF MASSACHUSETTS )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

E*TRADE ACCESS, INC. et al.,

)

)

Defendants.

)

__________________________________________)

Case No. 03 11206 MEL

REPLY BRIEF IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT

Respectfully submitted,
E*TRADE ACCESS, INC., E*TRADE BANK, CARDTRONICS, LP AND CARDTRONICS, INC.
By their attorneys,
Joseph L. Kociubes BBO # 276360 Jenny K. Cooper BBO # 646860 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 720-7000

Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 2 of 32
TABLE OF CONTENTS
I. PLAINTIFFS CANNOT AVOID SUMMARY JUDGMENT UNDER RULE 56 BY INVOKING THE COURT’S PREVIOUS ORDER UNDER RULE 12 ..............................................................................................................................3
II. PLAINTIFFS HAVE NOT SHOWN ADA § 12183(a)(1) APPLIES TO ATMS, SO DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON COUNT V...............................................................................................4
A. The Plain Language Of § 12183 Makes Clear That It Does Not Cover ATM Accessibility. .......................................................................................4
B. The Implementing Regulations Prove That § 12183 Does Not Cover ATMs. ...........................................................................................................5
C. The Legislative History Of § 12183 Proves It Covers Only Buildings, Not Devices That Might Be Attached To Buildings Like ATMs. ......................................................................................................................6
D. Every Case To Apply § 12183 Proves That It Covers Only The Design Of Buildings, Not The Design Of Devices Like ATMs. .............................7
E. Plaintiffs Offer No Support That The Term “Facility” In § 12183 Includes Devices Like ATMs. .................................................................................8
III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ FOUR ADDITIONAL COUNTS UNDER ADA § 12182 .........................9
A. Count III, ADA § 12182(b)(2)(A)(iii) (Failure To Provide Auxiliary Aids). .....................................................................................................10
B. Count IV, ADA § 12182(b)(2)(A)(iv) (Failure To Remove Architectural Barriers Or Structural Communication Barriers).............................12
C. Count II, ADA § 12182(b)(2)(A)(ii) (Modification of Policies). ..........................14
1. Plaintiffs Effectively Admit They Have No Claim Under This Subsection Against Defendant Cardtronics. ......................................15
2. Plaintiffs Ignore The Burden Imposed By Controlling And Persuasive Authorities. ..............................................................................16
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Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 3 of 32
3. Plaintiffs Have Not Met Their Burden To Produce Evidence That E*TRADE Bank Can Reasonably Modify Its Policies, Practices, Or Procedures. .......................................................18
D. Because Defendants Are Entitled To Summary Judgment On All Counts Under § 12182(b), Defendants Are Also Entitled To Summary Judgment On Plaintiffs’ Count I Under § 12182(a). .............................20
IV. PLAINTIFFS HAVE NOT OFFERED SUFFICIENT EVIDENCE TO PREVAIL ON SUMMARY JUDGMENT........................................................................22
V. PLAINTIFFS ARE SEEKING A PROHIBITED “OBEY THE LAW” INJUNCTION, BECAUSE DEFENDANTS HAVE NO GUIDANCE WITH RESPECT TO HOW TO OBEY IT .......................................................................24
VI. PLAINTIFFS’ REQUEST FOR ADDITIONAL DISCOVERY IS A RUSE TO AVOID SUMMARY JUDGMENT.................................................................26
VII. CONCLUSION..................................................................................................................27

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Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 4 of 32
Repeatedly pressed to describe how Defendants should modify their ATMs to make them comply with the ADA, Plaintiffs never respond. Instead, Plaintiffs misconstrue the ADA, ignore a wealth of precedent, misstate their burdens, and assert factual conclusions either unsupported by evidence or facially unreasonable. The record shows that Plaintiffs have not produced evidence to support a prima facie ADA claim; as a result, Defendants are entitled to summary judgment on all counts.
First, Plaintiffs have failed to establish that their claims about ATMs even fall within the scope of two of the ADA sections they rely upon. Plaintiffs cannot get partial summary judgment under ADA § 12183(a) (Count V) because the language of the statute, the implementing regulations, the legislative history, and every case decided under it make clear that this section applies only to the design and construction of buildings and facilities of occupancy, not to equipment like ATMs. Similarly, Plaintiffs have not articulated any viable theory under the general ADA provision in § 12182(a) (Count I), because regulations and Supreme Court precedent require Plaintiffs to raise claims under the more specific provisions of ADA § 12182(b) (Counts II through IV).
Second, Plaintiffs have failed to satisfy their burdens under the ADA and Rule 56. Defendants argued in their initial brief that Plaintiffs have failed to identify the “accommodation” they seek, i.e., to identify how Defendants must modify their ATMs to comply with the ADA. Plaintiffs play word games by arguing that none of the ADA sections at issue use the term “accommodation,” but every relevant ADA section imposes a similar burden on Plaintiffs to identify: a “reasonable modification” to policies or procedures (Count II, under § 12182(b)(2)(A)(ii)); “necessary steps” to “remedy” the “absence of an auxiliary aid” (Count III, under § 12182(b)(2)(A)(iii)); or how Defendants can “readily” “remove” alleged “structural

Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 5 of 32

barriers” (Count IV, under § 12182(b)(2)(A)(iv)). Because Plaintiffs offer no evidence to meet any of these standards, they have not met their burden under the ADA and Rule 56, and Defendants are entitled to summary judgment.
In their Opposition, Plaintiffs repeatedly contest what their burdens are. In fact, Plaintiffs’ burdens are plainly set forth in the ADA and case law, and just as plainly have not been met:

COUNT I
II

SUBSECTION OF ADA
12182(a)

UNDER STATUTE, PLAINTIFF MUST: Identify discrimination by a public accommodation not defined by subsection 12182(b)

Identify reasonable 12182(b)(2)(a)(ii) modifications to policies,
practices or procedures

Identify steps necessary to

III

12182(b)(2)(a)(iii) remedy the absence of

auxiliary aids

Identify how removal of

IV

12182(b)(2)(a)(iv) structural barriers is readily

achievable

Identify failures in the design

and construction of “facilities

V

12183(a)(1) for first occupancy,” except

where it is structurally

impracticable

1 See Section III(D), at 20-22. 2 See Section III(C), at 14-20. 3 See Section III(A), at 10-12. 4 See Section III(B), at 12-14. 5 See Section II, at 4-9.

PLAINTIFFS’ BURDEN OF PROOF
NOT MET - because specific provisions of 12182(b) control over general rule of 12182(a) (28 C.F.R. 36.213; Martin)1
NOT MET - because Plaintiffs have not identified evidence of any reasonable modification to Defendants’ policies (Johnson; Dudley)2
NOT MET - because Plaintiffs have not identified the necessary steps or the absent auxiliary aid (Lindgren)3
NOT MET - because Plaintiffs have not suggested a method of barrier removal or proffered evidence that the method is readily achievable (Hermanson; Brother)4
NOT MET - because this section only governs the design and construction of buildings themselves, not equipment that might be installed in buildings (28 C.F.R. § 36.401; CCDC)5

741648_5.DOC

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Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 6 of 32
I. PLAINTIFFS CANNOT AVOID SUMMARY JUDGMENT UNDER RULE 56 BY INVOKING THE COURT’S PREVIOUS ORDER UNDER RULE 12 Plaintiffs repeatedly but wrongly claim that Defendants’ Cross-Motion for
Summary Judgment was already resolved in the Court’s February 22, 2005, Order ruling that the ADA does not require voice guidance technology. See Pl. Opp. at 2. Plaintiffs confuse two different standards of review. The Court’s February Order examined the sufficiency of the Complaint under the liberal Rule 12 standard; Defendants’ Motion under Rule 56 requires Plaintiffs to set forth admissible evidence supporting every element of their claims. The Court’s Order addressing Plaintiffs’ pleading does not excuse their failure to satisfy their evidentiary burden on summary judgment.
Ironically, while Plaintiffs embrace part of the Court’s Order, they call the Court’s ruling that the ADA does not require voice technology a “suggestion, in dicta,” Pl. Opp. at 1. Since that Order was issued, Plaintiffs have not identified any other change they want made to Defendants’ ATMs. Realistically, the ATM industry has only two plausible alternatives to make ATMs accessible to blind people: Braille (an option Plaintiffs entirely reject in their Complaint) and voice technology (an option not required by the ADA). Plaintiffs remain silent about what alternative they wish Defendants to employ, pretending that they are giving Defendants “flexibility,” see Plaintiffs’ Memorandum in Reply to Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment (“Pl. Reply”) at 15, but knowing full well that Defendants would have no other alternative but to use voice technology. Plaintiffs thus seek to achieve indirectly the very result this Court “suggested” is not available to them by doing an end-run around this Court’s February Order.

741648_5.DOC

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Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 7 of 32
II. PLAINTIFFS HAVE NOT SHOWN ADA § 12183(a)(1) APPLIES TO ATMS, SO DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON COUNT V Not only have Plaintiffs failed to prove they are entitled to summary judgment on
Count V under ADA § 12183(a)(1) (which Plaintiffs call the “new construction mandate”), but Plaintiffs have failed to establish a prima facie claim: that ADA section has no application
whatsoever to claims involving ATMs. The plain language of the section, the implementing regulations, the statute’s legislative history, and every case ever interpreting § 12183(a)(1) confirms this. Plaintiffs have not and cannot cite a single case showing they can maintain a
claim for ATMs under § 12183(a)(1); in fact, the case of Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d 707 (D. Colo. 2004) (“CCDC”), painstakingly analyzes why § 12183(a)(1) does not apply to claims such as those Plaintiffs raise here.
A. The Plain Language Of § 12183 Makes Clear That It Does Not Cover ATM Accessibility. To avoid Defendants’ argument that their ADA claims require Plaintiffs to
identify the accommodation they desire, Plaintiffs simply assert that a claim under ADA § 12183(a)(1) imposes different (and broader) requirements than § 12182. Pl. Opp. at 5. Section 12183(a)(1) is indeed different -- it does not apply to ATMs at all -- because it concerns only the construction of buildings and other facilities for occupancy, not devices that might later be affixed to them. This limitation on § 12183(a)(1) is obvious from its plain language:
[A]pplied to public accommodations and commercial facilities, discrimination for purposes of section 12182(a) of this title includes . . . a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection.

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42 U.S.C. § 12183(a)(1). An ATM is not “constructed” (it is manufactured) and it is not
“occupied” (it is used). A plain reading of this statutory language shows that this section is inapplicable to ATMs.6
B. The Implementing Regulations Prove That § 12183 Does Not Cover ATMs. The Department of Justice’s regulations implementing § 12183 (to which this
Court should afford Chevron-type deference)7 prove that § 12183 does not cover ATMs. The
regulations interpret “facility” to mean only buildings -- not devices like ATMs. This is made
clear from several aspects of the regulations:
“Date of First Occupancy.” The regulations measure the statutory requirement
of “first occupancy” by the dates that the defendant obtains “building permits” or “certificates of
occupancy” for the “facility.” 28 C.F.R. § 36.401(a)(2) (see Exhibit 1). These events -- the only
tests set forth in the regulations -- obviously do not relate to ATMs, for which such permits and
certificates are inapplicable.
Plaintiffs try to obscure this distinction by, for instance, referring to the dates
Defendants’ ATMs were “deployed.” E.g., Pl. Reply at 3. But neither § 12183 nor the
implementing regulations refers to “deployment” dates. Plaintiffs have ignored completely the
requirement to establish the applicability of § 12183 based on the dates of “building permits” or
“certificates of occupancy,” so they have not met their moving burden.
6 The statute makes no reference whatsoever to any devices or machines that might be attached to buildings, other than elevators. Id. § 12183(b) (defining which buildings must contain elevators). But the reference to elevators ultimately is a reference to the design of the building itself; the decision whether to include an elevator in a building radically affects the design and construction of the building itself. Nothing in this lawsuit possibly affects the design of a building. Whether an ATM’s façade has a small hole on its face to accommodate headphones or has a Braille sticker in no way affects a building’s floor plan. 7 Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

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“Structurally Impracticable.” The regulation also defines the statutory exception of “structural impracticability” as when an accommodation is impossible because of the “terrain” around the building. Id. § 36.401(c)(1) (see Exhibit 1). “Terrain” only affects the design of a building, not the design of the face plate or software of an ATM, or for that matter, of any device installed within the building. In fact, Plaintiffs concede that ATMs are not affected by “terrain” when they assert that Defendants here have no “structural impracticability” defense under this section. Pl. Reply at 7. This provides additional support for the conclusion that § 12183 does not apply to ATMs.
C. The Legislative History Of § 12183 Proves It Covers Only Buildings, Not Devices That Might Be Attached To Buildings Like ATMs. Plaintiffs also ignore the legislative history that proves that Congress intended
§ 12183 to apply only to the design and construction of the buildings and places of occupancy, not to devices that might be later installed in a building.
Congress expressly stated that § 12183 is limited to accessibility issues arising in the “planning and construction of new buildings and alterations.” H.R. Rep. No. 485, 101st Cong., 2nd Sess., pt. 3, at 60 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News 445, 483 (see Exhibit 2). Section 12183 ensured that “all new facilities which potentially may be occupied by places of public accommodation but whose first occupant may not be such an entity are constructed in such a way that they are readily accessible to and usable by individuals with disabilities for the original use for which the building is intended.” S. Rep. No. 101-116, at 72 (1989) (see Exhibit 3). Nowhere does the legislative history of § 12183 discuss accessibility of manufactured devices like ATMs that are later affixed to a building.

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The purpose of § 12183 shows why Plaintiffs cannot extend § 12183 to ATMs. Congress determined that accommodations for disabled persons are most easily adopted during the initial design and construction of a facility. H.R. Rep. No. 485, at 60 (1990). By contrast, a change to a device like an ATM after it is manufactured requires retrofits, for which the relative costs of the retrofit must be considered. Id. Plaintiffs’ interpretation of §12183 -- that the relative cost of retrofitting an ATM is irrelevant (Pl. Reply at 7-8) -- would turn this entire analysis on its head. Nowhere does Congress express an intent to force Defendants to retrofit machines regardless of cost, just because they were installed in buildings constructed after a certain date. In fact, the defenses Congress gave Defendants under § 12182 belie any such notion.8 Plaintiffs’ interpretation of § 12183 is nonsensical, and Plaintiffs offer no statutory, regulatory or case support to justify its expansive view.
D. Every Case To Apply § 12183 Proves That It Covers Only The Design Of Buildings, Not The Design Of Devices Like ATMs. Finally, the case law under § 12183(a)(1) without exception proves that the
section applies only to the design of buildings and other facilities for occupancy, and not to fixtures or devices like ATMs. Plaintiffs cite no case applying § 12183(a)(1) to devices like ATMs -- precisely because every case addressing claims under § 12183(a)(1) applies the section only to alleged inaccessibility of occupiable facilities like:
• movie theatres and sports arenas; • hotels and condominiums; and
8 These defenses prevent plaintiffs from requiring defendants to take steps that impose an “undue” financial burden (§ 12182(b)(2)(A)(iii)) or to remove barriers that are not “readily achievable” (§ 12182(b)(2)(A)(iv)). See 28 C.F.R. § 36.104 (Exhibit 4) (“undue burden means significant difficulty or expense . . . readily achievable means easily accomplishable and able to be carried out without much difficulty and expense”).

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• retail stores or restaurants. See Exhibit 5 (cataloging every published opinion applying § 12183)(a)(1)). Consistent with the plain language of the statute, regulation and legislative history, these cases analyze whether designs of these large structures capable of being “occupied” accommodate persons in wheelchairs or with other locomotion disabilities. None of the cases address alleged inaccessibility of controls on small devices like ATMs that could not have affected the choices made in the layout of the structures.
One recent analogous federal decision specifically held, after a lengthy analysis, that § 12183 applies only to alleged inaccessibility of a building design, not to the design of devices inside the building. In Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d 707 (D. Colo. 2004), the court held that § 12183 did not apply to claims concerning alleged inaccessibility caused by movable display racks inside a clothing retailer. Examining the language of § 12183 and its legislative history, the court held that the accessibility requirements imposed by § 12183 are limited only to “actions taken during the building process” of a building. Id. at 710. By contrast, any claim regarding “fixtures” within the building cannot arise under § 12183, but instead only (if at all) under § 12182. Id. at 710-712. The court noted that the case law under § 12183 permitted no other conclusion. Id. at 714-15. The lengthy analysis in Colorado Cross-Disability Coalition is entirely on point and proves that claims under § 12183 are relegated only to alleged design flaws of buildings or other large physical structures.
E. Plaintiffs Offer No Support That The Term “Facility” In § 12183 Includes Devices Like ATMs. Ignoring all of the foregoing authorities, Plaintiffs misleadingly argue that ATMs
fall within the scope of § 12183(a)(1) by claiming that the term “facility” in the ADA includes attachments to buildings. Plaintiffs cite the general definitions of “facility” in the implementing

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regulations. Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment (“Pl.

Mem.”) at 6 n.7 (citing 28 C.F.R. § 36.104 & Pt. 36 Appx. A §§ 1, 3.5). These definitions

provide the meaning of “facility” for all of Title II and Title III of the ADA. Plaintiffs, however,

ignore the qualifications and limitations in § 12183. As shown above, Section 12183 --

including the language in the statute, its legislative history, and the regulatory definitions

implementing that section -- construes “facility” in a much more limited sense. This same

conclusion was reached in Colorado Cross-Disability Coalition, which rejected the same

argument Plaintiffs make here that “facility” in § 12183 should be read broadly to include

equipment or devices attached to the building. Colorado Cross-Disability Coalition, 344 F.

Supp. 2d at 713-14. In the face of all of this authority, Plaintiffs have no authority supporting

their expansive interpretation of § 12183.

*

*

*

*

For all these reasons, Plaintiffs have not and cannot sustain a claim under ADA

§ 12183. The alleged inaccessibility of ATMs simply cannot be remedied by § 12183.

Therefore, the Court should deny Plaintiffs’ Motion for Partial Summary Judgment (which rests

solely on Count V) and grant summary judgment to Defendants on Plaintiffs’ claim under

§ 12183 (Count V of the Complaint).

III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ FOUR ADDITIONAL COUNTS UNDER ADA § 12182 Regarding Plaintiffs’ other four causes of action, all under ADA § 12182,
Defendants moved for summary judgment in part because Plaintiffs have not met their burden of
identifying and producing evidence about the change to the ATMs (or the specific “accommodation”) required to comply with the ADA. Plaintiffs respond to Defendants’ Motion

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with wordplay: they say ADA § 12182 does not actually use the term “accommodation” so Plaintiffs have no such burden for the four causes of action under §12182 (Pl. Opp. at 3-4).
Plaintiffs focus on wording difference with no substantive distinctions. As shown below, every subsection of § 12182 -- using varying but effectively similar terms like “modification,” “auxiliary aid” and “structural barrier” -- requires Plaintiffs to identify, as part of their initial burden, the specific accommodation they claim will make Defendants’ ATMs ADA compliant; then Plaintiffs are required under Rule 56 to produce admissible evidence that such accommodations exist and are required under the statute.
Because Plaintiffs have not met their initial burdens with admissible evidence under each of these subsections of § 12182, Defendants are entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (summary judgment for defendant appropriate where plaintiff fails to oppose motion with admissible evidence establishing every element of plaintiff’s claim); Terry v. Bayer Corp., 145 F.3d 28, 34 (1st Cir. 1998) (to avoid summary judgment, plaintiff must show existence of evidence in support of each element essential to plaintiff’s case).
A. Count III, ADA § 12182(b)(2)(A)(iii) (Failure To Provide Auxiliary Aids). Plaintiffs misstate their initial burden under Count III (asserting a violation of
§ 12182(b)(2)(A)(iii) (“subsection (iii)”)), and then fail to provide evidence supporting their burden.
Subsection (iii) states:
For purposes of subsection (a) of this section, discrimination includes . . . a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services,

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unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden[.]
42 U.S.C. § 12182(b)(2)(A)(iii). Defendants argued that Plaintiffs’ failure to identify the
specific “accommodation” they seek renders their claim invalid. (Def. Mem. at 7-9). Plaintiffs
quibble with Defendants’ wording, arguing that this subsection speaks to “auxiliary aids” and
“necessary steps,” not “accommodations.” Pl. Opp. at 4. Plaintiffs then argue that they “only
[need] to prove a denial of a service by virtue of the absence of an auxiliary aid or service.” Id.
In essence, Plaintiffs are arguing that they can prevail on their claim without ever
identifying the “auxiliary aid” needed to make the ATMs useable by blind people. While they
admit they must prove the “absence of an auxiliary aid,” they do not explain how they can prove
an aid is “absent” if they have never identified the aid they have in mind.
Plaintiffs’ argument is unsupported by both the plain language of the statute and
by the entirety of case law under this subsection. Every case granting relief under subsection
(iii) has always involved a specifically identified “auxiliary aid.”9 By contrast, Defendants have
not found any case that granted relief under this subsection where the plaintiff failed to identify
the specific “auxiliary aid” it wanted.
9 Cases applying subsection (iii) inevitably involve a specifically identified “auxilliary aid.” E.g., Roberts v. KinderCare Learning Centers, Inc., 86 F.3d 844 (8th Cir. 1996) (one-on-one care for disabled child); Dryer v. Flower Hosp., No. 3:04CV7631, 2005 WL 2037364 (N.D. Ohio Aug. 25, 2005) (access to oxygen ports at hospital); Burriola v. Greater Toledo YMCA, 133 F. Supp. 2d 1034 (N.D. Ohio 2001) (specific techniques to support autistic child at day care center for which counselors at day care center had been trained); Alvarez v. Fountainhead, Inc., 55 F. Supp. 2d 1048 (N.D. Cal. 1999) (use of inhaler by asthmatic child); Dunlap v. Association of Bay Area Gov’ts, 996 F. Supp. 962 (N.D. Cal. 1998) (medical care); Naiman v. New York Univ., No. 95 CIV. 6469 (LMM), 1997 WL 249970 (S.D. N.Y. May 13, 1997) (qualified sign language interpreters); Mayberry v. Von Valtier, 843 F.Supp. 1160 (E.D. Mich. 1994) (interpreter for deaf patient); Bunjer v. Edwards, 985 F.Supp. 165 (D.C. D.C. 1997) (sign at drive-through speaker/menu instructing deaf patrons to proceed directly to drive through window to have orders filled).

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Even cases on which Plaintiffs rely (Pl. Opp. at 4 n.6) expressly conclude that a claim under subsection (iii) requires identification of the specific “auxiliary aid” a plaintiff seeks. In Lindgren v. Camphill Village Minn., Inc., No. 00-2271 RKH/RLE, 2002 WL 1332796, at *5 (D. Minn. June 13, 2002), for example, the plaintiffs asserted a cause of action under the auxiliary aid subsection (iii). The court held that a necessary element of this claim was proof that the defendant “failed to take the necessary steps to ensure that [plaintiffs] w[ere] not denied services because of the absence of auxiliary aids . . . .” Id. at *5. The court clarified that the “necessary steps” for an “auxiliary aid” had to be “the steps Plaintiffs ask for.” Id. (emphasis added). The court held that the plaintiffs stated a “minimally sufficient” claim because “they have identified the accommodation -- additional respite care,” and thus met this necessary element of their claim. Id. at *6 & *7 n.9. Plaintiffs’ own analysis in Lindgren directly supports Defendants’ position that Plaintiffs’ claim under subsection (iii) is deficient because the Plaintiffs have not identified the “steps” or “aid” they want.
For these reasons, Defendants are entitled to summary judgment on Count III.
B. Count IV, ADA § 12182(b)(2)(A)(iv) (Failure To Remove Architectural Barriers Or Structural Communication Barriers). Plaintiffs’ Opposition also fails to establish all of the required elements of their
claim in Count IV under § 12182(b)(2)(A)(iv) (“subsection (iv)”). Subsection (iv) states:
For purposes of subsection (a) of this section, discrimination includes . . . a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities . . . where such removal is readily achievable[.] 42 U.S.C. § 12182(b)(2)(A)(iv). Plaintiffs do not even try to meet their burden under this subsection. In a half page discussion, Plaintiffs merely quote the statute, tersely state that “the

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legal standard is clear,” and then restate the statutory language. Pl. Opp. at 4. Plaintiffs never
mention the standard of proof, as described in numerous cases, and they do not even attempt to
show they have satisfied their burdens under subsection (iv).
Plaintiffs avoid talking about their obligations under subsection (iv) because they
have not and cannot satisfy them. Universal authority imposes the initial burden on Plaintiffs of
proving not only that a barrier exists, but also proving that the barrier can be removed in a
“readily achievable” way: Colorado Cross Disability Coalition v. Hermanson Family Ltd., 264
F.3d 999, 1007 (10th Cir. 2001) (“Hermanson”) (“Plaintiff must initially introduce evidence
tending to establish that the proposed method of architectural barrier removal is ‘readily
achievable’ . . . [o]nly if Plaintiff satisfies this initial burden does the burden of persuasion shift
to Defendant”); Brother v. CPL Invests., Inc., 317 F. Supp. 2d 1358, 1370 (S.D. Fla. 2004)
(“Plaintiff bears the initial burden of suggesting a method of removal for each barrier identified,
and proffering evidence that their suggested method is readily achievable.”); Parr v. L&L Drive-
Inn Rest., 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000) (“To succeed on a ADA claim . . . due to an
architectural barrier, the plaintiff must also prove . . . removal of a barrier is readily achievable”) (emphasis in original).10
Plaintiffs have not provided admissible evidence as to how Defendants can
“readily” “remove” the alleged “barriers” at their ATMs -- that is, how ATMs can be made
10 See also Association for Disabled Ams. v. Claypool Holdings, No. IP00-0344-C-TIG, 2001 WL 1112109, at *26 (S.D. Ind. Aug. 6, 2001) (“To establish a prima facie case of disability discrimination based on an architectural barrier . . . a plaintiff must demonstrate . . . that: (1) the facility presents an architectural barrier prohibited by the ADA; and (2) removal of the barrier is ‘readily achievable’.”); Pascuiti v. New York Yankees, No. 98 CIV. 8186 (SAS), 1999 WL 112748, at *1 (S.D.N.Y. Dec. 6, 1999) (plaintiffs “bear the initial burden of suggesting a method of barrier removal and proffering evidence that their suggested method meets the statutory definition of ‘readily achievable’”).

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accessible to blind people (without voice technology). This Court should follow numerous other decisions denying claims where, as here, plaintiffs fail to provide admissible evidence of how defendants can remove these structural barriers. For example, in the Tenth Circuit Hermanson case, the plaintiff sought wheelchair access to a building. But because the plaintiff only offered “speculative concepts” of how a ramp could be installed, and did not provide any evidence of a specific design, the court ruled for the defendant. 264 F.3d at 1009. Numerous other courts have reached similar results. E.g., Speciner v. Nationsbank, N.A., 215 F. Supp. 2d 622, 632-33 (D. Md. 2002) (plaintiff failed to meet burden, because plaintiff provided only a “conceptual sketch” of how a barrier could be removed); Access Now, Inc. v. South Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1370 (S.D. Fla. 2001) (plaintiff “completely failed to suggest a plan of modification, much less demonstrate that such modification would be readily achievable”); Gilbert v. Eckerd Drugs, No. CIV. A. 97-3118, 1998 WL 388567, at *2 (E.D. La. July 8, 1998) (dismissing plaintiff’s claim where plaintiff failed to prove removal of the barrier was “readily achievable”).
Because Plaintiffs ignore the relevant standard and fail to provide any evidence in support of their initial burden, Defendants are entitled to summary judgment on Count IV.11
C. Count II, ADA § 12182(b)(2)(A)(ii) (Modification of Policies). Finally, Plaintiffs also fail to provide any evidence supporting Count II, which
asserts a claim under § 12182(b)(2)(A)(ii) (“subsection (ii)”). Subsection (ii) states:
11 In a footnote Plaintiffs seem to suggest that based on Defendants’ discovery responses they do not have a claim under subsection (iv) anyway. See Pl. Opp. at 4 n.7. Plaintiffs appear to be arguing that they can have a valid claim under § 12182’s subsection (iv) or under § 12183 (analyzed above), but not both. Plaintiffs cite no authority for this proposition. At oral argument, the Court should determine if Plaintiffs still assert a claim under subsection (iv).

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For purposes of subsection (a) of this section, discrimination includes . . . a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations[.] 42 U.S.C. § 12182(b)(2)(A)(ii). Plaintiffs’ Opposition actually supports summary judgment for
Defendants on this count because: (1) Plaintiffs admit Count II does not apply to defendant
Cardtronics; (2) Plaintiffs misstate their initial burden under controlling First Circuit case law;
and (3) Plaintiffs fail to proffer evidence to meet their initial burden.
1. Plaintiffs Effectively A dmit T hey Have No Claim Under T his Subsection A gainst Defendant Cardtronics.
Count II differs from the other counts in a very significant way: Count II does not
address the design of the ATMs, but instead only concerns “policies, practices, or procedures”
regarding “banking services.” Pl. Opp. at 5-6 (“Count II alleges that Defendants have failed to
make reasonable modifications to their policies for providing ATM banking services” but does
not “address the retrofitting of ATMs”). Plaintiffs solely focus on defendant E*TRADE Bank,
id. at 6-7, never mentioning how Count II could apply to defendant Cardtronics, a non-banking
entity that owns some ATMs. Plaintiffs have not asserted that any banking “policy, practice, or
procedure” of Cardtronics needs to be “modified” pursuant to subsection (ii) -- nor could they,
because Cardtronics is not a bank, and does not offer “banking services.” As a result, the Court
can enter partial summary judgment for defendant Cardtronics regarding Count II.

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2. Plaintiffs Ignore T he Burden Imposed By Controlling A nd Persuasive A uthorities.
Regarding defendant E*TRADE Bank, Plaintiffs cannot rebut the requirement that they identify a specific “reasonable” modification they seek. See Def. Mem. at 6.12 The Supreme Court explained that a “reasonable modification” claim requires specificity, because “an individualized inquiry must be made to determine whether a specific modification for a particular person's disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001) (“Martin”) (emphasis added).
Ignoring the Supreme Court’s rule in Martin, Plaintiffs instead argue that they only need to request a change in policy, without specifying any particular change. Pl. Opp. at 6. Plaintiffs rely on only two cases for this incorrect proposition, both of which actually prove Defendants’ arguments. In the First Circuit case of Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir. 2003) (cited at Pl. Opp. at 6 n.11), the court expressly held that Plaintiffs have an initial burden of proving --
that he (the plaintiff) requested a reasonable modification in that policy or practice which, if granted, would have afforded him access to the desired goods; that the requested modification -- or a modification like it -- was necessary to afford that access . . . . Id. at 307. Consistent with that burden, the plaintiff in that case specifically identified the policy change he wanted.13

12 Citing, inter alia, Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995) (plaintiff must “suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.”); Dahlberg v. Avis Rent A Car Sys., Inc., 92 F. Supp. 2d 1091, 1105 (D. Colo. 2000) (“[T]he plaintiff in a title III case has the burden of proving that a modification was requested and that the requested modification is reasonable.”).
13 In the words of the Plaintiffs, the request in Dudley was for a retailer “to deviate from its policy of not reconsidering cashier’s decision not to sell him alcohol to satisfy the requirements
Footnote continued on next page

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This requirement does not mean (as Plaintiffs suggest) that Plaintiffs can request some unnamed modification and leave it to Defendants to figure out how to accomplish it. The First Circuit requires the Plaintiffs to request “a reasonable modification” “or a modification like it” that would remedy the alleged inaccessibility, language which is meaningless if Plaintiffs did not have to identify the specific modification they seek. Id.; see also Guckenberger v. Boston Univ., 974 F. Supp. 106, 146 (D. Mass. 1997) (“In the reasonable modifications context, the plaintiff has the initial burden of proving ‘that a modification was requested and that the requested modification is generally reasonable’” (emphasis added)).
Plaintiffs rely heavily on the Ninth Circuit decision in Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) (“Fortyune”) (cited at Pl. Opp. at 6-7), but that case actually supports Defendants’ argument. The Ninth Circuit held that “[t]o establish a violation of Title III . . . [plaintiff] must also show that [defendant] discriminated against him by failing to make a reasonable modification in ‘policies, practices, or procedures.’” Id. at 1082 (emphasis added); (also stating this element as a showing that defendant “failed to make a requested reasonable modification”). Id. Nothing in Fortyune supports Plaintiffs’ contention that they need only request a modification without specifying what modification they desire.
In sum, applying the binding rule in Martin, the cases both parties cite require Plaintiffs to identify the specific “reasonable modification” they seek for Defendant E*TRADE Bank’s “policies, practices, or procedures.”

Footnote continued from previous page of the statute.” Pl. Opp. at 6 n.11. Stated in the affirmative, the policy change was for the retailer to sell the alcohol to the plaintiff.

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3. Plaintiffs Have Not M et T heir Burden T o Produce Evidence T hat E*T R ADE Bank Can R easonably M odify Its Policies, Practices, Or Procedures.
Because Plaintiffs have failed to produce evidence that they requested a specific modification that would be “reasonable,” E*TRADE Bank is entitled to summary judgment on Count II.
First, Plaintiffs have failed to produce evidence that they ever requested a modification to a “policy, practice, or procedure” of E*TRADE Bank. The only “evidence” Plaintiffs cite is a letter the NFB sent to E*TRADE Bank dated November 20, 2002, see Pl. Opp. at 6 & n.10 and Ex. 2 to Pl. Opp. However, the letter does not request any changes to bank “policies” or practices. Instead, it requests alteration of the ATMs themselves to make them comply with the ADAAG. Id. Plaintiffs themselves drew the line between changes to the Bank’s policies and changes to the design of ATMs. Pl. Opp. at 6-7. The letter falls on the latter side of this line. Plaintiffs therefore have not shown any evidence that they ever requested a modification to the Bank’s policies, so Defendants are entitled to summary judgment on Count II.
Second, even if the lawsuit itself is deemed a “request” for a modification (which would be inconsistent with Martin and all of its progeny), Plaintiffs still fail to meet their burden because the changes they seek in this lawsuit are facially unreasonable.
Plaintiffs argue that the Bank should change the terms of its services offered to blind people. They allege that E*TRADE Bank’s services can only be accessed through ATMs, Pl. Opp. at 6, and that customers are not charged for using E*TRADE-branded ATMs, but only for non-E*TRADE ATMs. Id. Plaintiffs claim that these services are discriminatory because blind people who cannot use E*TRADE ATMs must always pay a surcharge for the Bank’s

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services. Id. Plaintiffs seek “modifications” to the Bank’s services so that blind people can avoid paying surcharges that sighted customers can readily avoid.
But none of the Plaintiffs’ requested “modifications” is even facially reasonable. At first Plaintiffs modestly suggest that the Bank abandon its exclusively mail and electronic business model and instead build a nationwide network of “brick-and-mortar” branch offices. Pl. Opp. to Def. Motion Under Rule 19 at 5-7. The Court can conclude that, on its face, an order requiring E*TRADE Bank to abandon its electronic model and instead build 11,000 “brick and mortar” bank branches (to substitute for each existing ATM) is not a “reasonable” modification and would “fundamentally alter” the nature of the Bank’s services, a modification expressly not required by subsection (ii). Cf. Dahlberg, 92 F. Supp. 2d at 1105 (granting summary judgment for defendant because plaintiff failed to explain how suggested modification to defendant’s reservation system was reasonable); Dryer, 2005 WL 2037364, at *8 & *9 (granting summary judgment for defendant because plaintiff's suggested modification requiring defendant hospital to provide oxygen access to non-patients was unreasonable).
Plaintiffs further suggest that E*TRADE Bank can “modify its policies to afford blind depositors fee-free transactions at accessible ATMs operated by deployers other than Defendants.” Pl. Opp. at 7 (emphases added). Plaintiffs are suggesting that the Bank allow blind people to use non-E*TRADE/non-Cardtronic ATMs without a fee. The Court can also reject this specious suggestion on summary judgment. Plaintiffs offer no admissible evidence that “other” ATMs are “accessible” to blind people while Defendants’ are not. Indeed, because Plaintiffs have never explained how Defendants’ ATMs can be made “accessible” within the

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ADA’s current requirements, Plaintiffs have not supported the suggestion that “other” ATMs are themselves “accessible” as defined by the ADAAG.14
Plaintiffs cannot articulate a “reasonable” policy modification because they are not seeking a change to a “policy” at all, but are still fighting the design of the ATMs. E*TRADE Bank’s existing policy is entirely nondiscriminatory: any customer, blind or otherwise, using E*TRADE-branded ATMs is not charged fees for using those ATMs. Blind people certainly are not singled out by the policy. The only reason this policy allegedly is discriminatory is because the design of the ATMs allegedly makes the ATMs inaccessible to blind people. This claim is therefore a veiled challenge to the design of the ATMs, merely couched as a challenge to the Bank’s policies.
For all of the foregoing reasons, the Court should grant summary judgment in Defendants’ favor under Count II, invoking § 12182(b)(2)(A)(ii).
D. Because Defendants Are Entitled To Summary Judgment On All Counts Under § 12182(b), Defendants Are Also Entitled To Summary Judgment On Plaintiffs’ Count I Under § 12182(a). Plaintiffs wrongly argue that they have an independent claim under ADA
§ 12182(a). Pl. Opp. at 3. The law says otherwise. This subsection provides the ADA’s general standard for places of public accommodation. It does not set forth any specific requirements, and it provides no affirmative defenses. The substantive requirements of what constitutes “discrimination” against disabled persons are set forth in the subsequent provisions of
14 Plaintiffs demand for fee-free transactions at accessible ATMs of deployers other than Defendants is a thinly veiled suggestion that the Court should require E*TRADE’s policies to allow fee-free use of voice accessible machines. Of course, the Court has already rejected Plaintiffs’ assertion that the ADA requires voice accessibility, so it follows that no “banking policy” can be required to use voice-accessible machines.

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§ 12182(b). See 42 U.S.C. § 12182(b) (“For purposes of subsection (a) of this section, discrimination includes . . . ”).
Section 12182(a) does not provide an independent basis for recovery where Plaintiffs seek recovery under the more specific § 12182(b) provision. The implementing regulations (to which this Court should afford Chevron-type deference) make clear that the general standard in § 12182(a) does not apply where specific limitations of § 12182(b) also apply. See 28 C.F.R. § 36.213 (Exhibit 6) (the “specific limitations” of regulations implementing § 12182(b) “control over the general provisions” implementing § 12182(a) “where both specific and general provisions apply”). The Supreme Court has explained that the “the question of whether [a party] has violated” the general rule in § 12182(a) “depends on a proper construction of the term ‘discrimination,’ which is defined” in § 12812(b). Martin, 532 U.S. at 681-82. For this reason, courts typically reject claims under § 12182(a) where the plaintiff’s claim is addressed by the more specific provisions of § 12182(b). See, e.g., Lonberg v. Sanborn Theatres, Inc., 259 F.2d 1029, 1033 (9th Cir. 2001) (holding that § 12182(a) “does not define discrimination,” but “subsequent provisions of Title III define the activities which constitute ‘discrimination’ in the ‘[g]eneral rule’ of liability”); Menkowitz v. Pottstown Mem. Med. Ctr., 154 F.3d 113, 117 (3d Cir. 1998) (definitions of “discrimination” in § 12182(b) “define the term discrimination for the purposes of the general rule announced in . . . §12182(a)”).
Plaintiffs do not present any authority to the contrary. They cite only two cases, see Pl. Opp. at 3 n.5, where the parties disputed if the plaintiffs’ claims were governed by Title III of the ADA. Neither case addressed whether the claim could be brought under

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§ 12182(a) where claims under § 12182(b) also are raised.15 Therefore, these cases are of no use
here.
Because Defendants are entitled to summary judgment on all of Plaintiffs’ claims
under § 12182(b), Defendants are also entitled to summary judgment on Plaintiffs’ claim under §
12182(a), which does not provide any different or additional substantive requirements on Defendants.16
IV. PLAINTIFFS HAVE NOT OFFERED SUFFICIENT EVIDENCE TO PREVAIL ON SUMMARY JUDGMENT Plaintiffs improperly seek summary judgment under Count V for thousands of
Defendants’ ATMs based on evidence about only 12 specific ATMs. Plaintiffs’ Opposition
recognizes this problem and invites the Court to make unwarranted assumptions and inferences
about the other over ten thousand ATMs. Pl. Opp. at 4-5. Plaintiffs speculate that “the problems
encountered [at the 12 ATMs] is indeed endemic to Cardtronics’ entire fleet of ATMs.” Id.
Plaintiffs present no admissible evidence to support that preposterous conclusion.
More startling, Plaintiffs base their motion on a Request for Admission that
defendant Cardtronics denied. Pl. Opp. at 4. Cardtronics denied that its ATMs were not
“independently usable” by blind people. Unphased, Plaintiffs ask the Court to grant summary
judgment on the basis of this denied Request for Admission because Defendants’ other discovery
15 That the Supreme Court case cited by the Plaintiffs, Bragdon v. Abbot, 524 U.S. 624 (1998), did not address the elements of a prima facie claim under 12182(a) is made clear by the fact that the Supreme Court was reviewing a case involving a violation of 12182(b). See Abbot v. Bragdon, 912 F. Supp. 580, 596 (D. Me. 1995) (“The Court has determined that Defendant's conduct violated title III of the ADA, specifically, 42 U.S.C. § 12182(b)(2)(A)(i).”). The Supreme Court did not address this aspect of the District Court’s decision. 524 U.S. at 628. 16 Indeed, 12182(a) does not allow for any affirmative defenses, further proving the point that § 12182(b) is the section of the statute courts look to when determining liability under Title III of the ADA.

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responses, and documents Defendants produced, allegedly did not provide evidence supporting the denial. Id. at 4-5. This is patently ridiculous. For example, although Defendants “admitted” the obvious, that the ATMs’ visual screens might not be visible to some blind people (who, by definition, cannot see normally), Plaintiffs stretch that unremarkable proposition to the conclusion that Defendants’ ATMs have no information useful to blind people. Id. at 5. This leap is completely unwarranted. ATMs contain instructions other than in computer screens; Plaintiffs’ own affidavits prove, for example, that ATMs they visited contained Braille instructions.
Plaintiffs cannot obtain summary judgment on the mere inference that the thousands of ATMs lack any instructions. It is well settled that all inferences here must be drawn against the Plaintiffs. Douglas v. York County, 360 F.3d 286, 290 (1st Cir. 2004) (on a motion for summary judgment all reasonable inferences must be drawn in favor of the nonmoving party, regardless of who bears the ultimate burden of proof); Sparks v. Fidelity Nat’l Title Ins. Co., 294 F.3d 259, 266 (1st Cir. 2002) (must view the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-moving party’s favor). Lacking any evidence whatsoever regarding Braille instructions at the thousands of other ATMs, Plaintiffs have absolutely no basis to move for summary judgment on the entire fleet of ATMs.
If the Court does not reject Plaintiffs’ Motion for Partial Summary Judgment because Count V does not apply to ATMs (see Part II, supra), the Court should deny that motion because Plaintiffs offer only conjecture, not admissible evidence, supporting it.

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V. PLAINTIFFS ARE SEEKING A PROHIBITED “OBEY THE LAW” INJUNCTION, BECAUSE DEFENDANTS HAVE NO GUIDANCE WITH RESPECT TO HOW TO OBEY IT Defendants argued that Plaintiffs are seeking an impermissibly overbroad “obey
the law” injunction. Plaintiffs respond that sometimes an injunction is adequate if it merely restates the governing statutory (or, here, regulatory) “performance-based” standard. Pl. Reply at 12-15. That is true but inapplicable here.
The Court can easily conclude that the injunction Plaintiffs desire, merely requiring ATMs to be “independently usable,” is ambiguous if it is different than what Defendants (and the entire industry) have done for the last 15 years. If so, Defendants could not possibly know how to comply with the proposed injunction. The parties have debated for two years now what “independently usable” means. Plaintiffs asserted for over a year that the term required voice technology; the Court rejected that, and the Plaintiffs still disagree. Now, Defendants contend Braille is sufficient, based on the ADAAG, but Plaintiffs continue to allege it is never sufficient. Third Amended Complaint ¶ 29. This debate will continue even if the Court enters the injunction Plaintiffs demand.
None of the cases Plaintiffs cite allows the Court to enter an injunction that has no obvious method of compliance. In Fortyune v. American Multi-Cinema, a case Plaintiffs repeatedly cite, the Ninth Circuit required a “performance-based” injunction (to use Plaintiffs’ words) that was far more specific than the injunction requested here;17 also, the Court was “confident that [defendant] is capable of devising such means, particularly in light of the
17 The injunction, which the Court stated “could not have been much clearer in describing what AMC must do to comply” dictated “that AMC must ensure that companions to wheelchairbound patrons be able to sit with their companions until ten minutes before the film begins.” 364 F.3d at 1087.

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numerous workable suggestions articulated at oral argument.” 364 F.3d at 1087 (emphasis added).18 Here, in contrast, the requested injunction (making ATMs independently usable) is non-specific, and Defendants are still pleading with Plaintiffs to articulate even one workable change to its ATMs that would be required by the ADAAG.
The other cases on which Plaintiffs rely merely prohibited Defendants from engaging in actions they had already taken, creating no uncertainty as to how to comply.19 The injunction Plaintiffs desire, although couched as a negative prohibition (“do not violate the ADA”), actually seeks affirmative relief in the form of changes to existing ATMs. Therefore, none of these cases supports Plaintiffs.
Plaintiffs are not entitled to the broad injunction they seek. Rather, they must identify the specific accommodations (or, using various terms used in the ADA, “modifications,” “auxiliary aids,” or “removals” of “structural barriers”) that would permit Defendants to comply with the ADA. Plaintiffs refuse to provide this clarity because they have no options to offer -other than voice technology, which this Court has already rejected.

18 See also McComb v. Jacksonville Paper Co., 336 U.S. 187, 189 (1949) (Pl. Reply at 13) (requiring defendant to keep records);Taylor Wine Co. v. Bully Hill Vineyards, Inc., 590 F.2d 701, 704 (2d Cir. 1978) (Pl. Reply at 13) (specifying labeling requirements for bottles).
19 McComb, 336 U.S. at 189 (upholding contempt order for a defendant’s refusal to comply with an injunction prohibiting specific acts such as “paying the designated employees less than 30 CENTS an hour from date of judgment to October 24, 1945,” in light of the defendant's “continuing violation of FLSA”); SEC v. Manor Nursing Ctrs., Inc., 458 F.2d 1082, 1103 (2d Cir. 1972) (Pl. Reply at 13) (defendant admitted violations of § 10b of Security Exchange Act, so “there can be no abuse of discretion in framing an injunction in terms of the specific statutory provision which the court concludes has been violated”); United States v. Miller, 588 F.2d 1256, 1261 (9th Cir. 1978) (Pl. Reply at 14) (upholding injunction requiring compliance with ICC licensing provisions after the Court found 85 prior violations of ICC requirements); Taylor Wine, 590 F.2d at 704 (upholding a preliminary injunction that included more than 22 separately delineated, detailed requirements temporarily prohibiting defendants from continuing its anticompetitive acts).

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Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 29 of 32
VI. PLAINTIFFS’ REQUEST FOR ADDITIONAL DISCOVERY IS A RUSE TO AVOID SUMMARY JUDGMENT As a last resort, Plaintiffs predictably invoke Rule 56(f) and request additional
discovery on the grounds they are unable to respond adequately to Defendants’ motion. Pl. Opp. at 7-12. The Court can easily reject this request.
Plaintiff National Federation of the Blind (“NFB”) and its national counsel representing it here are long experienced in the ATM industry. NFB has participated for years in the Department of Justice’s formulation of changes to the regulations implementing the ADA, particularly as they apply to ATMs. NFB has negotiated settlements with many large banks regarding their ATMs’ compliance with the ADA. NFB’s discovery requests on E*TRADE shows NFB’s sophistication in the industry, asking pointed technologically-savvy questions, such as, about the ATM’s use of “Triple DES” standards.
In short, Plaintiffs are fully capable of suggesting changes to Defendants’ ATMs that they believe would remedy the alleged inaccessibility. If other banks use auxiliary aids or devices that afford full access to blind people (other than voice guidance), the Plaintiffs surely know exactly what that is. Indeed, Plaintiffs are arguing that E*TRADE Bank should modify its “policies” to allow no-surcharge use of “other” “accessible” ATMs by blind customers -- if Plaintiffs have any basis for that demand, then they surely know what controls the “other” ATMs have to make them accessible but that are lacking in Defendants’ ATMs. Plaintiffs’ failure to identify even one such auxiliary aid or device provides a basis to grant summary judgment for Defendants. No discovery from Defendants can affect that issue; in fact, Defendants repeatedly profess ignorance at any such aids or devices, so further discovery on Defendants will never give Plaintiffs the information they would need to avoid summary judgment.

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Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 30 of 32

VII. CONCLUSION For these reasons, the Court should grant Defendants’ Cross-Motion for Summary

Judgment, deny Plaintiffs’ Motion for Partial Summary Judgment, and enter final judgment

against Plaintiffs and in Defendants’ favor.

Respectfully submitted,

E*TRADE ACCESS, INC., E*TRADE BANK, CARDTRONICS, LP AND CARDTRONICS, INC.

By their attorneys,

/s/ Douglas P. Lobel Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 720-7000
Joseph L. Kociubes BBO # 276360 Jenny K. Cooper BBO # 646860 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000

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Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 31 of 32

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

COMMONWEALTH OF MASSACHUSETTS )

et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 03 11206 MEL

)

E*TRADE ACCESS, INC.,

)

et al.,

)

)

Defendants.

)

__________________________________________)

CERTIFICATE OF SERVICE

I, Douglas P. Lobel, hereby certify that on September 7, 2005, I caused a

true and accurate copy of Reply Brief in Support of Defendants’ Cross-Motion for

Summary Judgment to be served via electronic and first class mail upon the following

counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, Massachusetts 02108 patty.correa@ago.state.ma.us Attorney for Plaintiff Commonwealth of Massachusetts
Anthony M. Doniger, Esquire Christine M. Netski, Esquire Sugarman, Rogers, Barshak & Cohen, P.C. 101 Merrimac Street Boston, Massachusetts 02114-4737 doniger@srbc.com netski@srbc.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes, Esquire Jenny K. Cooper, Esquire Bingham & McCutchen LLP 150 Federal Street Boston, Massachusetts 02110 joe.kociubes@bingham.com jenny.cooper@bingham.com Attorneys for Defendants, E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP and Cardtronics, Inc.

LITDOCS/533011.1

Case 1:03-cv-11206-MEL Document 161-1 Filed 09/07/2005 Page 32 of 32 Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 dfg@browngold.com skw@browngold.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver
/s/ Douglas P. Lobel
-2-
LITDOCS/533011.1

 
 Case 1:03-cv-11206-MEL Document 163 Filed 09/15/2005 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, NATIONAL FEDERATION OF THE BLIND, INC., NATIONAL FEDERATION OF THE BLIND OF MASSACHUSETTS, INC., ADRIENNE ASCH, RICHARD DOWNS, THERESA JERALDI and PHILIP OLIVER,
Plaintiffs,

C.A. No.: 03 11206-MEI

E’TRADE ACCESS, INC., E’TRADE BANK,

.

CARDTRONICS, INC., and CARDTRONICS, LP .

Defendants.

COMMONWEALTH’S SURREPLY TO DEFENDANTS’ REPLY BRIEF IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMEN
The Commonwealth submits this surreply to respond to a ground for summary judg~e Defendants raise for the first time in Argument II of their reply brief~ that they did not include a ground in their original cross-motion for summary judgment2 nor mention or discuss in th,zil original brief in support of that motion.3 Defendants now argue that the new construction
mandate does not apply at all to ATMs or any of the types of built-in equipment that are the subject of the detailed and exhaustive requirements of the ADAAG that DOJ adopted as its ov

t See Reply Brief in Support of Defendants’ Cross-Motion for Summary Judgment ("Reply"), z See Defendants’ Cross-Motion for Summary Judgment on Plaintiffs’ Claims Under the Americans with
Disabilities Act. 3 See Memorandum in Support of Defendants’ Cross-Motion for Summary Judgment on PIaintiffs’ Claims Under
the Americans with Disabilities Act.

Case 1:03-cv-11206-MEL Document 163 Filed 09/15/2005 Page 2 of 8
regulation, which Defendants themselves acknowledge are entitled to "Chevron-type
deference.’’4
Defendants selectively quote tcr the Court certain language in the new construction mandate, 42 U.S.C. § 1218:3, referencing such items as "certificates of occupancy," and mischaracterize the case law in support of their proposition. However, as Defendants are zw; the new construction mandate applies to new and altered "facilities," 42 U.S.C. § 12183 (a), which DOJ’s regulations - again, that are subject to "Chevron-type deference" -- define to include "all or any portion of ... equipment ... or other.., personal property," in addition to buildings or portions of them.5
Applicable legislative history issued by the Access Board and interpretive guidance ar regulation issued by DOJ add a caveat to this definition by specifying that to be covered by ADAAG, equipment must somehow be made part of a building. In its preamble to the ADA/ that was later adopted by DO J,6 the Access Board stated explicitly that the ADAAG "address[ ... that equipment that is fixed or built into the structure of the building.’’7 The Access Board
4 Reply at 5 & n.7 (citing Chevron, U.S.A.v. Natural Res. Def Council, lnc., 467 U.S. 837 (1984)); see also Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (citing Chevron, 467 U.S. at 844, granting deference to DOJ Title l regulations and Technical Assistance Manual given that DOJ was the "agency directed by Congress to issue implementing regulations, render technical assistance explaining the responsibilities of covered individuals arA institutions, and to enforce Title III in court") (citations omitted). The ADAAG is incorporated by reference in DOJ’s Title III implementing regulations, See 28 C.F.R. Part 36.406.
5 28 C.F.R. Part 36.104. 6 Defendants cannot dispute that the Access Board’s preamble comprises relevant legislative history, as they r,::lie on it extensively in support of their Fed. R. Civ. P, 12(c) motion. See Memorandum in Support of Defendants’ R 12(c) Motion for Judgment on the Pleadings (filed November 9, 2004), Argument I. 7 Preample to Access Board’s Final Guidelines (attached as Exhibit 3 to the Independent Community Bankers of America and America’s Community Bankers’ Appendix to Amici Curiae Brief, filed with the Court on February 2005, in connection with Defendants’ Fed. R. Civ. P. 12(c) motion), 56 F.R. 35,408 at "12. Because this docurne is voluminous, the Commonwealth does not resubmit it to the Court.

Case 1:03-cv-11206-MEL Document 163 Filed 09/15/2005 Page 3 of 8
illustrates this caveat throughout its preamble in a number of instances where it adopts, rej qualifies provisions relating to equipment, in some instances rejecting provisions that relate t, equipment that is not fixed or built into a structure and therefore beyond its purview.8 Its
exposition of the provisions on ATMs, including ADAAG § 4.34.5, the provision at issue in lawsuit, expresses its correct assumption that ATMs fall squarely within that category of buil~ equipment subject to regulation under the new construction mandate.9
In its own guidance, DOJ explicitly adopted the view of the Access Board, and indeed specifically discussed the example of ATMs:
Only equipment that is fixed or built in to the facility is covered by the accessibility standards (e.g., ... built-in ATMs). Free-standing equipment is not covered by ADAA but public accommodations may be required to purchase accessible free-standing equipment in certain circumstances in order to provide equal opportunity. ~0 That DOJ interpreted and intended the new construction mandate to apply to built-in equipme
is further demonstrated by its promulgation of a Title III implementing regulation that is specificalIy applicable to equipment subject to the new construction standard.11
8 See 56 F.R. 35,408 at *52 (declining to issue guidelines on point-of-sale machines, explaining that in its view majority of the machines are equipment that is not fixed or built into a structure and is "therefore not within tl~e Board’s purview"), *54 (explaining deletion from Final Guidelines of provision on vending machines on the grol that it "relates to equipment not under the jurisdiction of these guidelines"), *65 (explaining that ADAAG § 4.27 controls) applies to built-in appliances, not portable appliances such as toasters and coffee makers). 9 Id. at *28, *49-*52 (stating that "the legislative history oftlae ADA specifically mentions automatic teller rmlch (ATMs) as covered by the accessibility requirements," and explaining its adoption of a "flexible performance standard" for ATMs).
Title III Technical Assistance Manual 1994 Supplement, Section 1II-5.3000 (attached as Exhibit A).
11 Compare 28 C.F.R. Part 36,211 (requiring the maintenance in operable condition of "equipment that [is] req~ai to be readily accessible to and usable by persons with disabilities by the Act or this part") (emphasis added) ~ith U.S.C. § 12183(a) (requiring new construction and alterations to be "readily accessible to and usable by individu with disabilities ’3 (emphasis added).

Case 1:03-cv-11206-MEL Document 163 Filed 09/15/2005 Page 4 of 8
It is therefore unremarkable that the ADAAG that DOJ adopted prescribes in detaiil tt
features of manufactured equipment that can be legally affixed or built into buildings.
Doorknobs that are installed must "have a shape that is easy to grasp with one hand and de.es
require tight grasping, tight pinching, or twisting of the wrist to operate" (such as a "leveroperated" or "push-type" mechanism);12 water fountains and coolers selected for installati(zn
must be of a type that has the spout at the front and which directs the water flow in a direct;io~ that is "parallel or nearly parallel" to the front of the unit;t3 urinals that are chosen for bath:ro~
must feature flush controls that are "hand operated or automatic;’’14 shower unit fixtures th~.:tt
added must be of a type that includes "a hose at least 60 in (1525 mm) long that can be used
as a fixed shower head and as a hand-held shower,’’15 to name a few. 16
The legislative history of, and case law under, the new construction mandate (includ in cases cited by Defendants themselves)17 confirm that even equipment that is later affixed to a
building is covered by the ADAAG under the new construction mandate, notwithstanding
Defendants’ assertions to the contrary. For example, the Access Board’s preample to the
~2 ADAAG § 4.13.9. 13 ld., § 4.15.3. ~ Id., § 4.18.4. ~5 ld., § 4.20.6. ~6 An inexhaustive list of other examples include ADAAG §§ 4.19.5 (specifying features of faucets), 4.24.4 (specifying maximum depth of sinks), 4.26.2 (specifying diameter of grab bars), 4.27.4 (specifying that control,,;. operating mechanisms shall be of a type that is "operable with one hand" and that does not require "tight grasl:.in. pinching, or twisting of the wrist"), 4.28.3 (specifying photometric features of visual alarms, including type, colo maximum pulse duration, intensity, and flash rate), 4.31.6 (requiting push button controls on telephones). 17 The cases the Defendants cite in Exhibit 5 to their Reply fail to support their novel proposition that the ADAA~ does not apply to equipment built into structures. For example, Defendants categorize these cases by type of (rather than by type of building feature at issue, e.g., faucets, visual alarms, or ATMs) to apparently prove that th new construction mandate does not apply to equipment, but a number of the cases they list do concern violatic.ns ADAAG posed by non-compliant manufactured equipment that is built into structures, as explained in further below, In addition, a number of the cases they cite only concern issues having nothing to do with the merits of claims under the new construction mandate and are inapposite to their arguments. See, e,g., Clark v. McDonarM Corp., 213 F.R.D. 198 (D.N.J. 2003) (class certification, standing, and request for more definite statement); v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004) (class certification); Disabled Americans for Equal Access, v. Ferries Del Caribe, lnc,, 405 F.3d 60 (1~t Cir. 2005) (applicability of ADA to cruise ships); Weese v. Assoc. Wholesale Grocers, Inc,, No. 99-2575-JWL (D, Kan. Sept. 28, 2000) (standing, in Title I case where plaintiff longer employee).
4

Case 1:03-cv-11206-MEL Document 163 Filed 09/15/2005 Page 5 of 8
ADAAG makes clear that a changed feature of a building, even relating to manufactured
equipment, must comply with ADAAG; thus a changed door knob chosen for installation rau be of the type prescribed by ADAAG.~8 In Lieber v. Macy’s West, Inc.,~9 a case cited by tl,te
Defendants in Exhibit 5 to their Reply, the plaintiffs challenged the accessibility of racks, she
and display counters that were affixed to portions of a preexisting structure in a manner that C not comply with ADAAG. The court reviewed testimony that the display-related equipment "fixed because they are ’wired,’ or electronically attached to their locations on the floor," and concluded that they were therefore subject to ADAAG.2° Similarly, other new elements tl~at
were obviously manufactured and later introduced as a fixed feature of the building, such a:; d
hardware and self-service computer terminals (which the court analyzed under ADAAG § ,1..2 governing "controls") were also subject to ADAAG. 21
Defendants place great reliance on Colorado Cross-Disabili~ Coalition v. Too22 to
ostensibly prove that only building features that are constructed rather than installed are to the new construction mandate. However, Too is hardly on point; the court’s conclusion tiae
that a retail store’s display racks were not subject to ADAAG under the new construction mandate hinged on its explicit finding that the racks were "movable" rather than fixed.23 In.
contrast to display racks, there is no question that ATMs are built into or affixed to structures.:
~s 56 F.R. 35408 at *29. While the Access Board made this statement in the context of discussing an altered (i.e., the replacement of a doorknob), it would defy common sense to think that the outcome is any different wi~e~ facility or feature of a facility is added to existing construction, such as where an ATM is newly deployed. ~9 80 F. Supp. 2d 1065 (N.D. Cal. 1999). zo Id. at 1068, 1076-77. 2~ ld. at 1076. See also Disabled in Action of Metropolitan New York, [2003 WL 1751785] Cir. Action No. 01.-:5: (MBM) (April 2, 2003 S.D.N.Y.), cited in Exhibit 5 to Defendants’ Reply (denying defendant’s motion for sm~xrr judgment as to plaintiffs’ claim that wheelchair lift that was added to pre-existing building failed to comply wil:h ADAAG § 4. l 1.3’s requirement that lifts be independently operable). z~ 344. F. Supp. 2d 707 (D. Colo. 2004). ~3 ld. ~ See Declaration of Dale H. Dentlinger, attached as Exhibit 1 to Memorandum in Support of Defendants’ Rule 12(b)(7) Motion to Join Necessary Parties, filed April I6, 2004, ¶ 19 ("Replacing an ATM is not simple. For

Case 1:03-cv-11206-MEL Document 163 Filed 09/15/2005 Page 6 of 8
Finally, it merits observation that the legally unsupported arguments Defendants m ak
Argument I of their Reply are directly at odds with legal positions they previously submitted
DOJ. In January 2005, Cardtronics LP ("Cardtronics") submitted to DOJ a response to I)()J’
September 2004 Advance Notice of Proposed Rulemaking ("ANPRM") regarding the revi!;e~
ADAAG.25 Cardtronics’s legal positions taken in that submission contrast with the positions
Defendants’ Reply in the following significant respects:
*Defendants insist in the Reply that ATMs do not fall within the definition of "facilities." In its submission to DOJ, Cardtronics acknowledged that ATMs fall within the definition of"facilities" and specifically urged DOJ to include a safe harbor for ATMs that are compliant with the current ADAAG when it issues regulations applicable to the new ADAAG.26
*Defendants insist in the Reply that the new construction mandate does not apply to ATMs at all, even when they are buiIt-in. In its submission to DOJ, Cardtronics acknowledged that the ADAAG is "intended to implement the ADA requirements applicable to the design, new construction, and alterations of facilities and will directly apply only to fixed equipment - equipment that is built into the structure of the facility - and not to portable or movable (so called free standing) equipment," and urged DOJ to make this clear.27
*Defendants insist in the Reply that Section 12183 of the ADA must not apply to ATMs since it refers to "certificates of occupancy" as a triggering event for coverage under the new construction mandate and ADAAG. In its submission to DO J, Cardtronics acknowledged that "first use" (Plaintiffs have used analogous "first deployed" terminology) is the triggering event for ATMs.28
The Court should reject the late and mistaken view Defendants now offer to the Court of their
obligations under ADAAG and the ADA’s new construction mandate.
security reasons, ATMs, which, on average, contain $5,000 to $10,000 in their cash vault, are typicaIIy embed.de~ wails or floors so that they cannot be easily carted away .... Additionally, the ATMs are hard-wired into the merchant’s electricaI and telephone systems."). 25 See Exhibit B. ~6 Id.at CARD000474-75 ("Cardtronics believes Option I - providing a safe harbor for compliant elements -- i:~ ~:h only approach that makes sense. Although the revised ADA Standards would presumably not apply to existing facilities, including ATMs, the continuing obligation of public accommodations to remove communication barrie in existing equipment, will remain a source of continuing confusion and litigation unless there is some clear direction of what, at a minimum, that obligation entails.") (emphasis added). ~7 Id. at CARD000474. 2s See id. at CARD000473.

Case 1:03-cv-11206-MEL Document 163 Filed 09/15/2005 Page 7 of 8
Conclusion
For these reasons, and for the reasons set forth in Plaintiffs’ Opposition to Defenda:nt~
Cross-Motion for Summary Judgment on Plaintiffs’ Claims Under the Americans with
Disabilities Act, Plaintiffs’ request that this Court deny Defendants’ Cross-Motion for Stm:~m
Judgment.
Respectfully submitted,
COMMONWEALTH OF MASSACHUSETTS, By its Attorneys,
THOMAS F. REILLY ATTORNEY GENERAL
.......
Patricia Correa, BBO No. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919
Dated: September 15, 2005

Case 1:03-cv-11206-MEL Document 163 Filed 09/15/2005 Page 8 of 8

CERTIFICATE OF SERVICE

I, Patricia Correa, hereby certify that on this 15tu day of September, 2005, I served th within document via first-class mail, postage prepaid (with attachments) and via e-mail (witI attachments) on the following counsel of record:

Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@browngold.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver
Christine M. Netski, Esquire Sugarman, Rogers, Barshak, & Cohen, P.C. 101 Merrimac St. Boston, MA 02114-4737 netski@srbc.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes, Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe.kociubes@bingham.com Attorney for Defendants, E’Trade Access, Inc. and E’Trade Bank
Douglas P. Lobel, Esquire David A. Vogel, Esquire Arnold & Porter 1600 Tysons Boulevard, Suite 900 McLean, VA 22102 douglas_lobel@aporter.com david_vogel@aporter.com Attorneys for Defendants, E’Trade Access, Inc. and E’Trade Bank

Patncia Correa

 
 Case 1:03-cv-11206-MEL Document 165 Filed 09/14/2005 Page 1 of 7

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L'NlTED STATES DISTRICT COCRT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF
MASSACHCSETTS, NATIONAL FEDERATION OF THE BLIND, INC" NATIONAL FEDERATION OF THE BLIND OF MASSACHUSETTS, INC" ADRIENNE ASCH, JENNIFER BOSE, THERESA JERALDI AND PHILIP OLIVER
Plaintiffs

CIVIL ACTION NO. 03-1206-MEL

v.

E*TRADE ACCESS, n-.C., E*TRADE BANK, CARDTRONICS, LP, and CARDTRONICS, INC,
Defendants

PRIVATE PLAINTIFFS' SURREPLY IN OPPOSITION TO DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT Plaintiffs submit this surreply to address an argument that was not presented by Defendants in their original cross-motion, that is inconsistent with Defendants' earlier position in this case and that is entirely unsupported by existing Jaw. 1 [n their reply brier, Defendants argue tor the very first time that ATMs are equipment and, theretore, the ADA's new construction and planned alteration mandate, 42 U.S.C. §12183. has no application to this dispute. In so arguing, Defendants are necessarily arguing Ihat ADAAG has no application to this case, Defendants are wrong, Both ADAAG and Section 12183 apply to this case.

Defendants' Reply also improperly raises arguments that are only relevant to Plaintiffs' Motion for Summary Judgment. See Reply, Sections IV, V and VI. Those arguments may be fully addressed at oral argument without a further written supplementation,

Case 1:03-cv-11206-MEL Document 165 Filed 09/14/2005 Page 2 of 7
Facilities that postdate ADAAG's effective date which fail to comply with ADAAG violate Section 121 83(a)(1 ), the new construction and planned alteration mandate. ADAAG addresses ATMs.2 Cardtronics has admitted that its ATMs were all installed after ADAAG's effective date 3 Hence, if Cardtronics' ATMs do not comply with ADAAG, it has violated Section 12183(a)(I).
ADAAG has no connection to any other part of Title 1Il of the ADA involved in this suit. Thus. by claiming that Count V is not proper, Cardtronics is asserting that ADAAG is irrelevant to this case. Either through a lack of candor or of understanding, Defendants do not explain this to the Court. This remarkable assertion represents a dramatic turnaround by the Defendants, who have not only insisted in prior pleadings that the relief the Court may grant to the PlaintitIs under the ADA is framed by ADAAG, bUI have asked the Court to stay this litigation while the relevant ADAAG is amended.
ADAAG and the new construction and planned alteration mandate have identically limited reach. Each is restricted to buildings and facilities· Indeed, ADAAG's tormal name is the ADA Accessibility Guidelines for Buildings and Faciiitie!;. As the preamble to ADAAG explains, the "guidelines are intended to address only that equipment that is fixed or built into the structure of the building."s Thus, toilets are covered, but bedpans are not; drinking fountains are covered, but pereolators are nol.6
2 28 C.F.R. §36.401, App. A., 4.34.5. 3 See Answer ofDef. Cardtronics to Private Pis.' First Reqs. For Admis., attached to Pis.' Reply in Support of its Motion for Partial Summary Judgment as Ex. I, No.4. 4 As the Access Board's web site explains with respect to "Frequently Asked Questions," ADAAG was "developed to gUide new construction and alterations undertaken by covered entities. The guidelines establish the minimum requirements for accessibility in buildings and facilities." W\'t~,jACC~SS-: board ,gov/adaag/aboutlFAQ. htm. 5 56 CF.R. 35414,15 (July 26, 1991) (Preamble to ADAAG). "28 CF.R. §36.401, App. A., 4.16 (toilets); 4.15 (water fountains).
2

Case 1:03-cv-11206-MEL Document 165 Filed 09/14/2005 Page 3 of 7
Similarly, as Colorado Cross-Disability Coalition7 makes clear, display racks and shehes that are t1xed are covered by ADAAG and, consequently, the new construction mandatt:, while equipment that is not t1xed or built into the building is covered neither by ADAAG nor the new construction and alteration mandate.g
As Defendants have repeatedly acknowledged in their earlier pleadings, ADA<\G expressly addresses the accessibility of ATMs under a provision entitled "Equipment fo' Persons with Vision Impairment," and specitlcaUy requires that "[i]nstructions and all information for use shall be made accessible to and independently usable by persons with vision impairments9 Thus, both the Access Board and the Department of Justice clear:y contemplated that ATMs would be covered by the new construction mandate - either as facilities themselves or as equipment that is tixed into the structure of the building.
And the Department of Justice was correct - at least as to these Defendants -that ATMs are equipment t1xed into the structures of buildings. Indeed, Defendants have represented to this Court that their ATMs are "typically physically embedded in walls 01 floors so that they cannot easily be removed ... and are hard-wired into a stores' [sic] electrical system and telephone lines... :,10 To support this assertion, Defendants even submitted the sworn testimony ofMr. Dentlinger, the President ofE*TRADE Access, Inc. And the Court must surely recall Mr. Lobel's dramatic oral argument in support of the Defendants' Rule l2(b)(7) motion, where he invoked the specter of unsuspecting
344 F Supp.2d 707 (D. Colo, 2004) 'Colorado Cross-Disabilil)! Coalition, 344 F. Supp.2d at 712-714. ') 28 C,F,R, §36.40 I, App. A., 4.34.5. ,0 Mem. in Support of Defendants' Rule 12(b)(7} Motion to Join Necessary Parties at 6.
3

Case 1:03-cv-11206-MEL Document 165 Filed 09/14/2005 Page 4 of 7
nonparty merchants having ATMs ripped from the walls pursuant to a court order, leaving gaping holes in their stores.; 1
Defendants now argue, however, more than a year after Mr. Dentlinger submitkd his declaration, that because ATMs are "manufactured," not "constructed," and "used" not "occupied," they fall outside the scope of Section 12183 of the ADA. Defendants, if correct, would gut ADAAG of fixed equipment. For example, urinals afe manufactured, not constructed, and used, not occupied. Nonetheless, urinals are governed by ADAAG and the new construction mandate. 12 Defendants' cramped view of the reach of Section 12183 would similarly exclude all other fixtures that, like ATMs, are currently covered by ADAAG, e.g., wheelchair lifts,u lavatory mirrors,14 fixed storage facilities like shelves, cabinets, closets and drawers, 15 and telephones. 16 Each of these items, too, are manufactured and used, 110t constructed and occupied.
Defendants also argue that the use in the implementing regulations of phrases thd seem not to apply to ATMs, such as "dates of first occupancy" and "structural impracticability of the terrain," demonstrates that ADAAG must not apply to ATMs. Again, this interpretation would doom the ADAAG requirements for sinks, 17 which generally do not have dates of first occupancy, and bathtubs, which, when inside a
I; At the hearing on February! i, 2005, on the Motion for Judgment on the Pleadings., Mr. Lobe! again made reference to "existing machines in the walls of various banks:' Tr. p. 7 (2/ll/05). " See 28 C.F.R. §36.401, App. A., 4.18. IJ 28 C.F.R. §36.401, App. A., 4.11. 14 28 C.F.R. §36.401, App. A., 4.19.6. "28 C.F.R. §36.401, App. A., 4.25. 16 28 C.F.R. §36.40 I, App. A., 4.31 "28 C.F.R. §36.401, App. A., 4.24.
4

Case 1:03-cv-11206-MEL Document 165 Filed 09/14/2005 Page 5 of 7
building, generally do not present any more issues concerning the impracticality of the terrain than do ATMs. 1&
As mentioned. this is the very first occasion in this litigation on which the Defendants have taken this position. Defendants did not argue in any of their motions t} dismiss that Count V - the new construction and alterations mandate - had no application to this case. Defendants did not even make that argument in their opposition to Plaintiffs' pending Motion for Partial Summary Judgment on Count V, even though it would have been responsive and apt (unlike its inclusion in their reply to their own motion for summary judgment that did not raise this issue). Rather, they have waited until the eleventh hour to make an argument that is unsupported by existing law and would be a frivolous extension of existing law. There can be no purpose in doing so other than to attempt to create further confusion and delay.
Moreover, the expediency of Delendants' decision to jettison ADAAG as inapplicable to this case is breathtaking. Defendants persuaded this Coun to stay discovery in this case and put off resolving discovery disputes because, they said, they were going to tile a Rule J2(c) motion that would establish that this case is controlled bl' the requirements of ADAAG and that Plaintiffs have not sought any relief that accords with ADAAG. Defendants then filed that motion and, at the hearing, defense counsel, with reference to ADAAG said, "it's undisputed that these regulations and these guidelines are dispositive in the sense that compliance with the guidelines is compliance
IE 28 C.F.R. §36.401, App. A., 4.20. Interestingly, although the Defendants rely on the "implementing regulations" to 42 U.S.c. §12 183. Def. Reply Brief at 5, and cite to 28 C.F.R. §36.401, they conveniently tail to alert the Court that Appendix A to the New Construction and Alterations regulations is ADAAG, or that ADAAG specifically has provisions applicable to ATMs. See 28 C.F.R. §36.401, App. A., 4.34.
5

Case 1:03-cv-11206-MEL Document 165 Filed 09/14/2005 Page 6 of 7

with the ADA." (Tr. P.9 211 1105). Plaintiffs agree, and that has been and still is the ba,is for PlaintitTs' Motion for Partial Summary Judgment as to Count V.
For these reasons, and for the reasons sct forth in Plaintiffs' Opposition to Defendants' Cross-Motion for Summary Judgment on Plaintiffs' Claims Under the Americans \vith Disabilities Act, Plaintiffs' request that this Court deny Defendants' Cross-Motion lor Summary Judgment.
NFB, NFB-MASSACHUSETTS AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,

DATED: September 14,2005

Daniel F. Goldstein Sharon Krevor- Weisbaum Brown. Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030

//]
1c:;({.cJi

L

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JI/lt: ~

Anthony M. Doniger, BBO No. 129420

Christine M. Netski. BBO No. 546936

Sugarman, Rogers, Barshak & Cohen, P.C.

101 Merrimac Street

Boston, MA 02114-4737

(617) 227-3030

6

Case 1:03-cv-11206-MEL Document 165 Filed 09/14/2005 Page 7 of 7

CERTIFICATE OF SERVICE

I, Christine M. Netski, hereby certify that on September 14, 2005 1 served the within document via electronic mail and first-class mail, postage prepaid on the following counsel of record:

Patricia Correa, Esq uire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 patty.correa@ago.state.ma.us Attorney for Plaintiff, Commonwealth of 'v1assachusett5
Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@browngold.com Attorneys for Plaintitfs, National Federation of the Blind. Inc.. National Federation of Blind of Massachusetts. Inc., Adrienne Asch. Richard Downs, Theresa Jeraldi and Philip Oliver

Joseph L. Kociubes. Esquire Rachel Splaine Rollins, Esqui re Jenny K. Cooper. Esquire Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 joe.kociubes@bingham.com rachel.rollins@bingham.com jenny.cooper@bingham.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank
Douglas P. Lobel, Esquire David A. Vogel, Esquire Arnold & Porter 1600 Tysons Boulevard Suite 900 McLean, V A 221 02 douglasJobel@aporter.com david_ vogel@aportcr.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank

Christine M. !>ietski

3674113 J
7

 
 Case 1:03-cv-11206-MEL Document 167 Filed 10/11/2005 Page 1 of 7
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS et al., Plaintiffs,
Vo
E’TRADE ACCESS, INC. et al., Defendants.

Case No. 03 11206 MEL

DEFENDANTS’ RESPONSE TO NEW EVIDENCE AND LEGAL AUTHORITIES FIRST INTRODUCED BY PLAINTIFFS AT THE OCTOBER 6, 2005 ORAL ARGUMENT At oral argument on October 6, 2005, Plaintiffs presented new evidence and new legal authority regarding their claim that ATMs are the "facility for first occupancy" governed by ADA § 12183 (a)(1). Plaintiffs submitted to the Court and Defendants a "Building Permit" from the Town of Framingham, Massachusetts. Plaintiffs argued that this permit proves that an ATM is a "facility" that can be "occupied" and thus is independently subject to § 12183(a)(1). Plaintiffs further supported their argument by citing new legal authority, Mass. ch. 143 § 3L, for the proposition that ATMs may be the subject of"building permits." Finally, Plaintiffs cited definitions of the term "facility" that Plaintiffs argued, wrongly, define the phrase "facility for first occupancy" used in § 12183(a)(1). 1. The Framingham Building Permit Supports Defendants’ Argument. Plaintiffs are in denial. The Framingham building permit that Plaintiffs presented in Court proves Defendants’ point -- that the term "facility" as applied to § 12183 (a)(1) means a building plus its equipment, and does not mean the equipment (here, an ATM) by itself.

742858 1.DOC

Case 1:03-cv-11206-MEL Document 167 Filed 10/11/2005 Page 2 of 7
As prior briefs established, the regulations implementing § 12183 (a)(1) measure the date of a facility’s "first occupancy" based on, among other things, the date a building permit was issued. Plaintiffs argue that ATMs can be the subject of building permits and, thus, ATMs can meet the regulatory definition of "facilities for first occupancy." Plaintiffs claim the Framingham building permit is an example of such a building permit issued for an ATM.
The Framingham building permit is nothing of the sort. The permit on its face says its purpose is to authorize a Framingham bank to "add ATM machine inside bank." Its title is "building permit," and its stated purpose is to allow the bank (a building) to be altered to include an ATM. The permit’s second page is related exclusively to the building itself, showing its owner, its value (nearly $900,000 -- orders of magnitude more than the value of an ATM), its "structures" (built in 1964, in fact), and its "other information" (none of which references the ATM). This "building permit" is clearly addressed to the building, not the ATM. Consequently, far from supporting Plaintiffs’ argument that an ATM can be the subject of a building permit, this new evidence directly rebuts Plaintiffs’ argument. 1
The Framingham building permit also shows the fundamental legal error Plaintiffs make regarding their motion for partial summary judgment. Plaintiffs admitted at oral argument that their motion arises solely under § 12183(a)(1) ("new construction") and not § 12183(a)(2) ("alterations" to facilities). To justify their argument that an ATM is the "facility for first occupancy" subject to § 12183(a)(1), Plaintiffs argued that the date of the "design and
1 Plaintiffs argued that an ATM affixed to a building presents "two facilities" under § 12183(a)(1) -- (1) the building and (2) the ATM. That shocking argument is not supported by any case, and it reads out of existence the phrase in the statute "for first occupancy." There is only one facility capable of"first occupancy," the building/ATM combination. It is governed by § 12183 (a)(1) only if the building/ATM combination was "de signed and constructed" after January 1993.
-2-

Case 1:03-cv-11206-MEL Document 167 Filed 10/11/2005 Page 3 of 7
construction" of an ATM "facility" is the date the ATM is installed in a building. The Framingham building permit proves the Plaintiffs have it all wrong. The date the ATM is "added" to the building (using the terms of the permit) is the date that the building is "altered." Thus, the addition of the ATM to this bank in Framingham made the ATM subject to the ADA not under § 12183(a)(1) (new construction), but instead, if at all, under §12183(a)(2), as an alteration of the facility after 1993. Even if this ATM were one of Defendants’ ATMs (which Plaintiffs do not even argue), it could not fall within the scope of Plaintiffs’ summary judgment motion based solely on § 12183 (a)(1). Furthermore, because the Framingham building permit was issued in May 1999, it falls well outside the three-year statute of limitations of any claim under § 12183(a)(2).
2. Massachusetts Law ch. 143 § 3L Also Supports Defendants. Plaintiffs’ reliance at the oral argument on Mass. ch. 143 § 3L is equally misleading. Plaintiffs claim that § 3L permits ATMs to be the subject of building permits. Chapter 143 generally governs buildings. It is entitled "Inspection and Regulation of, and Licenses for, Buildings, Elevators and Cinematograph." It defines a "building" as "a combination of any materials, whether portable or fixed, having a roof, to form a structure for the shelter," including "part or parts thereof." Id § 1. The ATM therefore is a "building" under this law only if the ATM is made a "part" of an occupied structure. Ignoring this part of Chapter 143, Plaintiffs contend that § 3L authorizes localities to require building permits for the installation of ATMs. But § 3L does not stand for the conclusion Plaintiffs assert. Section 3L merely authorizes local authorities to grant permits "relative to the installation, repair and maintenance of electrical wiring and electrical fixtures used for light, heat and power purposes in buildings and structures." Assuming the addition of
-3-

Case 1:03-cv-11206-MEL Document 167 Filed 10/11/2005 Page 4 of 7
an ATM falls within this scope, any permit authorized by § 3L is not a building permit for an ATM, it is a permit to alter a building so that the building can have an ATM. This Massachusetts law does not support Plaintiffs’ absurd notion that an ATM is itself a "facility for first occupancy" under § 12183 (a)(1); the installation of an ATM would fall under § 12183 (a)(2) as an "alteration" to a building or structure.
3. Regulatory Definitions Of "Facility" Do Not Define The More Limited Phrase "Facility For First Occupancy."
Another new argument Plaintiffs raised at the oral argument was that regulatory definitions of the term "facility" are broader than just buildings and can encompass things like mobile trucks, so that ATMs too can fall within the meaning of"facility."
Plaintiffs’ arguments fail because no regulation expressly or solely interprets the phrase "facility for first occupancy" that is used in § 12183(a)(1). The term "facility" appears elsewhere in the ADA without the limiting modifier "for first occupancy." The regulations on which Plaintiffs rely define the term "facility" as it is used throughout all of Titles II and III of the ADA, not just to one section of Title III. Thus, the general definition of"facility" is not persuasive in defining the scope of the more restricted phrase contained in § 12183 (a)(1).
Plaintiffs’ use of the general definitions to define the limited scope of § 12183(a)(1) is as misguided as their mistaken argument that the ADAAG and § 12183(a)(1) are synonymous. Just because an ATM falls within the scope of the ADAAG does not mean that an ATM must be within the scope of § 12183. The ADAAG implements far more than just § 12183(a)(1); for example, an ATM could be affixed after 1993 to an older building and thus fall under § 12183(a)(2); or the ATM could be the subject of a claim under § 12182(b)(2)(A)(iv) ("removal of communication barriers"). Plaintiffs themselves argued that the ADAAG has this
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Case 1:03-cv-11206-MEL Document 167 Filed 10/11/2005 Page 5 of 7
broader applicability beyond § 12183 (a)(1). Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment at 6.
The Court should therefore reject the Plaintiffs’ continuous reliance on the broader definitions of the term "facility" where the definitions are not implementing the phrase from § 12183 (a)(1); instead, the Court should rely on the legislative history, implementing regulations, and case law all construing and limiting the scope of the term "facilities" in § 12183(a)(1).
Respectfully submitted, CARDTRONICS, LP AND CARDTRONICS, INC. By their attorneys,
/s/Douglas P.Lobel Douglas P. Lobel David A. Vogel
ARNOLD & PORTER LLP
1600 Tysons Boulevard McLean, Virginia 22102 (703) 720-7000 Joseph L. Kociubes BBO # 276360 Jenny K. Cooper BBO # 646860 B~NG~dV~ MCCUTC~N LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
-5-

Case 1:03-cv-11206-MEL Document 167 Filed 10/11/2005 Page 6 of 7
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS et al.,
Plaintiffs,
Vo
E’TRADE ACCESS, INC., et al.,
Defendants.

Case No. 03 11206 MEL

CERTIFICATE OF SERVICE Douglas P. Lobel, hereby certify that I have, this 1 lth day of October 2005,

caused a true and accurate copy of Defendants’ Response To New Evidence And Legal

Authorities First Introduced By Plaintiffs At The October 6, 2005 Oral Argument, to be

served via electronic and first class mail, upon the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 0atty.correa(~a~o.state.ma.us A ttorneyfor Plaintiff Commonwealth of Massachusetts
Anthony M. Doniger, Esquire Christine M. Netski, Esquire Sugarman, Rogers, Barshak & Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 doni~er(~srbc.com netski(~srbc.com A ttorneysfor Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of ~[assachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Ofiver

Joseph L. Kociubes, Esquire Jenny K. Cooper, Esquire Bingham & McCutchen LLP
150 Federal Street Boston, MA 02110 j oe.kociubes(~bingham.com
.i enny.coo0er(~bin~ham.com A ttorneysfor Defendants,
E’Trade Access, Inc., E’Trade Bank, Cardtronics, LP and Cardtronics, Inc.

742858 1.DOC

Case 1:03-cv-11206-MEL Document 167 Filed 10/11/2005 Page 7 of 7 Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaum, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg(~browngold.com skw(~brown~old.com Attorneys for Plaintiffs, National Federation of the B#nd, Inc., National Federation of B#nd of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip O#ver
/s/Douglas P. Lobel Douglas P. Lobel
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 Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et af.,
v. E*TRADE ACCESS, INC., et af.,

) ) ) ) Plaintiffs, )
) ) ) ) Defendants. )

CASE No. 03 11206 MEL

----------------------------)

DEFENDANTS' SUBMISSION OF SUPPLEMENTAL EVIDENCE IN SUPPORT OF DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

Defendants E*TRADE Bank, E*TRADE Access, Cardtronics LP and

Cardtronics, Inc. respectfully submit the interrogatory responses of Plaintiff Commonwealth of

Massachusetts (attached hereto as Exhibit 1) as supplemental evidence in support of Defendants'

Cross-Motion for Summary Judgment. The Commonwealth's responses also further justify that the Court should deny Plaintiffs' motion for partial summary judgment This submission of

supplemental evidence is timely filed, because Defendants received the Commonwealth's interrogatory responses only yesterday, December 22,2005.
The Commonwealth's responses make one point vividly clear, over and over: The only change ofDefendants' ATMs the Commonweolth seeks is voice-guidance technology, even though the Court expressly held that the Plaintiffs are not entitled to that relief.

Despite numerous requests and opportunities to identify any other accommodation that would

satisfy the Commonwealth, the Commonwealth refuses to do so. For example:

• When asked to identify the "modifications" to Defendants' "policies," the only specific suggestion the Commonwealth makes is that Defendants should use "voice guidance." Response to Interrogatory No. 11 (page 12).

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 2 of 22
• When asked to identify how "barriers" can be "removed" at ATMs for blind people, the only specific suggestion the Commonwealth makes is again "voice guidance." Response to Interrogatory No. 13 (page 13).
• When asked to identify every "aid, device or capability" that other bank's ATMs use to afford access to blind people, the Commonwealth identified only voice guidance. Response to Interrogatory No. 16 (page 16).
• The Commonwealth generically refers to use of "non-visual formats" or "non-visual translation" of information for blind users of ATMs. See Responses to Interrogatories Nos. 2, 11, 12, 13 & 16. The Commonwealth is already on record that it finds Braille (information formatted for touch) to be completely inadequate. See Third Amended Complaint, -,r 29. Therefore, unless the Commonwealth believes that ATMs can be operated through the sense of smell, the only other possible "format" to which the Commonwealth can be referring is audio (voice) infonnation.
The Commonwealth's inability or refusal to identify any other change to ATMs, other than the change that this Court has already ruled is not a permissible remedy, entitles the Defendants to
summary judgment, as explained in detail in Defendants' briefs in support of their Motion.
The Commonwealth's responses also confirm that the Commonwealth has not satisfied its burden for a claim under ADA § 12182(b)(2)(A)(ii), regarding "reasonable
modifications" of "policies, practices and procedures" (Plaintiffs' Count II). The First Circuit
expressly required that any lawsuit under this ADA section must be preceded by a request from
the Plaintiffs to the Defendants for a change in their policies -- what Plaintiffs jocularly derided
at oral argument as a "pre-filing requirement." Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1 st Cir. 2003). Defendant Cardtronics asked the Commonwealth to identify every request for a change in Defendants' policies (as opposed to a change in the physical design of the
ATMs). The only responsive "request" the Commonwealth identified was a "suggestion" in one oftheir briefs during the lawsuit, filed in the Summer of2005. See Response to Interrogatory
No.9 (page 10).1 Obviously, that does not come close to satisfying the First Circuit's
The Commonwealth's response also identified requests, prior to the lawsuit, for E*TRADE to change the design of the ATMs. But Plaintiffs previously explained that their claim under ADA § 12182(b)(2)(A)(ii) relates to
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Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 3 of 22
requirement. The Commonwealth's inability to identify any request prior to the lawsuit proves that Defendants are entitled to summary judgment on the Commonwealth's claim under ADA § 12182(b)(2)(A)(ii).
Finally, the Commonwealth's responses prove that the Court should deny the Plaintiffs' motion for partial summary judgment. The Commonwealth's interrogatory responses provide no explanation of what changes Defendants could make to their ATMs, other than voiceenabled technology, that would satisfy the Commonwealth's claims. As a result, if the Court issues the broad injunction the Commonwealth demands in the Plaintiffs' motion, Defendants will have no idea how to obey it. For the reasons Defendants argued in their Opposition to the Plaintiffs' motion, the law does not permit such a vague, unenforceable injunction to be issued.
These responses to Cardtronics' interrogatories reveal the Commonwealth's flawed intentions. The Commonwealth is still obstinately detennined to force Defendants to implement voice-enabled technology at their ATMs, despite the fact that the Court already held that the Commonwealth is not entitled to that relief under the current regulations implementing the ADA. (The relief the Commonwealth desires is coming, when the Department of Justice finalizes the new implementing regulations that will require exactly what the Commonwealth seeks. The Commonwealth will merely have to wait for these new regulations take effect, and no reason exists that Defendants should be singled out of the entire ATM industry to implement the regulations in advance of their competitors -- especially in an industry with so many competitors and such narrow profit margins.) The Commonwealths' interrogatory responses
banking "policies," not to the design of the ATMs. see PI. Opp. to Def. Cross-Mo. for Summ. ludg., at 6·7. Therefore, the requests to which the Commonwealth refers are not evidence that would satisfy the Dudley standard for the Commonwealth's claim under § lZ18Z(b)(Z)(A)(ii) as the Plaintiffs articulate it.
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Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 4 of 22
prove that this lawsuit is a charade, devoid of any validity under the current regulations, entitling the Defendants to summary judgment on all counts.
Respectfully submitted, E*TRADE ACCESS, INC., E*TRADE BANK and CARDlRONICS LP

Dated: December 23,2005

David A. Vo~el (pro hac vice) ARNOLD & ~ORTER LLP 1600 Tysons Boulevard, Suite 900 McLean, Virginia 22102 (703) 720-7000
Joseph L. Kociubes BBO # 276360 Jenny K. Cooper BBO # 646860
BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000

-4-

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 5 of 22

CERTIFICATE OF SERVICE I hereby certify that I have, this 23rd day of December, 2005, served Defendants' Submission Of Supplemental Evidence In Support Of Defendants' Cross-Motion For Summary Judgment by causing copies ofthe same to be sent via electronic mail and via U.S. first-class mail, postage prepaid, to:

Patricia Correa, BBO No. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919

Anthony Doniger, BBO No. 129420 Christine M. Netski, BBO No. 546936 SUGARMAN, ROGERS, BARSHAK & COHEN 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030
Daniel F. Goldstein Sharon Krevor-Weisbaum BROWN. GOLDSTEIN & LEVY LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 6 of 22
EXHIBIT 1

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 7 of 22
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
. . . . . . .. . .. . . . . . . . . . . . . .
COMMONWEALTH OF MASSACHUSETTS, • et al.
Plaintiffs, Civ. Action No. 03..11206..MEL
v. E*TRADE ACCESS. INC. et al.
Defendants.
COMMONWEALTH'S RESPONSES TO DEFENDANT CARDTRONICS'S FIRST SET OF INTERROGATORIES TO PLAINTIFF COMMONWEALTH OF MASSACHUSETTS In accordance with Fed. R. Civ. P. 26 and 33, the Commonwealth hereby submits its responses to the Defendant Cardtronics's First Set of Interrogatories to Plaintiff Commonwealth of Massachusetts. The Commonwealth reserves its right to supplement these responses. DEFINITIONS 1. "Commonwealth" refers to plaintiff the Commonwealth of Massachusetts. 2. "NFB" refers to the National Federation of the Blind, Inc. 3. "Cardtronics" refers to defendants Cardtronics, Inc. and Cardtronics LP. 4. "Allied lawyer doctrine" refers to the doctrine variously so called or alternatively called the "common interest doctrine" or "joint prosecution doctrine," that extends the protection of the work product doctrine and attorney-client privilege to such information shared between co-plaintiffs or other allied parties. GENERAL OBJECTIONS The Commonwealth's responses to the Interrogatories are subject to the following

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 8 of 22
General Objections: 1. The Commonwealth objects to the Instructions and Definitions of Defendant
Cardtronics' First Set of Interrogatories to Plaintiff Commonwealth of Massachusetts to the extent they purport to create obligations by the Commonwealth that exceed those established by the Federal Rules of Civil Procedure and Local Rules ofthe District of Massachusetts.
2. The Commonwealth objects to the interrogatories to the extent they seek information within the sole custody and control of Massachusetts state agencies other than the Attorney General's Office as being beyond the scope of permitted discovery, overly broad, and unduly burdensome.
3. The Commonwealth objects to the interrogatories to the extent they seek information concerning ATMs located outside of Massachusetts, or consumer or blind people located outside of Massachusetts. INTERROGATORIES AND RESPONSES Interrogatory Number 1:
Identify every person (other than counsel) who contributed any information or document used to respond to any Interrogatory andlor Document Request, and describe that person's contributions. Specific Objection and Response to Interrogatory Number 1:
The Commonwealth objects to this Interrogatory to the extent that it seeks information protected by the work product and/or allied lawyer doctrine. Subject to and without waiving the foregoing General and Specific Objections, each such person or document is identified in the Commonwealth's responses that follow or identified generally in the Commonwealth's privilege log.
2

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 9 of 22
Interrogatory Number 2: For each and every Disputed ATM, identify the reason(s) that you contend it is not
"independently usable" by blind people, including whether any aid intended for blind users (such as Braille, voice technology, and so forth) is missing, inoperable, incomplete, or insufficient, and identify all persons with knowledge of the facts you describe in your response. Specific Objections and Response to Interrogatory Number 2:
The Commonwealth objects to this interrogatory on the ground that much of the information needed to answer it continues to lie in the sole custody and/or control of the Defendants, despite the fact that Plaintiffs' have sought information that would be responsive to this interrogatory for an extensive period of time.
Subject to and without waiving the foregoing General and Specific objections, the Commonwealth states that it has conducted testing at three Disputed ATMs in Massachusetts. Its findings are summarized in the Affidavits of Jennifer Bose and Nicholas P. Paras served on the Defendants in connection with the Plaintiffs' Motion for Partial Summary Judgment Against Defendants Cardtronics, LP and Cardtronics, Inc. The Commonwealth incorporates by reference the responsive information contained in those Affidavits as to those Disputed ATMs. It also incorporates by reference the bases for its contention that the Disputed ATMs are not independently useable that are set forth in the Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment Against Defendants Cardtronics, LP and Cardtronics, Inc. and the Plaintiffs' Memorandum in Reply to Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment. The Commonwealth further states that, as set forth in those pleadings, the tested ATMs were not independently useable by blind people because they communicated critical and essential instructions and information for use through visual screen prompts that
3

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 10 of 22
were not, in turn, translated into any non-visual fonnat. Ms. Bose and Mr. Paras are knowledgeable with respect to those three Disputed ATMs. On infonnation and belief, various Cardtronics representatives are knowledgeable about the failure of the Disputed ATMs to translate the critical and essential instructions and infonnation for use contained in visuallydiscerned screen prompts into a non-visual fonnat. In addition, and as set forth in those pleadings, the Defendants did not come forth with any competent evidence that the Disputed ATMs translate visually-discerned screen prompts containing critical and essential instructions and infonnation for use into any non-visual fonnat in responding to Plaintiffs' Motion for Partial Summary Judgment Against Defendants Cardtronics LP, and Cardtronics, Inc.
In addition, based upon the (incomplete) discovery supplied by the Defendants to the Plaintiffs to date, it appears that in Massachusetts, it was the Defendants' practice to sell to merchants and and then operate, or both own and operate, a number of Triton 9500s, Triton Makos, Triton 9100 base models, and early models of the Triton 9600 series. Pursuant to Fed. R. Civ. P. 33(c), see the documents produced by the Commonwealth for a partial inventory of such ATMs, based on infonnation supplied by the Defendants to the Commonwealth to date. According to a representative of Triton's parts and sales department (name unknown) Attorney General's Office Paralegal Bethany Brown reached through the company's 1-800 number and infonnation contained on that company's web-site, these models do not offer audio capability. In addition, it appears, based on the sampling of Disputed ATMs the Plaintiffs have tested to-date (which are described in the Affidavits they submitted in support of their Motion for Partial Summary Judgment now pending before the Court), the Defendants do not engage in any practice of otherwise translating (i.e., at ATMs that are not audio-enabled) critical and essential instructions and information necessary for independent use contained in visually-discerned
4

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 11 of 22
screen prompts into any non-visual format, and thus it is reasonable to conclude that the Defendants did not do so with respect to the ATMs identified in the documents produced by the Commonwealth.
Moreover, it appears that Defendants own andlor operate newer model ATMs in Massachusetts that are audio-enabled and could or should have been equipped with adequate audio instructions and information for use to afford blind people independent use, but were not. In December 2005, Attorney General's Office paralegal Bethany Brown visited a Cardtronics ATM located at Terminal C of Boston Logan International Airport (on information and belief, this was an ATM manufactured by NCR). She found that the audio instructions and information for use were limited to the following: the ATM audibly instructed her to enter her "secret number" at the inception of the transaction. At the conclusion, the ATM audibly asked her to wait while it processed her transaction. It then said, "Thank you for banking with us." The ATM did not offer any non-visual translation of any of the other visually-discerned screen instructions and information necessary for use, and she relied exclusively on the visually-discerned screen instructions and information for use to complete a balance inquiry. Interrogatory Number 3:
Identify every Disputed ATM that one or more blind residents of Massachusetts currently uses (whether or not independently).
5

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 12 of 22
Specific Objections and Response to Interrogatory Number 3: The Commonwealth objects to this interrogatory on the ground that it is ambiguous, not
reasonably calculated to lead to the discovery of admissible evidence, and unduly burdensome. Subject to and without waiving the foregoing General and Specific Objections, the Commonwealth states that the Attorney General's Office does not have custody and/or control of this infonnation. It also states that the Defendants own and/or operate over 700 ATMs in Massachusetts at locations to which potential consumers are likely to go, on a one-time basis or from time-to-time, and where they may wish to obtain cash. These include the restaurants, convenience stores, retail stores, phannacies, and gas stations of such companies as Amerada Hess, Costco, Duane Reade, CVS, ExxonMobil, Ride Aid. Sunoco, Walgreens, A&P, Bloomingdale's, R.H. Macy and Company, and Sears Roebuck and Company, where Disputed ATMs are found. Blind consumers, like sighted ones, require cash for day-to-day living and would benefit from the convenient access of Defendants' ATMs, were those ATMs to offer instructions and infonnation for use in a non-visual format and thus be accessible to blind consumers. Interrogatory Number 4:
Identify every Disputed ATM that is likely to be used independently by at least one blind resident of Massachusetts if you prevail in this lawsuit, and for each Disputed ATM, identify each blind resident of Massachusetts who is likely to use that Disputed ATM, the frequency of that likely use, all facts supporting the contention that the blind resident of Massachusetts is likely to use that Disputed ATM, and identify all persons with knowledge of the facts you describe in your response.
6

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 13 of 22

Specific Objections and Response to Interrogatory Nnmber 4:

The Commonwealth objects to this interrogatory on the ground that it is vague, not

reasonably calculated to lead to the discovery of admissible evidence, and unduly burdensome.

Subject to and without waiving the foregoing General and Specific Objections, the

Commonwealth states that the Attorney General's Office does not have custody and/or control

over this information. In addition, the Commonwealth incorporates by reference its Response to

Interrogatory Number 3.

Interrogatory Number 5:

Identify every blind resident of Massachusetts who is likely to use E*TRADE Bank's

banking services if you prevail in this lawsuit, and provide all facts supporting the contention

with regard to each blind resident of Massachusetts, and identify all persons with knowledge of

the facts you describe in your response.

Specific Objections and Response to Interrogatory Number 5:

The Commonwealth objects to this interrogatory on the ground that it is vague, not

reasonably calculated to lead to the discovery of admissible evidence, and unduly burdensome.

Subject to and without waiving the foregoing General and Specific Objections, the

Commonwealth states that the Attorney General's Office does not have custody and/or control

over this information. In addition, the Commonwealth states that, on information and belief,

E*TRADE Bank's business model, that is, of existence as a cyberbank that provides consumers

its banking services from the convenience of their home computers, is one that blind consumers

would enjoy, were the Disputed ATMs to offer instructions and information for use in a non-

i
visual format and therefore be accessible to blind consum~rs.

I

I

Interrogatory Number 6:

:

7

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 14 of 22
State every individual fact that supports your contention that the Commonwealth of Massachusetts has organizational standing, including facts that the Commonwealth of Massachusetts has been directly harmed by Cardtronics' and/or E*TRADE's alleged violations of the ADA, and identify all persons with knowledge of the facts you describe in your response. Specific Objection Response to Interrogatory Nnmber 6:
The Commonwealth objects to this interrogatory on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the forgoing General and Specific Objections, the Commonwealth states that it does not rely on organization standing as the basis for its standing. Interrogatory Number 7:
Describe every bank (or other ATM owner, lessor or operator) with whom the Commonwealth of Massachusetts communicated since January, 2001 seeking to have that entity's ATMs made accessible to blind users, and in your description identify the entity with whom you communicated, the time periods over which the communications occurred, the approximate number of both written and oral (e.g., phone or face to face) communications, and the resolution ofthe communications (e.g. settlement agreement, lawsuit, etc.), and identify all persons with knowledge of the facts you describe in your response. Specific Objections and Response to Interrogatory Number 7:
The Commonwealth objects to this interrogatory on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence and is overly broad, unduly burdensome, and seeks information beyond the scope of permitted discovery by seeking information that may be within the sole custody or control of Massachusetts state agencies other
8

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 15 of 22
than the Attorney General's Office. The Commonwealth also objects to this interrogatory to the extent it seeks information about the Commonwealth's communications with any of the Defendants in this action on the ground that the Defendants are already in possession of such information. Subject to and without waiving the foregoing General and Specific Objections, the Commonwealth states the Attorney General's Office is not aware of any current or former employee of that office who has had communications such as those that are the subject of this interrogatory, based on its reasonably diligent efforts to obtain information responsive to this interrogatory . Interrogatory Number 8:
State every individual fact that supports your contention that the Commonwealth of Massachusetts has representational or parens patriae standing, including facts that blind residents of Massachusetts are likely to use the Disputed ATMs if you prevail in this litigation, and identify all persons with knowledge of the facts you describe in your response. Specific Objections and Response to Interrogatory Number 8:
The Commonwealth objects to this interrogatory on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence and that it is vague. Without waiving the foregoing objections and the General Objections, the Commonwealth states that it has representational or parens patriae standing to bring this action in the public interest and on behalf of blind consumers in Massachusetts, as a matter oflaw. Interrogatory Number 9:
Identify every communication you made to E*TRADE andlor to Cardtronics requesting that E*TRADE andlor Cardtronics modify their policies, practices or procedures with regard to their public accommodations in order to make them accessible or more accessible to blind
9

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 16 of 22
residents of Massachusetts. Specific Objections and Response to Interrogatory Number 9:
The Commonwealth objects to this interrogatory on the ground that it seeks information also within the custody and control of the Defendants and is over broad, unduly burdensome, and seeks information beyond the scope of permitted discovery in seeking information that may be within the sole custody and/or control of Massachusetts state agencies other than the Attorney General's Office. Subject to and without waiving the foregoing General and Specific Objections, the Commonwealth states that the NFB and the Attorney General's Office wrote to E*TRADE in November 2002 asking it generally to make its ATMs accessible to blind people. In addition, in the Plaintiffs' Opposition to the Defendants' Cross-Motion for Partial Summary Judgment (which motion is now pending with the Court), the Plaintiffs suggested that the E*TRADE Bank might consider waiving, or the Court might order it to waive, its fee for blind customers who require use of other banks' accessible ATMs, given that the Defendants' ATMs are not accessible to blind consumers. Interrogatory Number 10:
Describe the manner(s) in which E*TRADE Bank's "policies" can or should be modified to accommodate blind customers, and the reasons that such modifications are both "reasonable" and would not "fundamentally alter" E*TRADE Bank's services (as those terms are used in § 121 82(b)(2)(A)(ii)), and identify all persons with knowledge of the facts you describe in your response. Specific Objections and Response to Interrogatory Number 10:
The Commonwealth objects to this interrogatory to. the extent that it calls for a legal conclusion. Subject to and without waiving the foregoing General and Specific Objections, the
10

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 17 of 22
Commonwealth states that E*TRADE Bank's policies, practices and procedures should be modified to afford equal access by blind consumers to the Bank's services, including fee-free banking at any ATM that is as functionally independently useable to blind consumers as to sighted ones. This modification - to provide equal access to E*TRADE Bank's banking services - would fall squarely within the banking services E*TRADE Bank offers and would therefore not fundamentally alter the nature of its services. How and whether that can be achieved "reasonably" depends on information now within the sole ,custody and control of the Defendants. Interrogatory Number 11:
Describe the manner(s) in which Cardtronics' "policies" can or should be modified to accommodate blind customers, and the reasons that such modifications are both "reasonable" and would not "fundamentally alter" Cardtronics' services (as those terms are used in § 12182(b)(2)(A)(ii», and identify all persons with knowledge of the facts you describe in your response. Specific Objections and Response to Interrogatory Number 11:
The Commonwealth objects to this interrogatory to the extent that it calls for a legal conclusion. Subject to and without waiving the foregoing General and Specific Objections, the Commonwealth states that Cardtronics' policies, practices and procedures should he modified so that blind consumers have access to all ATM instructions and information necessary for independent use in a format that is discernable through means other than visual means. This type of modification - to supply a non-visual translation of instructions and information for use now supplied at its ATMs through visually-discerned screen prompts - would fall squarely within the ATM services Cardtronics offers and would therefore not fundamentally alter the nature of its services. How and whether the modification can be achieved "reasonably" depends
11

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 18 of 22
on information now within the sole custody and control of the Defendants. However, on information and belief, factors such as those enumerated in the Commonwealth's Objection and Response to Interrogatory No.1 of the Commonwealth's Responses to Defendant E*TRADE Access, Inc.' s Second Set of Interrogatories to Plaintiff Commonwealth of Massachusetts (including, but not limited to, the Defendants' need to upgrade many or all of the Disputed ATMs to become Triple DES compliant and otherwise meet business and regulatory demands) will create, or should have created (to the extent any Disputed ATMs have, since the inception of this lawsuit, been upgraded or replaced), significant efficiencies in equipping many or all of the Disputed ATMs with voice guidance, which is one manner of translating visually-discerned screen prompts containing information and instructions necessary for use into a non-visual format. Interrogatory Number 12:
Describe every type of "auxiliary aid" (as that term is used in § 12182(b)(2)(A)(iii») that Cardtronics could or should provide at the Disputed ATMs to make them independently usable by blind people, and identify all persons with knowledge of the facts you describe in your response. Specific Objection and Response to Interrogatory Number 12:
The Commonwealth objects to this interrogatory to the extent that it calls for a legal conclusion. Subject to and without waiving the foregoing General and Specific Objections, the Commonwealth states that any translation into a non-visual format of instructions and information necessary for independent use now supplied at the Disputed ATMs through visuallydiscerned screen prompts would constitute such an auxilliary aid. Interrogatory Number 13:
12

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 19 of 22
Identify the "communication barriers structural in nature" at the Disputed ATMs and the methodes) by which Cardtronics could or should "remove" that barrier, and the reasons that at least one of those methods is "readily achievable" (as those terms are used in § 12182(b)(2)(A)(iv)), and identify all persons with knowledge of the facts you describe in your response. Specific Objection and Response to Interrogatory Number 13:
The Commonwealth objects to this interrogatory to the extent that it calls for a legal conclusion. Subject to and without waiving the foregoing General and Specific Objections, the Commonwealth states that the "communication barriers structural in nature" at the Disputed ATMs consist of the ATMs' construction and design to communicate instructions and information necessary for independent use through visually-discerned screen prompts. As Cardtronics upgrades or replaces the Disputed ATMs (or, to the extent it has already done so since the inception of this lawsuit, as Cardtronics has upgraded or replaced the Disputed ATMs) to comply with Triple DES or other business or regulatory demands, or adds (or has, since the inception of this lawsuit, added) new ATMs to its fleet, Cardtronics can and should assure (or could and should have assured) that those Disputed ATMs supply information and instructions for use in a non-visual format, by, for example, equipping the ATMs with voice guidance technology. As to the balance of its ATMs, the extent to which visually-detected screen instructions and information for use can be supplied to blind consumers in a non-visual format without much difficulty or expense currently depends on information within the sole custody and control of the Defendants. Interrogatory Number 14:
For each building in which any Disputed ATM is fixed, state the date of "first 13

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 20 of 22
occupancy" of that building (as that tenn is used in § 121 83(a)(I)), and identify all persons with knowledge of the facts you describe in your response. Specific Objections and Response to Interrogatory Number 14:
The Commonwealth objects to this interrogatory on the ground that it is vague and not reasonably calculated to lead to the discovery of admissible evidence, because the Disputed ATMs are "facilities" themselves under the applicable law and regulations. In the event that the Court issues a contrary ruling in connection with the pending motion and cross-motion for partial summary judgment, the Commonwealth will supplement this response as appropriate, subject to and without waiving the foregoing General and Specific Objections. Interrogatory Number 15:
For each building whose date of first occupancy was prior to January 1993 but which was altered to include an Disputed ATM after January 1993, state the date ofthe alteration (as those tenns are used in § 12183(a)(2)), and identify all persons with knowledge ofthe facts you describe in your response. Specific Objections and Response to Interrogatory Number 15:
The Commonwealth objects to this interrogatory on the ground that it is vague and not
reasonably calculated to lead to the discovery of admissiblie evidence, because the Disputed ATMs are "facilities" themselves under the applicable law and regulations. In the event that the Court issues a contrary ruling in connection with the pending motion and cross-motion for partial summary judgment, the Commonwealth will supplement this response as appropriate, subject to and without waiving the foregoing General and Specific Objections. Interrogatory Number 16:
Identify every aid, device or capability used by ATMs of other banks of which you are 14

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 21 of 22

aware that makes these ATMs independently usable by blind people, and identify all persons

with knowledge of the facts you describe in your response.

Response to Interrogatory Number 16:

To the Commonwealth's knowledge, and on information and belief, all, or virtually all, of

the numerous large and small banks with ATMs in Massachusetts that are independently useable

by blind people have translated their ATMs' instructions and information for use that are

otherwise presented visually into audio instructions and information for use, through utilization

of voice guidance technology. A small sampling of these banks includes Bank of America with

approximately 888 talking ATMs in Massachusetts (according to a listing Attorney General's

Office Paralegal Bethany Brown found on the web-site of the Disability Law Center of

Massachusetts ("OLC"), a copy of an excerpt of which is produced), Sovereign Bank with

approximately 408 talking ATMs in Massachusetts (according to a listing Ms. Brown found on

the DLC's web-site, a copy of an excerpt of which is produced), Citizens Bank with

approximately 250 talking ATMs in Massachusetts (according to a press release Ms. Brown

found on the Citizens Bank web-site, a copy of which is produced), and TD BankNorth with

approximately 99 talking ATMs in Massachusetts (according to information Ms. Brown found

on that bank's web-site).

Dated:

December 22, 2005

As to objections:

Patricia Correa, BBO # 560437 Assistant Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, x 2919
I, Patricia Correa, in my capacity as Assistant Attorney General, state that the foregoing interrogatory responses are based upon my personal knowledge, upon information provided to
15

Case 1:03-cv-11206-NMG Document 169 Filed 12/23/05 Page 22 of 22
me by employees of the Attorney General's Office and co·counsel, and upon information contained in documents maintained by the Attorney General's Office. I further state that I am authorized to sign these answers on behalf of Attorney General Reilly, and while I do not have personal knowledge of all the information provided in the answers, I believe that the above answers are true.
Sworn to under the pains and penalties of perjury this 22nd day of December, 2005. Patricia Correa
16

 
 Case 1:03-cv-11206-MEL Document 171 Filed 01/06/2006 .Page 1 of 9

UNITED STATES FOR THE DISTRICT OF,M&SSACHUS~TS’~"

£O~O~E~TH OF MASSACHUSETTS, et .PlaMfiffs, ¯

. ~ -~~A,’No.: 03 ll206-MEL

E’TRADE ACCESS, INC., et al. Defendants.
COMMONWEALTH’S RESPONSE TO DEFENDANTS’ SUBMISSION OF SUPPLEMENTAL EVIDENCE IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT
The Commonwealth submits this Response to briefly address Defendants’ misguided attempt to rely on the Commonwealth’s recent interrogatory responses that note the availability and wide use of voice guidance technology to provide ATM access for blind people as a basis for judgment against Plaintiffs.~
In their Submission, Defendants correctly point out that the Commonwealth cites in its interrogatory responses voice guidance technology as one means by which Defendants could translate visual instructions and information for use at its ATMs into a non-visual format so that the ATMs would be accessible to, and independently useable by, blind people. Defendants also correctly point out that the Commonwealth cites voice guidance technology as the chosen method of providing access to blind consumers used at well over 1,600 ATMs owned and/or operated in Massachusetts by such major financial institutiong as Bank of America, Sovereign
1 Defendants filed their Submission of Supplemental Evidence in Support of Defendants’ Cross-Motion for Summary Judgment ("Submission") in contravention of the Local Rule requiring parties to seek leave of court before filing papers additional to a reply brief, see Local Rule 7.1 (B)(3), and the Local Rule requiring parties to confer with counsel before submitting such a motion. See Local Rule 7.1(A)(2).

Case 1:03-cv-11206-MEL Document 171 Filed 01/06/2006 Page 2 of 9
Bank, Citizens Bank, and TD BankNorth. See, e.g., Defendants Submission, Exhibit A,
Response to interrogatory Number 16. Defendants then leap to an unwarranted conclusion that
the Commonwealth’s recognition of the availability and wide use of voice guidance technology
proves that they are entitled to summary judgment. Although Defendants repeatedly remind the
Court that "[it] has already ruled [that voice guidance] is not a permissible remedy," 2
Submission at 2, the Court’s dictum does not prevent Defendants from undertaking voluntary
steps to use voice guidance to afford access, as the Commonwealth suggested in its interrogatory.
responses.
The Court’s expressed view of its latitude in fashioning an order of relief would not
preclude Defendants .from, or somehow place Defendants in jeopardy of violating the law by,
undertaking voluntary implementation of voice guidance technology to afford blind consumers.
access. This is so as a matter of common sense, and it is so under ADAAG 2.2, the "equivalent
facilitation" provision:
2.2 Equivalent Facilitation. Departures from particular technical and scoping requirements of this guideline by the use of other designs and technologies are permitted where the alternative designs and technologies will provide substantially equivalent or greater access to and usability of the facility.
2 While the Court stated in dictum in its February 22, 2005, decision on Defendants’ Rule 12(c) motion that it could not impose voice guidance technology on Defendants under ADAAG 4.34.5, the Court can, in fact, order voice guidance as a remedy for Defendants’ failure to comply with ADAAG 4.34.5. That provision sets forth a flexible, performance-based standard of "access" and "independent usability." No legislation or case law limits the remedial power of the court to order a remedy, such as voice guidance, when an entity violates ADAAG and the remedy will bring the entity into compliance. Defendants have relied on case law that says, correctly, that ifa public accommodation has complied with ADAAG, nothing further may be required of the public accommodation under the ADA’s general prohibition against discrimination by a public accommodation. That case law has no bearing on the remedies available to the court when an entity has violated ADAAG. The Court also seems to have relied on language in the Access Board comments to the ADAAG to the effect that the Access Board would not, at that time, require headphone jacks per se. See Memorandum and Order dated February 22, 2005, at 3. However, Defendants presented this comment to the Court shorn of its context: the Access Board was addressing security and privacy concerns at ATMs that affected all consumers alike and were unrelated to access issues specifically. See 56 Fed. Reg. 35441-42 (attached as Exhibit 3 to the November 9, 2004, Memorandum in Support of Defendants’ Rule 12(c) Motion for Judgment on the Pleadings). Moreover, by foreclosing headphone jacks as a means of ad&essing privacy and security concerns, the Access Board did not rule o~t other means of supplying audio capability that were then more common (e.g., voice guidance through a telephone headset), although, again, it declined to mandate any specific means and instead adopted a flexible, performance-based approach.

Case 1:03-cv-11206-MEL Document 171 Filed 01/06/2006 Page 3 of 9
Thus, even if voice guidance technology Were somehow beyond the scope of ADAAG 4.34.5’s flexible, performance-based "access" and "hadependent use" requirements, Defendants could still undertake to make their ATM services accessible to blind consumers through the use of voice guidance technology under Section 2.2, since that technology would provide "substantially equivalent or greater access to and usability of the facility."
The proliferation of voice guidance technology since 199 I, when the current ADAAG standard was promulgated, brings it squarely within the equivalent facilitation doctrine. The Access Board explained ha its comments to this provision that it intended to facilitate new technologies and specifically noted "audible signage for iniJividuals with vision impairments" as an example of appropriate "equivalent facilitation." See 56 Fed. Reg. 35408, 35413 (attached as Exhibit A). Even under Defendants’ reading of ADAAG 4.34.5, therefore, they are not foreclosed from voluntarily taking advantage of the same technology implemented at thousands of other ATMs ha Massachusetts and across the country that alIows blind consumers the same or equivalent access and independent use afforded sighted consumers.3
Instead, the evidence here shows that Defendants have done virtually nothing - either under ADAAG 4.34.5 or under ADA_AG 2.2 - to afford blind people access to and independent use of their ATMs. The evidence Plaintiffs submitted in support of their partial summary judgment motion shows that in the case of some ATMs, there is some Braille on the keypads. However, that Brailte offers only a negligible fi’action of the universe of the ATMs’ instructions and information for use. Rather, the great majority of the information and instructions required to use the ATMs is now presented only through visually-discerned screen prompts. While
~ If Defendants were to use voice guidance technology at any of their ATMs, those ATMs would also comply with the type of order the Plaintiffs have requested in connection with their motion for partial s~ judgment, namely, that the Court order Defendants to make their ATMs accessible to and independently useable by blind people.

Case 1:03-cv-11206-MEL Document 171 Filed 01/06/2006 Page 4 of 9
defense counsel stated at the October 6, 2005, hearing on the cross-motions forsummary judgment that ’~e [Defendants] believe our ATMs are accessible," no admissible evidence supports that belie£ The evidence shows the contrary: the Defendants’ ATMs present the myriad screen prompts a consumer must navigate in only a visual format, which consumers without sight cannot use.
Defendants assert that the proposed revised ADAAG will require talking ATMs, and assert that they should not have to impIement voice guidance technology before this revised ADAAG takes effect and other institutions must also implement that technology. As the Commonwealth’s interrogatory responses indicate, other financial institutions have read ADAAG’s flexibie, performance-based standard of 4.34.5 and already implemented voice guidance technology as their chosen method of complying with that flexible standard. Contrary to Defendants’ suggestion, Plaintiffs do not ask the Court to order Defendants to make their ATMs accessible in advance of a legal rule that they do so; rather, Plaintiffs ask the Court to order Defendants to f~nally do what other institutions have already done and afford blind consumers access and independent use. Those other institutions have adopted widely available voice guidance technoIogy for a variety of compelling business reasons. However, the order Plaintiffs have requested - that would require Defendants’ ATMs to offer instructions and alI information for use in a manner that is accessible to and independently useabIe by the blind would leave it up to Defendants to decide how best to make their ATMs accessible and would not require Defendants to follow the well-trodden path chosen by other financial institutions.
In light of the undisputed evidence illustrating Defendants’ refusal to make any goodfaith effort to afford blind people access to their ATMs’ services, the Commonwealth asks the

Case 1:03-cv-11206-MEL Document 171 Filed 01/06/2006 Page 5 of 9
Court to enter judgment on Count V of the Third Amended Complaint and issue Plaintiffs’ proposed order ofrelie£
Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS, By its Attorneys, THOMAS F. REILLY ATTORNEY GENERAL
P~[tri-cia’-C~orrea, BBO No. 560437 Assistant Attomey General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919
Dated: January 5, 2006

Case 1:03-cv-11206-MEL Document 171 Filed 01/06/2006 Page 6 of 9

CERTIFICATE OF SERVICE

I, Patricia Correa, hereby certify that on this 5th day of January, 2006, I served the within docttment via first-class mail, postage prepaid (with attachments) and via e-mail (without attachments) on the following counsel of record:

Joseph L. Kociubes, Esquire

Daniel F. Goldstein, Esquire

Bingham McCutchen, LLP

Sharon Krevor-Weisbaum, Esquire

150 Federal Street

Brown, Goldstein & Levy, LLP

Boston, MA 02i 10

120 E. Baltimore Street, Suite 1700

j oe.kociubes@bingham.com

Baltimore, MD 21202

Attorney for Defendants, E’Trade

dfg@browngold.com

Access, Inc. and E’Trade Bank

skw@browngold.com

Attorneys for Plaintiffs, National Federation

Douglas P. Lobei, Esquire

of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch,

David A. Vogel, Esquire Arnold & Porter

Richard Downs, Theresa Jeraldi and Philip Oliver 1600 Tysons Boulevard, Suite.900

McLean, VA 22102

Christine M. Netski, Esquire

douglas_lobel@aporter, corn

Sugarman, Rogers, Barshak, & Cohen, P.C.

david_vogel@aporter.com

101 Merrimac St.

Attorneys for Defendants,

Boston, MA 02114-4737

E’Trade Access, Inc. and E’Trade

netski@srbe.com

Bank

Attorneys for Plaintiffs, National Federation

of the Blind, Inc., National Federation of

Blind of Massachusetts, Inc., Adrienne Asch,

Richard Downs, Theresa Jeraldi and Philip Oliver ¯

6

Case 1:03-cv-11206-MEL Document 171 Filed 01/06/2006 - Page 7 of 9 Friday July 26, 1991
Part II
Architectura.I and Transportat=on Barriers Compliance Board
36 CFR Part 1191 Americans With Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities; Final Guidelines
F4717.FMT,..[16,32].,.~i-OT-S8

/ . Case 1!03~cv-11206-MEL Document 171 Filed 01/06/2006 Page8 of 9

¯ ’ Eederal R~,ister / Vol. 56, No. 144 :/ Friday, July 26, 1~1/ Rules a~d Re~lations .

~ " ]~-:"--~""; ~N~
~::~: ".: . ~~~%’~N BARRIERS :.ii, COMPLIANCE. BOARD

a-co~odafion. As discussed below, ti~,III establishes acceesibi~W ~ requirements for new construction and alterations in places of public

o~er places ~ whi~ emplo~ent ~U occ~. H. Rept. 1~, pt. 2, at 11~17.
Section 303 of the ADA establishes accessibility ~equireineu~s for new

¯ , 36 CFR.Part i191

accommodation and commercial facilities.

construction and alterations in places of public accommodation and commercial

[Docket No. 90-2] ’~ RIN ~014-AA0~ "

"Public accommodation" is defined by facilities. With respect to new section 301[7] of the ADA as including construction, section ~03(a)1) requires

Amerl~n~ With .D~ab.tt~s Ac~ (ADA)
Accessibility Guldeilmm for Buildings and Facilities. "
AOENCY: Architectural and ¯ Trenspe~atian ~ers Compliance ¯ ¯ Boa~, - .
ACtOr: F~al. ~idel~es.

the f011ow~ng twelve categories of

that places of public accommodation

private entities if their operations affect and commercial facilities designed or

¯ commerce:
(:,]An inn, hotel, motel, or other place of ,10dslng, except for an establishment lo¢ated within a building that contains not more than

constructed for first occupancy after January 26, ~993, must be readily
accessible to and usable by individuals with disabilities, except where an entity

five rooms for rent or hire .and that is actually can demonstrate that it is structurally ¯

occupied by the proprietor of such

impracticable. When alterations are

establishment as the residence of such

made that affect or could affect usability

~,UMM~RY: The Architectural and
.Transportation Barriers Compliance Board .is issuing final guidelines to assist ¯ the Department of Justice to establish

proprietor, " [2} A restauranL bar. or other
establishment serving food or drink; " [3l A motion picture house, theater, concert
hall, stadium, or other place of exhibition or

of or access to a place of public’accommodation or commercial facility,
section 203[a}(2} requires that the alterations be made in such a manner

.accessibility standards for new

entertainment:

that, to the maximum extent feasible~

construction and alterations in places of (4} An auditorium, convention center,

the altered portions of the facility are

public accommodation and commercial facilities, as required by title iiI the

lecture hall, gathering;

or

other

place

of

public

readily accessible to and usable by individuals with disabilities. In addition,

Americans with Disabilities Act {ADA) of 1990. The 8uidelines will ensure that

har(d5w}aArebaskteorrye,,gsrhooceprpyinsgtocreen,tecrl,o¯thoirngotshteorre,

where alterations affect or could affect usability of or access to an area of the

newly constructed and altered portions
of buildings and facilities covered by title Iil of the ADA are readily
accessible to and usable by individuals with disabilities in terms of.architecture

Sales or rental establishment: [6} A laundromat, dry..leaner, bank, barber
shop, beauty shop, [ravel service, shoe repair
service, funeral parlor;gas station, office.of
an accountant or lawyer, pharmacy, insurance office, professional office of a

facility containing a primary function; section 303(a}{2} requires that the alterations be made in such a manner that, to the maximum extent feasible, the path of travel to the altered area, .

and design, and communication. The

health care provider, hospital, or other

and the res~:ooms, telephones, and

Department of Justi~ce has proposed to

service establishment;

drinkin~ fountains serving the altered

adopt the guidelines as the accessibility [7l A terminal, depot, or other station used area are readily accessible to and

standards for new construction and alterations in places of public accommodation and commercial facilities for purposes of title III of the
ADA.
[W~’~Cl~vs OATE:. July 26, 1~1. gOR I~’HER iNFOi~TIO~ ~FrA~t: ’

for specified public transportation:
(8) A museum, library, gallery, Or other place of public display or collection;
[9) A park, zoo. amusement park, or other place of recreation:
[I0} A nursery, elementary, secondary.
undergraduate, or postgraduate private school, or other place of education;

usable by individuals with disabilities
unless it is disproportionate to the overall alterations in terms of cost and scope, as determined under criteria
established by the Attorney General.
Section 303{b} of the ADA contains an exception which specifies that the

James Raggio, Office of the General
Counsel, Architectural and ’ Transportation Barriei’s Compliance Board, lllI-18th Street, NV¢., Suite 501, Washington, DC 20036. Telephnne [202}
~]-7~ (Voice/TDD). This is not a tollfree number. This docuinent is available

[11} A day cam center, senior citizen

installation of an elevator is not

center, homeless shelter, food bank, adoption required for newly constructed or

agency, or other social service center

altered facilities that are less than three

establishment; and {¯12} A gymnasium health spa, bowlkng
alley, golf course, or other place of exercise
or recreation.

stories or have less than 3,000 square
feet per story unless the building is a shopping center, shopping malI, the professional office of a health care

in accessible formats [cassette tape,

The. legislative history states that

provider, or another type of facility

braille, large print, or computer disc}

these twelve categories "shotdd be

determined by the Attorney General to

upon request. SUPPLEMENTARY INFORMATION:
Statutory Background

construed liberally consistent with the intent of the legislation that people with disabilities should have equal access-to
*he array of establishments that are

require the installation of an elevator based on the usage of the facility.
According to the legislative history, the term "readily accessible to and

The Americans with Disabilities Act available to Others who do not currently usable by" is intended to provide "a

(ADA] of 1990 extends to individuals

have disabilities." H. Rapt. 101-485, pt. high degree of convenient accessibility"

with disabilities comprehensive civil

2, at 100,

and "enable peopte with disabilities

rights protections similar to those

"Commercial facilities" are defined by [including mobility, sensory, and

provided to persons on the basis of race, section 301{I} of the ADA as facilities coguitive impairments} to get to, enter

so×, national origin, and religion under that are intended for nonresidential use and use a facility." H. Rept. 101-485, pt.

the Civil Rights Act of 1964. Title Ill of and whose operations will affect

2, at 11~-18. The term includes

the ADA, which becomes effective on

cornmer,~. The legislative history states "accessibility of parking areas,

January 26, 1992, prohibits

that the ~rm is to be interpreted broadly accessible routes to and from the

discrimination on the basis of disability to cover oommercial establishments ¯that facility, accessible entrances, usable

in places of public accommodation by are not included within the specific

bathrooms and water fountains,

any person who owns, leases or ]eases definition Of "public accommodation" accessibility of public and common use

to, or operates a place of public

such as office buildings, factories, and areas, and access to the goods, services,

S-0519~

/: ~oard’s response to those commen~s,

special¯ circumstances must be

door openers for double leaf doors, and

," and any changes made to the guidelines. evaluated on a case by case basis. In the provision of audible signage for

1, Purpose

case of new technologies which provide individuals with vision impairments,

equivalent facilitation, as those

The use of a portable ramp,.however, is

The purpose section has been clarified technologies become more common, the not considered equivalent facilitation.

to state that the guidelines are to be : applied during the design,, construction, and alteration of places of public ’ accommodation and commercial

Board will consider incorporating them
In.the guidelines. The final guidelines in corporate
specific provisions for equivalent.

The ADA does not require any process to be established for reviewing
whether equivalent facilitation is provided.

facilities to the extent required by

facilitation in five sections. In 4.1.6{3}{c},

regulations issued by Federal¯ agencies,¯ in the case of alterations to an existing 3. M~scellaneous Instructions and

including the Department of Justice,

facility the guidelines permit an elevator Definitions

under the ADA. The Department of Justice’s final regulations will address the extent to which the guidelines are

car to have different dimensions when 3.1 Graphic Conventions

usability can be demonstrated and all

other elements required to be accessible

Dimensional Tolerances

applicable to places of public

comply with the applicable provisions of 3.3 Notes

accommodation and commercia! facilities under new construction and

4.10 [e.g., a 49 inch by 69 inch elevator car with a door opening on the narrow

3.4 General TerminoI0gy

alteration sections, including alterations dimension could accommodate the

Few comments were receive on these

to an area containing a primary function standard wheelchair clearances shown sections and they did not warrant any

and cost disproportionality. The

in figure 4]. In 4.31.9, the guidelInes

changes.

Department of Justice’s final regu!ations will also address whether the guidelines
are applicable to the removal of
architectural barriers, and c0mmurdcations barriers that are

permit the use of a portable text telephone if it is readily available for use with a nearby¯public pay telephone that is equipped with a shelf; an electricalouttet within, or adiacent to,

3..5 Definitions
Comment, ~everal commenter8 recommended that the term "individual with a disability" should be defined the

¯ structural in nature, in existing. buildings and facilities where such removal is readily achievable~ The Equal Employment Opportunity .Commission’s final regulations will address whether the guidelines are applicable for purposes of reasonable accommodation under title I of the ADA.
2.-General
2.1 Provisions for Adults There were no comments on thi~’
sectiom As discussed under the general issues, the Board will develop guidelines for children’s environments.
2.2 Equivalent Facilitation
CoMment. Commenters generally supporfed the equivalent facilitation provision which permits departures from the guidelines where substantially equivalent or greater access to or usability of a building or facility is provided, Some commenters requested that the guidelines include examples of alternatives that would provide equivalent facilitation. Other commenters expressed concerns about enforcement and a few recommended that a process be establlshed for reviewing whether equivalent facilitation is provided.
RespoNse. The equivalent facilitation provision has been clarifi~.d by substituting the words "~,.:signs and technologies" for "methods." The purpose of the provision is to allow for flexibility to design for unique and special circumstances and to facilitate the application of new technologies. The accessibility and usability of design solutions developed for unique and

the telephone enclosure; and a long

same as in the ADA.

enough telephone handset cord to allow t~e~po~e. The definition of the term

connection of thetext telephone and the "individual with a disability" has been

telephone receiver if an acoustic coupler is used. In 7.2, the guidelines provide for

deleted from the guidelines as unnecessary since the guidelines will be

equivalent facilitation at counters that incorporated in the Department of

may not have a cash register but at which goods or services are distributed {e.g.,teller stations in banks, registration counters in hotels and motels] by

lustice’~ regulations implementi_ng title iII of ~e ADA which Will include a definition of the term. The NPRM deftned "accessible" in terms of being

permitting use of a folding shelf

used "by Individuals with disabilities,

attached to the main counter on which an individual with a disability can write, and use of the space on the side of counter or at the concierge desk for ¯ handling materials back and forth. In 9.1.4, the guidelines deem it equivalent facilitation if the operator of a hotel or similar place of transient lodging elects to limit construction of accessible rooms to those intended for multiple occupancy provided that such rooms are made avaiIable to an individual with a disability who requests a singleocc~.~pancy room. In 9.2.2{b]{d], hotels and other similar places of transient

includ~g those affecting mobility, sensory, or cognitive functions." The deRnition of the term "accessible" has been revised in the final guidelines to mean a.site, building, facility, or portion thereof that complies with the gnidelines, In 0~er words, buildings and facilities that meet the requirements the guidelines are by definiton accessbile to individuals with disabilities.
Comment. Commenters made several recommendations for changes In the definition of the term "technically

lodging are permitted to utilize a higher infeasible."

door threshold or a change in level at

t~e~po~e. The Definition of the term

patios, terraces and balconies where~ "technically infeasible" has been

necessary to protect the integrity of the revised and moved to the scoping

unit from wind and water damage.but provisions for alterations at

equivalent facilitation is required where Changes to that definition are discussed

it results in patios, terraces, or balconies under that section. A new term

that are not on an accessible level ra’:sed decking or a ramp must be provided to permit access to the patio, terrace or balcony].
Equivalent facilitRtion is appropriate

"structural frame" has been added to 3.~ in connection with the revised definition of "technically infeasible" which is also discussed under the scoping provision ¯ for alterations.

and applies to the entire guidelines and

Comment. A corranenter requested

not only those sections mentioned

that the term "text telephone!’ be used in

above. For example, other areas where place of "telecommunication display

equivalent facilitation may be

device or telecomm~nicatio~ device for

appropriate include the use of automatic the deaf

O008(OOX23-J’UL-91-18:55:45)

 
 Case 1:03-cv-11206-MEL Document 178 Filed 05/04/2006 Page 1 of 23

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

COMMONWEALTH OF MASSACHUSETTS )

et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 03 11206 MEL

)

E*TRADE ACCESS, INC. et al.,

)

)

Defendants.

)

__________________________________________)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON COUNTS III, IV AND V DUE TO LACK OF STANDING

Dated: May 4, 2006

Respectfully submitted,
Douglas P. Lobel (pro hac vice) David A. Vogel (pro hac vice) ARNOLD & PORTER LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 720-7000
Joseph L. Kociubes, BBO # 276360 Jenny K. Cooper, BBO # 646860 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Counsel for Defendants E*TRADE Access, Inc., E*TRADE Bank, Cardtronics, Inc. and Cardtronics, LP

Case 1:03-cv-11206-MEL Document 178 Filed 05/04/2006 Page 2 of 23
TABLE OF CONTENTS STANDARD OF REVIEW ............................................................................................................ 3
ARGUMENT.................................................................................................................................. 4
I. THE NFB DOES NOT HAVE ORGANIZATIONAL STANDING ....................................... 5
A. The NFB Does Not Allege That Defendants Are Discriminating Against The NFB Itself .................................................................................................................................... 5
B. The NFB Cannot Raise A Claim Under ADA Title III Because It Is Not “Being Subjected To Discrimination,” As ADA § 12188 Requires............................................... 5
C. Prudential Standing Considerations Bar The NFB From Raising Claims Of Blind Individuals .......................................................................................................................... 7
II. PLAINTIFFS LACK STANDING TO PURSUE A NATIONWIDE INJUNCTION ............. 8
A. Under The ADA, Plaintiffs Must Prove They Intend To Use Each Of The Specific ATMs At Issue ................................................................................................................... 8
1. Plaintiffs Must Show They Had “Actual” Knowledge Of Alleged Inaccessibility At The Time They Filed The Lawsuit .......................................................................... 8
2. Plaintiffs Must Show They Actually Intend To Use Each ATM If Plaintiffs Prevail ........................................................................................................................... 9
3. Where Plaintiffs Challenge Numerous ATMs, They Have Standing Only For Those ATMs They Actually Would Use .................................................................... 11
B. None Of The Three Individual Plaintiffs Has Standing.................................................... 11
1. The Three Individual Plaintiffs Admit They Had No First-Hand “Actual Knowledge” Of Defendants’ ATMs At The Time They Filed The Lawsuit.............. 12
2. The Three Plaintiffs Do Not Intend To Use Every One Of Defendants’ ATMs -And In Fact Can Identify Only One ATM They Would Use ..................................... 12
C. Because The NFB Cannot Demonstrate That Any Of Its Members Have Standing, It Lacks Derivative “Representational” Standing ................................................................ 14
1. The NFB Admits It Cannot Prove Its Individual Members Have Standing ............... 15
2. The NFB Cannot Obtain Necessary Evidence From Thousands Of Its Members Without Violating Prudential Standing Prohibitions .................................................. 17
3. Ruling That The NFB Lacks Standing Furthers The Purposes Of The ADA ............ 18
CONCLUSION............................................................................................................................. 20
- i -

Case 1:03-cv-11206-MEL Document 178 Filed 05/04/2006 Page 3 of 23
Plaintiffs’ recent discovery responses reveal a fundamental defect in their lawsuit: the Plaintiffs lack standing to pursue their nationwide claims (Counts III, IV and V of the Third Amended Complaint) against Defendants’ fleet of over 25,000 ATMs.
Title III of the ADA imposes a “basic requirement that the need of a disabled person be evaluated on an individual basis.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001). To establish standing under this “basic requirement,” the Court must “scrutinize[ ] the likelihood that a plaintiff, absent the barrier, would have frequented the public accommodation in the future.” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003). Both “jurisdiction[al] principles and the terms of the statute” require that this analysis must be “site-specific.” Moreno v. G&M Oil Co., 88 F. Supp. 2d 1116, 1117 (C.D. Cal. 2000). When claims are raised for multiple individuals, “any finding of ADA violations requires proof as to each individual claimant.” Association for Disabled Ams., Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1363-64 (S.D. Fla. 2001). “The ADA does not permit private plaintiffs to bring claims as private attorneys general to vindicate other people’s injuries.” McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 69 (1st Cir. 2003) (“McInnis”).
Under these rules, none of the Plaintiffs have standing for a nationwide injunction: The NFB Lacks “Organizational Standing.” The private organizational Plaintiffs, National Federation of the Blind and its Massachusetts chapter (jointly, “the NFB”), have no standing of their own. Title III restricts lawsuits to persons “being subjected to discrimination.” 42 U.S.C. § 12188. The NFB is not the victim of alleged discrimination, and prudential standing rules bar the NFB from raising claims of the alleged victims. Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005); Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003); see also McInnis, 319 F.3d at 69 (prudential standing limitations apply to Title III claims).

Case 1:03-cv-11206-MEL Document 178 Filed 05/04/2006 Page 4 of 23
Individual Plaintiffs Lack Standing for a Nationwide Injunction. The three individual Plaintiffs only have standing to challenge Defendants’ specific ATMs of which (1) Plaintiffs had “actual knowledge” of alleged inaccessibility when this suit was filed, and (2) Plaintiffs are “reasonably likely” to use if Plaintiffs prevail. See Part II(A), infra. But the three Plaintiffs admit they “cannot say” whether they have ever tried to use Defendants’ ATMs, so they cannot prove actual knowledge of alleged inaccessibility. More importantly, the three collectively identify only one ATM they might use. They admit they cannot predict which, if any, of Defendants’ other ATMs they might use. Indeed, no one or three persons can claim that they are reasonably likely to use over 25,000 ATMs nationwide. These three individuals lack standing to seek a nationwide injunction.
The NFB Lacks “Representational Standing.” The considerations that deprive the three individual Plaintiffs of standing also deprive the NFB of “representational” standing on behalf of its members. The NFB cannot present claims of its members unless (1) the NFB has proof the members individually have standing, and (2) the litigation cannot require the “substantial participation” of the members. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). The NFB cannot meet either. It admits it “does not . . . maintain” a database of its members’ names and addresses, it “does not have . . . information” about which ATMs its members use or want to use, and it “cannot predict which [of Defendants’] ATMs will likely be used by which NFB member or how often.” See Part II(C)(1), infra. The NFB, instead, is merely speculating that some unknown number of its members might at some unknown times want to use some unknown subset of Defendants’ ATMs. Courts universally reject representational standing on such speculative grounds. See id. Furthermore, if the NFB attempted to prove these factors through the massive participation of thousands of its members, it
- 2 -

Case 1:03-cv-11206-MEL Document 178 Filed 05/04/2006 Page 5 of 23
would lack representational standing for that reason alone. See Pharmaceutical Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 313-14 (1st Cir. 2005) (“Pharm. Care”).
Because Plaintiffs cannot meet their burden of proof on the threshold issue of standing, the Court should grant summary judgment to Defendants on the claims regarding Defendants’ nationwide fleet of ATMs. Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment for defendants appropriate where plaintiffs fail to establish all of their burdens).1
STANDARD OF REVIEW Standing is a threshold issue for the Court. Warth v. Seldin, 422 U.S. 490, 517-18 (1975) (“The rules of standing . . . are threshold determinants of the propriety of judicial intervention.”). Plaintiffs have the burden of establishing their standing. City of L.A. v. Lyons, 461 U.S. 95, 101 (1983). Plaintiffs must prove they had standing at the moment the lawsuit was filed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 569-70 n.4 (1992). Because the lack of standing deprives the Court of subject-matter jurisdiction, the Court can address Plaintiffs’ standing at any point of the proceedings, even many years into the litigation. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990). A standing defect cannot be waived by the parties or ignored for any reasons. United States v. Hays, 515 U.S. 737, 742 (1995). If the Court determines Plaintiffs lack standing, then the Court has no jurisdiction and “the court shall dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis added). Plaintiffs must survive two tiers of standing. First, standing presents a Constitutional inquiry. The “irreducible Constitutional minimum” of a “case or controversy” under Article III
1 Defendants understand that the Commonwealth of Massachusetts is not seeking an injunction against the nationwide fleet of ATMs but only the ATMs located in Massachusetts. Defendants will address at a later time the Commonwealth’s lack of standing under the ADA even for this type of injunction. Stated briefly, the individualized nature of claims under Title III would bar parens patriae standing that the Commonwealth asserts here.
- 3 -

Case 1:03-cv-11206-MEL Document 178 Filed 05/04/2006 Page 6 of 23
requires that Plaintiffs possess a “concrete and particularized” injury that is “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” and that is directly “redressable” by the relief they seek. Lujan, 504 U.S. at 560-61. Second, courts have developed “prudential” standing requirements. Three of the “well-established” prudential requirements are that:
• “[T]he complaint must ‘fall within the zone of interests protected by the law invoked’”;
• “[T]he plaintiff . . . ‘must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties’”; and
• “[T]he suit must present more than ‘abstract questions of wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in the representative branches.’”
New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 15 (1st Cir. 1996) (citations omitted). Congress can eliminate these prudential concerns for causes of action in a specific statute, Warth, 422 U.S. at 501, but Congress is presumed to legislate against the “backdrop” of prudential standing doctrine so these limitations apply to any statute “unless expressly negated by Congress,” Bennett v. Spear, 520 U.S. 154, 163-65 (1997).
The Court can resolve Plaintiffs’ standing on summary judgment if the material facts are not in genuine dispute. E.g., National Fed’n of the Blind of Mo. v. Cross, 184 F.3d 973, 983 (8th Cir. 1999) (affirming summary judgment for defendants because the NFB lacked standing).
ARGUMENT The facts proving Plaintiffs lack standing are short and understandable only in the context of the legal argument. Therefore, Defendants proceed to the argument with the facts intermingled. Defendants are simultaneously filing a “Statement of Material Facts” (“SMF”) that sets forth the relevant facts and supporting evidence.
- 4 -

Case 1:03-cv-11206-MEL Document 178 Filed 05/04/2006 Page 7 of 23
I. THE NFB DOES NOT HAVE ORGANIZATIONAL STANDING The NFB first claims it has standing on its own due to harm directly inflicted on it by
Defendants, so-called “organizational” standing. See SMF ¶ 13. But because the NFB is not a person “being subject to discrimination” under Title III of the ADA, prudential standing limitations bar the NFB from having standing on its own.
A. The NFB Does Not Allege That Defendants Are Discriminating Against The NFB Itself
Defendants’ discovery requested the NFB to describe the facts supporting its alleged organizational standing. The NFB responded that, as a result of having to dispute and then litigate Defendants’ policies and ATM design, it has had to divert resources from its other missions and projects. SMF ¶ 13. The NFB claims it has spent nearly $130,000 before filing the lawsuit to negotiate with Defendants, and nearly $730,000 in litigation expenses since then. Id. ¶¶ 14 & 15. The NFB says that, as a result of these costs and the time of its staff to deal with Defendants’ alleged transgressions, it has missed other opportunities and suffered a decline of its ability to deliver services to its clientele and the public. Id. ¶ 13.
B. The NFB Cannot Raise A Claim Under ADA Title III Because It Is Not “Being Subjected To Discrimination,” As ADA § 12188 Requires
The NFB’s alleged organizational standing is barred by Title III’s express terms. Section 12188 of the ADA (42 U.S.C. § 12188) sets forth the remedies for violations of Title III of the ADA. Congress expressly limited causes of action under ADA Title III to only persons who are “being subjected to discrimination”:
The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter [Title III] provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter [Title III] . . . .
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42 U.S.C. §12188(a)(1). Title III’s enforcement provision is markedly narrower than its counterparts in ADA Titles I or II, which permit “any person alleging discrimination” to bring a suit, without requiring that the she be suffering it herself. Cf. 42 U.S.C. §§ 12117(a) & 12133.
The NFB does not (and cannot) have a claim that it is “being subjected to discrimination” by Defendants. The only provision of the ADA that concerns direct discrimination of organizations is in § 12182(b)(1)(E), which bars discrimination against an “individual or entity” that is denied goods or services on the basis of that individual’s or entity’s “relationship or association” with a disabled individual. The NFB has never stated a cause of action under this provision, because Defendants have never deprived the NFB as an organization of any of Defendants’ services. SMF ¶ 17. The NFB does not fall within the scope of persons who can assert claims under Title III set forth in § 12188.
Two cases are directly on point. In both Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003) and Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005), organizations sought standing to assert claims under Title III of the ADA that defendants’ stores were not accessible to wheel chairs. Both courts concluded that the organizations were not themselves persons “being subjected” to the alleged discrimination. Clark, 213 F.R.D. at 209211; Small, 388 F. Supp. 2d at 92 (following Clark, concluding, “The enforcement provision of Title III clearly envisions that a plaintiff himself must currently be suffering or be about to suffer discrimination.”). Thus, both courts held that the organizations did not have standing to assert their own claims under Title III. The exact same conclusion applies to the NFB.2
2 Accord W.G. Nicols, Inc. v. Ferguson, No. 01 Civ. A 834, 2002 WL 1335118, at *15-16 (E.D. Pa. June 7, 2002) (organizational standing under Title III was limited to entities that had suffered direct discrimination as a result of their known association with disabled persons); Micek v. City of Chicago, No. 98 Civ. 6757, 1999 WL 966970, at *3 (N.D. Ill. Oct. 4, 1999) (plaintiff did not have standing to bring Title III claim where plaintiff himself was not “discriminated against or singled out in a discriminatory way”).
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C. Prudential Standing Considerations Bar The NFB From Raising Claims Of Blind Individuals
The NFB is really asserting claims that third-party blind people are “being subjected to discrimination.” One of the most “well-established” prudential limitations on standing is that the NFB cannot “rest [its] claim to relief on the legal rights or interests of third parties.” New Hampshire Right to Life, 99 F.3d at 15. The First Circuit has held that the “normal background prudential standing limitations” apply to claims under Title III of the ADA. McInnis, 319 F.3d at 69. The Clark and Small cases reached exactly the same conclusion. Clark, 213 F.R.D. at 210-11 & n.9; Small, 388 F. Supp. 2d. at 92-93. So have numerous other decisions nationwide. Small, 388 F. Supp. 2d at 93-94 (collecting authorities). These decisions all note that, while Congress eliminated prudential limitations for claims under Titles I and II of the ADA, the remedial section for Title III (§ 12188) is much narrower in scope.
This prudential limitation deprives the NFB of standing to assert claims of third-party blind people. Clark, 213 F.R.D. at 210 n.9; Small, 388 F. Supp. 2d at 93; cf. Benjamin v. Aroostook Med. Ctr., 57 F.3d 101, 105 (1st Cir. 1995) (no standing because plaintiffs’ claims fell outside scope of statute and thus were asserting third-party rights, which is barred by prudential considerations). Separately, the NFB claims it has “representational” standing to assert claims of its blind members, which Defendants analyze below (see Part III.C, infra).
This is an easy decision. The NFB has no standing of its own under Title III.3
3 The NFB’s description of the grounds of its standing, see Part I(A) supra, demonstrates that the NFB is relying entirely on inapplicable case law. Diversion of an organization’s resources to combat alleged discrimination has afforded direct standing to an organization under ADA Titles I and II, as well as other statutes like the Fair Housing Act (“FHA”) and the Rehabilitation Act. E.g., Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). But none of these cases face the limiting language of § 12188 in Title III of the ADA. Furthermore, although some courts appear to reach a different conclusion while reviewing Title III claims, none of these other courts analyzed the narrower language of § 12188 and thus their conclusions are both contrary to the binding First Circuit law in McInnis and, in any event, simply are not persuasive. See Clark, 213 F.R.D. at 210 n.8 (refusing to follow such cases).
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II. PLAINTIFFS LACK STANDING TO PURSUE A NATIONWIDE INJUNCTION Constitutional requirements bar the individual Plaintiffs and the NFB from seeking a
nationwide injunction against 25,000-plus ATMs. Plaintiffs have not come close to satisfying their enormous evidentiary burden of proving injury-in-fact for each of the thousands of ATMs.
A. Under The ADA, Plaintiffs Must Prove They Intend To Use Each Of The Specific ATMs At Issue
The “irreducible constitutional minimum of standing” requires that Plaintiffs have an “injury in fact” that is “actual or imminent.” Lujan, 504 U.S. at 560. The First Circuit explained that, applied to the ADA, “a plaintiff generally must ‘show a real and immediate threat that a particular (illegal) barrier will cause future harm.’” Disabled Ams. For Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (“Disabled Ams.”), quoting Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003). “‘[A] disabled person who is currently deterred from patronizing a public accommodation . . .’ and ‘who is threatened with harm in the future because of existing . . . noncompliance with the ADA’ suffers actual or imminent harm sufficient to confer standing.” Disabled Ams., 405 F.3d at 64 (citation omitted). This standard has a number of important ramifications to Plaintiffs’ standing here.
1. Plaintiffs Must Show They Had “Actual” Knowledge Of Alleged Inaccessibility At The Time They Filed The Lawsuit
A Title III plaintiff must have “actual knowledge” of the alleged inaccessibility in order to have standing. 42 U.S.C. § 12188(a)(1). That means that the Plaintiffs either have attempted unsuccessfully to use Defendants’ ATMs or have first-hand knowledge that the ATMs are inaccessible. Access Now, Inc. v. South Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1365 (S.D. Fla. 2001) (plaintiff lacked standing to challenge certain alleged inaccessibilities that admitted he did not know about at time complaint was filed). This knowledge cannot be obtained by learning about the inaccessibility from other people or literature. E.g., Resnick v. Magical Cruise Co.,
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Ltd., 148 F. Supp. 2d 1298, 1301-03 (M.D. Fla. 2001) (plaintiff’s review of defendant’s website was insufficient to provide “actual knowledge” of inaccessibility of defendant’s cruise boat).
Furthermore, Plaintiffs must establish they possessed this “actual” knowledge at the moment they filed their lawsuit, which is the moment standing is determined. Lujan, 504 U.S. at 569-70. Courts routinely hold that plaintiffs lack standing under Title III where they could not prove they knew of the alleged inaccessibilities at the time the lawsuit began. E.g., D’Lil v. Best Western Encina Lodge & Suites, 415 F. Supp. 2d 1048, 1054 (C.D. Cal. 2006) (plaintiff could not prove she knew of inaccessibility at time lawsuit began); Brother v. Tiger Partners LLC, 331 F. Supp. 2d 1368, 1373 (M.D. Fla. 2004) (same); Clark, 213 F.R.D. at 227 (plaintiff lacked standing for restaurants he did not visit until after filing complaint).
2. Plaintiffs Must Show They Actually Intend To Use Each ATM If Plaintiffs Prevail
Plaintiffs also must show that they have an actual intention of visiting each ATM at issue if the lawsuit is successful. Dudley, 333 F.3d at 305 (surveying cases, concluding, “the court scrutinizes the likelihood that a plaintiff, absent the barrier, would have frequented the public accommodation in the future”).4 For example, one of the cases Plaintiffs frequently cited in the last round of summary judgment briefings, Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004), spent much time exploring whether the plaintiff would actually use the movie theatre in question in the future in assessing the plaintiff’s standing. Id. at 1081-82.
4 See also Pickern, 293 F.3d at 1138 ( “injury in fact” for Article III purposes occurs if plaintiff has visited accommodation in past and wishes to visit it in the future); Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (general standard for typical ADA Title III plaintiff is that he or she “would visit the building in the imminent future but for those barriers”); Moreno, 88 F. Supp. 2d at 1117-18 (plaintiff must at least prove he would visit defendants’ gas stations “in imminent future” if stations were made accessible).
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Plaintiffs do not have standing just because they speculate that they may visit the defendant’s business “some day” in the future. Lujan, 504 U.S. at 564 (“Such ‘some day’ intentions -- without any description of concrete plans, or indeed even any speculation of when the some day will be -- do not support a finding of ‘actual or imminent’ injury that our cases require.”) (emphasis added). While Plaintiffs need not prove absolute certainty of use, see Dudley, 333 F.3d at 306, they cannot merely speculate that use of the business is theoretically possible, see Association for Disabled Ams., Inc. v. Claypool Holdings LLC, No. IP00-0344, 2001 WL 1112109, at *18 (S.D. Ind. Aug. 6, 2001 ) (“Claypool”) (collecting cases regarding level of proof to demonstrate future use of facility). Where something is used or visited without much advance planning, like fast-food restaurants, courts attempt to measure the reasonable likelihood of future use by looking at various factual indicia. See, e.g., D’Lil, 415 F. Supp. 2d at 1053-54 (surveying cases, concluding courts look at proximity of plaintiff’s home to defendant’s business; past patronage; plans to return; and frequency of travel to area in which business is located); Rosenkrantz v. Markopoulos, 254 F. Supp. 2d 1250, 1253 (M.D. Fla. 2003) (looking at history of use of particular store, and use of defendants’ other stores). Applying these standards, numerous courts reject plaintiffs’ standing under Title III of the ADA where the plaintiffs could not demonstrate future use was anything other than generally possible or speculative.5
5 E.g., Shotz v. Cates, 256 F.3d 1077, 1082 (11th Cir. 2001) (plaintiff did not have standing because he did not prove an intent to return to defendant’s allegedly inaccessible facility); Freydel v. N.Y. Hosp., No. 00-7108, 242 F.3d 365 (table), 2000 WL 1836755, at *6 (2d Cir. Dec. 13, 2000) (plaintiff lacked standing to sue under Title III because she failed to demonstrate likelihood that she would suffer future injury); Clark v. Burger King Corp., 255 F. Supp. 2d 334, 343 (D.N.J. 2003) (wheelchair user lacked standing to bring claim against restaurants for which he could articulate only a generic plan to visit “some day”); Rosenkrantz, 254 F. Supp. 2d at 1253 (plaintiff lacked standing because he offered only “some day” future travel plans to suggest he might use defendant’s hotel, which was hundreds of miles from his house and in an area he visited only infrequently at best); Deck v. Am. Haw. Cruises, Inc., 121 F. Supp. 2d 1292, 1299 (D. Haw. 2000) (plaintiff’s plans to “look into” taking a cruise in the future merely constituted “speculative and conditional intention” which was insufficient to sustain standing); Cortez v. NBA, 960 F. Supp. 113, 117-18 (W.D. Tex. 1997) (no evidence plaintiff would return to defendants’ events).
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3. Where Plaintiffs Challenge Numerous ATMs, They Have Standing Only For Those ATMs They Actually Would Use
The standing rules also limit the number of locations, such as ATMs, about which a specific individual plaintiff can sue. Where an individual plaintiff challenges multiple locations as being noncompliant with the ADA, the plaintiff only has standing for the locations that the plaintiff proves he or she is likely to visit in the future; as to all other locations, the individual plaintiff lacks standing. E.g., Small, 388 F. Supp. 2d at 88-90 (plaintiff lacked standing regarding all but one of defendant’s stores, where evidence was insufficient to conclude he was reasonably likely to actually visit them); Moreno, 88 F Supp. 2d at 1117-18 (plaintiff who encountered barrier at one gas station did not have standing to challenge same barrier at 82 other gas stations he had not visited and did not show intent to visit). In Conservation Law Found. of New Eng., Inc. v. Reilly, 950 F.2d 38 (1st Cir. 1991), the plaintiffs had evidence regarding injuryin-fact with respect to 10 of 840 facilities at issue, and thus lacked standing for a nationwide injunction regarding the other 830 facilities. Id. at 41-43.
Although arising out of the Constitutional considerations, this result also squares with the prudential standing limitations that a plaintiff cannot assert “legal rights and interests” of third parties. See Part I(C), supra. For any ATM where Plaintiffs cannot prove they have a reasonable likelihood of using in the imminent future, Plaintiffs are effectively asserting ADA claims of other individuals who might use that ATM. That is strictly prohibited. McInnis, 319 F.3d at 69.
B. None Of The Three Individual Plaintiffs Has Standing Applying these rules here, the three individual Plaintiffs lack standing to bring a nationwide Title III claim against Defendants. These three Plaintiffs offer classic speculation
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that violates the mandatory Constitutional standing requirements and in no way provides standing to seek a massive injunction for changes to over 25,000 ATMs.
1. The Three Individual Plaintiffs Admit They Had No First-Hand “Actual Knowledge” Of Defendants’ ATMs At The Time They Filed The Lawsuit
First, the three admit they did not have standing at the time the lawsuit was filed. When asked to describe their first-hand knowledge of the alleged inaccessibility of Defendants’ ATMs, the three Plaintiffs all repeated the exact same answer: Each says she “cannot say” and “do[es] not know whether I have attempted to use” one of Defendants’ ATMs. SMF ¶¶ 2, 6 & 10.6
Their admissions are singularly dispositive of their lack of standing. They admit they cannot say they have “actual knowledge” of an alleged inaccessibility with Defendants’ ATMs, so they could only have acquired such “knowledge” through what their lawyers have told them. That cannot be sufficient, because otherwise none of the cases cited above (see Part II(A)(1)) would have denied standing where plaintiffs lacked first-hand knowledge. Plaintiffs are merely relying on speculation to fulfill their mandatory standing obligations, and this is impermissible.
2. The Three Plaintiffs Do Not Intend To Use Every One Of Defendants’ ATMs -- And In Fact Can Identify Only One ATM They Would Use
But even more problematic for Ms. Asch, Ms. Bose and Ms. Jeraldi, each lacks standing to pursue a nationwide injunction for Defendants’ 25,000-plus ATMs. This Court would have to break new ground, with no case support, to allow Plaintiffs’ nationwide claim to go forward.
When asked which of Defendants’ ATMs she expects to use if she prevails in the lawsuit, each Plaintiff responded that she has no idea which of Defendants ATMs she actually intends to use. Instead, each Plaintiff offers only rote speculation and the most generic conjecture:
6 Plaintiff Bose previously submitted an affidavit to this Court describing her visits to Defendants’ ATMs subsequent to filing the lawsuit. But because standing is determined as of the time the lawsuit is filed, Bose cannot backfill her lack of standing at the time the suit was filed by visiting ATMs later. See Part II.A.1, infra.
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• Ms. Asch says she is “unable to predict” which Defendants’ ATMs I “may have occasion to use.” SMF ¶ 3. She says she might use ATMs “located in various parts of New York City, where I currently live and work, and in various cities around the country while on both business and pleasure travel,” but provides no information about where in New York, what other cities, or anything other than sheer speculation and conjecture. Id. ¶ 3. She admits, “I cannot predict now, where I may travel and when I will have an occasion to need to use an ATM.” Id. ¶ 4.
• Ms. Bose admits she “cannot predict” which ATMs she “may have occasion to use,” and “cannot predict now, where I will be and when I will have occasion to use an ATM.” Id. ¶¶ 6 & 7. She only says she would use any ATMs “close to my place of business in downtown Boston” or “in various cities across the country while on both business and pleasure travel,” but presents no details of where in Boston or what other cities. Id. ¶ 7.
• Ms. Jeraldi expresses an intention to use only one particular ATM: “I do believe that I would be likely to use [Defendants’] ATMs located at retail establishments such as the Costco store located in Waltham, Massachusetts, where I currently shop.” Id. ¶ 11. She identifies no other specific ATM. She only says, “I also believe that I would be likely to use [Defendants’] ATMs while traveling,” but gives no details about where or when she expects to be traveling. Id.
Plaintiffs cannot demand a nationwide injunction based on abject speculation. The
metaphysically possibility of Plaintiffs using an ATM in the future falls far short of mandatory
injury-in-fact. They thus have not provided evidence to support their standing for the nationwide
injunction of Defendants’ 25,000-plus ATMs. Moreno, 88 F. Supp. 2d at 1117-18 (no standing
regarding 82 gas stations plaintiff never visited and was not likely to visit); Small, 388 F. Supp.
2d at 88-89 (plaintiff lacked standing regarding stores he did not have imminent intent to visit);
Clark, 213 F.R.D. at 230 (same); see also supra note 5 at 10, (citing authorities). No one or
three humans could credibly expect to use over 25,000 ATMs. Cf. Molski v. Mandarin Touch
Rest., 385 F. Supp. 2d 1042, 1046 (C.D. Cal. 2005) (finding plaintiff was not reasonably likely to
visit defendants’ 400 locations); Brother, 331 F. Supp. 2d at 1374-75 (“very implausible”
plaintiff would visit defendant’s 54 locations). Plaintiffs do not even provide a sufficient basis
for standing for ATMs located in their home cities, except perhaps the one in Waltham. Small,
388 F. Supp. 2d at 89-90 (living in “close proximity” to defendant’s store is not enough to confer
standing; must show an actual “reasonable likelihood” of using the store).
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A very analogous case is Tyler v. Kan. Lottery, 14 F. Supp. 2d 1220 (D. Kan. 1998) in which a plaintiff sought an injunction to make accessible to his disability every store in Kansas that sold lottery tickets. The court held the plaintiff lacked standing for a statewide injunction because he could not show that he would visit every store. Id. at 1225. In addition, Tyler moved to Wisconsin, which diminished the likelihood he would use many Kansas stores. Id. Here, the three Plaintiffs live in New York or Massachusetts, but seek changes to ATMs in all 50 states, while admitting they “cannot predict” where they might travel. This is entirely inadequate.
All that the three Plaintiffs offer is a “general desire to patronize [defendant’s] stores,” which is insufficient to confer standing. Small, 388 F. Supp. 2d at 89. The three individual Plaintiffs really are acting as “private attorneys general” to vindicate all blind people’s rights under Title III by attempting to modify over 25,000 ATMs nationwide. The ADA prohibits such lawsuits. McInnis, 319 F.3d at 69; Blake v. Southcoast Health Sys., Inc., 145 F. Supp. 2d 126, 134 (D. Mass. 2001) (Young, C.J.) (Title III plaintiff “cannot derive standing by alleging that other disabled individuals may suffer injuries from discrimination by these defendants in the future”). Plaintiffs’ blunt acknowledgement that they cannot identify the Defendants’ ATMs they are likely to use means the three individual Plaintiffs lack standing, and even if they had identified a handful of ATMs they are likely to use, they could not possibly demonstrate a reasonable likelihood of using every single one of Defendants’ 25,000-plus ATMs nationwide.
C. Because The NFB Cannot Demonstrate That Any Of Its Members Have Standing, It Lacks Derivative “Representational” Standing
The analysis now turns back to the NFB. As discussed in Part I above, the NFB lacks standing of its own to assert any claim under Title III. Thus, the only way this case could proceed is if the NFB has “representational” standing, which is derivative standing of an
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organization to assert claims of its individual members. United States v. AVX Corp., 962 F.2d 108, 113 n.5 (1st Cir. 1992).
Representational standing arises if three conditions are all present: 1. One or more members of the organization has standing individually to raise a valid claim against the defendant; and 2. The lawsuit protects an interest “germane” to the organization’s general purpose; and 3. The litigation would not involve the “substantial participation” of the individual members.
Hunt, 432 U.S. at 343. The NFB fails the first test, and NFB could not rectify the problem without immediately
failing the third test. Either way, the NFB lacks “representational” standing. 1. The NFB Admits It Cannot Prove Its Individual Members Have Standing
The NFB lacks standing to represent the claims of its individual members because it has no evidence that any of its members individually have standing.
In contrast to the three individual named Plaintiffs who offer speculation about their standing for a nationwide injunction, the NFB has zero information about its members whose claims the NFB purports to represent. The NFB admits that it does not even have the names and addresses of its members; that information is kept only by the NFB’s local chapters. SMF ¶ 19. The NFB thus cannot say which of its members live or work near any of Defendants’ ATMs. The NFB also admitted it does not track its members’ use of ATMs. Id. ¶ 23 (the NFB “does not have this information”). The NFB also has no information about which of its members are even blind (sighted people may be NFB members), whether their blindness prevents their use of ATMs (e.g., if they are legally blind but can still read an ATM screen), and most importantly, whether they intend or are reasonably likely to use any of Defendants’ ATMs. Id. ¶¶ 20, 21 &
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26. Thus, the NFB is not even in a position to guess how many of its members have standing; only a subset of the NFB’s overall membership will meet all of these factual prerequisites to have individual standing in this lawsuit. As the NFB bluntly admits, it “cannot predict which [of Defendants’] ATMs will likely be used by which NFB member or how often.” Id. ¶ 26.
Yet, the NFB claims it has representational standing as the aggregate of its members’ standing. The NFB is speculating that some unknown number of its members might want to use some unknown number of Defendants’ 25,000-plus ATMs at unknown times. The argument is folly; standing cannot be conferred by this kind of sheer speculation. Small, 388 F. Supp. 2d at 97-98 (no representational standing where plaintiff “ha[s] not identified a single . . . member whose interests would confer associational standing”); Access 123, Inc. v. Markey’s Lobster Pool, Inc., No. CIV. 00-382-JD, 2001 WL 920051, *4 (D.N.H. Aug. 14, 2001) (no representational standing in Title III claim for unidentified members); Concerned Parents to Save Dreher Park Ctr. v. City of W. Palm Beach, 884 F. Supp. 487, 489 (S.D. Fla. 1994) (no standing for Title III claims; “The plaintiff cannot, however, shoehorn an unknown number of supposed, but unknown, victims into their case of action by the mechanism of associational standing.”). As one Court held:
Plaintiffs . . . do not point to any evidence that other such members would stay at the hotel in the near future. . . . [T]he desire of such members to visit the hotel at some unspecified time in the future is insufficient to confer standing on any such members. . . . Therefore, Plaintiffs have not carried their burden of showing the Association’s representational standing. Claypool, 2001 WL 1113109, at *20. The NFB can proceed with representational standing only by actually proving that its individual members have standing. In particular, the NFB must prove that one or more of its members have a reasonable likelihood of using each one of Defendants’ 25,000-plus ATMs.
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E.g., Small, 388 F. Supp. 2d at 97-98 (entity would have standing only if it identified specific members who intended to visit each one of defendant’s facilities); Clark, 213 F.R.D. at 215 (for “each” restaurant at issue, the plaintiff “will have to come forward with evidence” that at least one member “would visit that restaurant”); Clark v. Burger King Corp., 255 F. Supp. 2d 334, 345 (D.N.J. 2003) (entity needed to identify each member that had individual standing, including evidence that each member intended to visit defendants’ facilities).
Because the NFB admits it cannot prove which members are reasonably likely to use each of Defendants’ ATMs, the NFB lacks representational standing for a nationwide injunction.
2. The NFB Cannot Obtain Necessary Evidence From Thousands Of Its Members Without Violating Prudential Standing Prohibitions
The NFB cannot remedy its lack of evidence concerning its members’ intentions to use Defendants’ ATMs because it would violate the third prong of the Hunt test.
An organization cannot have representational standing if the “substantial participation” of its members is required to conduct the litigation. Hunt, 432 U.S. at 343; AVX, 962 F.2d at 116. Explaining this requirement further in Pharm. Care, 429 F.3d at 313-14,7 the First Circuit noted that representational standing is allowable so long as “proof as to member circumstances were ‘limited,’” but “‘it would be improper for claims requiring a fact-intensive-individual inquiry.’” Id. at 314 (citation omitted). The First Circuit affirmed the district court’s conclusion that the plaintiff lacked representational standing, because “there appears to be considerable variation in each member company’s particular circumstances.” Id. The court supported its conclusion by noting that “plenty of injunction cases have been dismissed because of the need for individualized proof.” Id. & n.10.
7 The Pharm. Care test is set forth in the Concurring Opinion of Chief Judge Boudin, which the Panel adopted as the Opinion of the Court with regard to, inter alia, the representational standing issue. Id. at 297.
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Here, the NFB cannot establish its standing without a “fact-intensive-individual inquiry” concerning thousands of its members. First, each member would have to prove that she suffers from a type of blindness that renders her unable to use ATMs. Since 80% of blind people still have “useful vision” (whereas only 10% are totally blind), the mere fact that an NFB member is “legally blind” does not ipso facto mean that person cannot see an ATM’s screen. SMF ¶ 21. Determining whether a blind NFB member can use an ATM is an individual, fact-intensive inquiry. Second, each member would have to prove which of Defendants’ ATMs she is reasonably likely to use, which also would be highly fact-specific for each member. Literally, this lawsuit will require mini-trials for each NFB member. No court anywhere has permitted representational standing requiring such massive member participation in the litigation. Cf. Concorde Gaming, 158 F. Supp. 2d at 1363-64 (entity lacked representational standing for individual members because “any finding of ADA violations requires proof as to each individual claimant”). Under the binding Pharm. Care standard, the NFB lacks representational standing.
3. Ruling That The NFB Lacks Standing Furthers The Purposes Of The ADA
The NFB surely will complain, as it has in the past, that it faces a “Catch 22.” It either has no evidence of its individual members or it cannot obtain that evidence without their participation en masse, so either way it cannot have representational standing. The NFB will conclude that the purpose of this lawsuit would be vitiated if the Court follows the Hunt test.
But the Supreme Court and the First Circuit have rejected exactly similar pleas to avoid standing requirements. In Sierra Club v. Morton, 405 U.S. 727, 740 (1972), the Supreme Court noted that the purpose of standing doctrine (“put[ting] the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome”) “would be undermined
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were we to construe [a standing provision] to authorize judicial review at the behest of organizations . . . who seek to do no more than vindicate their own value preferences through the judicial process.” Following this conclusion, the First Circuit rejected the plea by an organization that it should not have to prove its members’ standing separately for over 840 facilities. Conservation Law Found., 950 F.2d at 43. Because the ADA does not authorize “private attorneys general” lawsuits, McInnis, 319 F.3d at 69, no reason exists that the NFB should be allowed to pursue its claims without evidence of its members’ intentions to use Defendants’ ATMs. Clark, 213 F.R.D. at 210 n.9 (the purpose of the ADA would be “frustrated” if organization could file lawsuit instead of the individuals who are suffering the alleged discrimination).
That standing requirements can impose harsh results is not a relevant consideration. Chief Judge Young once held, clearly against his wishes, that a plaintiff lacked standing under Title III because the alleged discrimination at the defendant’s facility was so severe that she died as a result of it -- so no possibility of future harm existed. Blake, 145 F. Supp. at 130-37.
Furthermore, the NFB is improperly trying to use this lawsuit to usurp the ongoing rulemaking proceedings. If the NFB could demand a nationwide, every-ATM injunction based on the speculation of use of each ATM, in theory the NFB could sue every major ATM operator and demand changes to their ATMs at the NFB’s whim. The NFB effectively would moot the Department of Justice’s time-consuming efforts, involving comments from thousands of interested parties, to effectuate industry-wide rules. The standing rules of Title III prevent exactly this type of rulemaking by litigation.
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As the late astronomer Carl Sagan famously penned, “[E]xtraordinary claims require extraordinary proof.”8 Here, the NFB is asking for an extraordinary remedy of physical changes to 25,000 ATMs. The NFB thus imposed upon itself the enormous burden of proffering admissible evidence that the changes at each one of the ATMs is going to benefit the life of one or more of the NFB’s blind members. Holding that the NFB lacks standing in the absence of this enormous quantity of required evidence powerfully affirms the purposes and design of the ADA.
CONCLUSION For these reasons, Defendants E*TRADE Access, Inc., E*TRADE Bank, Cardtronics, Inc. and Cardtronics, LP, respectfully request that the Court grant Defendants’ motion and enter summary judgment in Defendants’ favor on Counts III, IV and V of the Third Amended Complaint on the grounds that (1) the NFB lacks organizational standing under § 12188, (2) the individual Plaintiffs Asch, Bose and Jeraldi lack standing, and (3) the NFB lacks representational standing to pursue a nationwide injunction.
Respectfully submitted, /s/ Douglas P. Lobel Douglas P. Lobel (pro hac vice) David A. Vogel (pro hac vice) ARNOLD & PORTER LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 720-7000
8 Carl Sagan, Broca’s Brain: Reflecting on the Romance of Science, p. 62 (Ballantine 1974).
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Dated: May 4, 2006

Joseph L. Kociubes, BBO # 276360 Jenny K. Cooper, BBO # 646860 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Counsel for Defendants E*TRADE Access, Inc., E*TRADE Bank, Cardtronics, Inc. and Cardtronics, LP

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

COMMONWEALTH OF MASSACHUSETTS, )

et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 03 11206 MEL

)

E*TRADE ACCESS, INC., et al.,

)

)

Defendants.

)

__________________________________________)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON COUNT II DUE TO LACK OF STANDING

Dated: May 16, 2006

Respectfully submitted,
Douglas P. Lobel (pro hac vice) David A. Vogel (pro hac vice) ARNOLD & PORTER LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 720-7000
Joseph L. Kociubes, BBO # 276360 Jenny K. Cooper, BBO # 646860 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Counsel for Defendants E*TRADE Access, Inc., E*TRADE Bank, Cardtronics, Inc. and Cardtronics, LP

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TABLE OF CONTENTS Page
PROCEDURAL POSTURE OF COUNT II .................................................................................. 3 STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE..................................... 4 STANDARD OF REVIEW ............................................................................................................ 5 ARGUMENT.................................................................................................................................. 6 I. ONLY A VERY NARROW NUMBER OF PLAINTIFFS COULD HAVE STANDING
TO ASSERT THE CLAIM FOR UNLIMITED FEE-FREE TRANSACTIONS .................... 6 A. The Plaintiff Must Not Be An E*TRADE Bank Customer
Due To The Alleged Inaccessibility Of Defendants’ ATMs.............................................. 6 B. The Plaintiff Must Need The Requested Policy Change
In Order To Become An E*TRADE Bank Customer ........................................................ 8 C. The Plaintiff Must Intend To Become An E*TRADE Bank Customer.............................. 9 D. These Requirements Impose Eight Specific Facts The
Plaintiff Must Allege To Have Standing Under Count II................................................. 10 II. THE INDIVIDUAL PLAINTIFFS LACK STANDING........................................................ 10
A. Plaintiffs’ Admissions In Discovery Responses Concede They Lack Standing............... 10 B. Plaintiffs Cannot Prove The Policy Modification They Seek Is “Necessary”.................. 13 III. THE NATIONAL FEDERATION OF THE BLIND LACKS ORGANIZATIONAL AND REPRESENTATIONAL STANDING..................................... 14 IV. THE COMMONWEALTH OF MASSACHUSETTS LACKS PARENS PATRIAE STANDING .............................................................................. 15 CONCLUSION............................................................................................................................. 18

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Defendants recently argued that the Plaintiffs do not have standing for a nationwide injunction regarding Defendants’ 25,000-plus ATMs under Counts III, IV and V of the Third Amended Complaint. See Defendants’ Motion for Summary Judgment on Counts III, IV and V Due to Lack of Standing. For similar reasons, Plaintiffs do not have standing to demand modifications to Defendant E*TRADE Bank’s policies concerning ATM transaction fees as Plaintiffs now demand in Count II (asserting a claim under ADA § 12182(b)(2)(A)(ii)).
Plaintiffs do not allege E*TRADE Bank’s policies on their face are discriminatory. Instead, Plaintiffs demand that E*TRADE Bank’s policies be modified as a proposed solution to the alleged inaccessibility of Defendants’ ATMs. In order to have standing to make this claim, the Plaintiffs must show that they would become E*TRADE Bank customers but for the alleged inaccessibilities of the ATMs. Disabled Ams. for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (“Disabled Ams.”) (plaintiff must be “deterred” from using the public accommodation “because of” the alleged inaccessibility). Plaintiffs have not come close to making this showing, for many of the same reasons that they lack standing to challenge the Defendants’ ATMs themselves:
Individual Plaintiffs. The three individual Plaintiffs effectively admit that they cannot establish standing. One cannot say that she intends to become an E*TRADE Bank customer; the others have no knowledge of where the Defendants’ ATMs are located or show any intention of using specific ATMs of the Defendants. As a result, there is no evidence that the “but for” reason they are not E*TRADE Bank customers is the alleged inaccessibility of the Defendants’ ATMs. Instead, the individual Plaintiffs’ admissions prove they are not E*TRADE Bank customers because the Defendants’ ATMs are not convenient to places they regularly visit. Furthermore, these three Plaintiffs ignore that E*TRADE Bank already has two policies in place
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that allow them to achieve their alleged goals of fee-free cash withdrawals from an E*TRADE Bank account without using Defendants’ ATMs. Plaintiffs are seeking relief that would give them superior service to other customers, a remedy the ADA prohibits.
The NFB. The private organizational Plaintiffs, the National Federation of the Blind and its Massachusetts chapter (jointly, “the NFB”), lack standing for the reasons discussed in Defendants’ Motion on Counts III, IV and V. The NFB has no standing of its own under Title III of the ADA. At best, the NFB can only assert claims of its actual members, so-called “representational” standing. But the NFB admits it has no evidence that any of its actual members individually have standing, so the NFB cannot make the required showing to prove its representational standing.
Commonwealth of Massachusetts. Finally, the Commonwealth of Massachusetts (“Commonwealth”) lacks parens patriae standing under Title III of the ADA. Unlike other civil rights acts, Title III is intended to remedy “individual” claims, which must be proven individually. The statute has a narrow remedial provision that excludes enforcement by state governments. These unique aspects of Title III deprive a state government from usurping the authority of the federal Attorney General to enforce Title III provisions prophylactically. Even if a state theoretically could have parens patriae standing under Title III, here the Commonwealth lacks evidence that even a single Massachusetts citizen has an actual need for the relief the Commonwealth demands. No court anywhere has found parens patriae standing on the basis of pure speculation, which is all the Commonwealth presents here.
For these reasons, the Court should enter judgment for Defendants on Count II. Because both the facts and the law governing Plaintiffs’ Count II is derivative of their claims against Defendants’ nationwide ATM fleet (Counts III, IV and V), Defendants respectfully request that
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the Court first read and consider the standing motion on Counts III, IV and V before proceeding with this motion on Count II.
PROCEDURAL POSTURE OF COUNT II In Count II, Plaintiffs assert a claim under ADA § 12182(b)(2)(A)(ii), which requires a defendant to make any “reasonable modifications” to its “practices, policies or procedures” if the modification is “necessary” to “afford” its services to disabled persons, and if the modification would not “fundamentally alter” the “nature” of the service. 42 U.S.C. § 12182(b)(2)(A)(ii). Defendants moved for summary judgment on Count II, pointing out that Plaintiffs had never articulated the precise “reasonable modification” of E*TRADE Bank’s policies that they sought.1 In response, Plaintiffs proposed that E*TRADE Bank modify its policy to allow E*TRADE Bank’s blind customers to use any non-E*TRADE ATM without paying a fee. This represents a change from current policy, as discussed below. Like most banks, E*TRADE Bank does not charge its customers to use ATMs that are branded with its logo (“Defendants’ ATMs”). Customers can access their E*TRADE Bank account through non-Defendant ATMs, but both E*TRADE Bank and the operator of that other ATM assess the customer a small service fee for the transaction. Plaintiffs contend that, because Defendants’ ATMs are inaccessible to blind people, blind customers of E*TRADE Bank are disadvantaged: sighted customers receive fee-free access to (allegedly inaccessible) Defendants’ ATMs, but blind customers are effectively forced to use “accessible,” non-Defendant ATMs to access their account, thereby incurring transaction fees. Thus, Plaintiffs argue, E*TRADE
1 The Plaintiffs had at one time argued that E*TRADE Bank, which provides purely electronic banking services, should “modify” its services to build “brick and mortar” offices around the country. Of course, that request is both facially unreasonable and would “fundamentally alter” the “nature” of E*TRADE Bank’s purely electronic services. Plaintiffs cannot credibly still be pursuing this argument, although they have never directly acknowledged that they have abandoned it. The Court rightly ignored this earlier argument and Defendants shall ignore it here too.
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Bank’s blind customers incur a higher cost than sighted customers for using banking services. Plaintiffs reason that if E*TRADE Bank’s blind customers can use non-Defendant ATMs for free, they can receive the same free access to their E*TRADE accounts as sighted customers.
In its February 21, 2006, Order, the Court held that the burden has now shifted to Defendants to show that Plaintiffs’ proposed modification would “fundamentally alter” the nature of E*TRADE Bank’s services. The plain language of the statute also gives Defendants an affirmative defense that the modification is not “necessary” to “afford” its service to blind customers. The Court has never analyzed whether any or all of the Plaintiffs have standing for this claim.
STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE The following material facts are not in genuine dispute, and are set forth in detail with supporting evidence in the Statement of Material Facts as required by Local Rule 56.1 (hereinafter “SMF (II)”).2 E*TRADE Bank allows its qualifying customers an unlimited number of transactions at non-Defendant ATMs if the customers have at least $5,000 in their E*TRADE account. SMF (II) ¶ 1. If a customer incurs fees for using a non-Defendant ATM, E*TRADE Bank reimburses those fees. Id. Instead of obtaining a standard ATM card, any customer of E*TRADE Bank may obtain an “E*TRADE Bank ATM Check Card by Visa®” (the “Visa® Check Card”). SMF (II) ¶ 2. The Visa® Check Card can be used at any ATM just like a regular ATM card, either at one of Defendants’ ATMs or any other ATM. Id. In addition, the Visa® Check Card can be used at
2 This is a different Statement than the one filed with Defendants’ previous Motion on Counts III, IV and V (“SMF (I)”).
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over 18 million locations worldwide that accept the Visa® credit card in place of cash. Id. E*TRADE Bank offers the Visa® Check Card free at no extra cost. Id.
One of the features of the Visa® Check Card is that an E*TRADE Bank customer can obtain “cash back” from a store when making a purchase with the Visa® Check Card -- known as the “point of sale.” When using the Visa® Check Card for a purchase, many stores allow the consumer to obtain cash in addition to whatever good or service she is purchasing. SMF (II) ¶ 3. This “cash back” is a direct withdrawal from the person’s account at E*TRADE Bank -- but it does not use an ATM and the customer is not assessed any fee. Id. An E*TRADE Bank customer thus can make an unlimited number of cash withdrawals -- and can withdraw an unlimited amount of -- cash from her account in this manner without ever paying a transaction fee.
The use of a Visa® Check Card at a point of sale to make a “cash back” withdrawal from an E*TRADE Bank is particularly useful for blind customers. It only requires the customer to swipe the card through a magnetic reader at the store’s register and then enter a Personal Identification Number (“PIN”) on a standard nine-digit keypad. SMF (II) ¶ 4.
STANDARD OF REVIEW As the thorough analysis of ADA standing precedent makes clear, see Memorandum in Support of Defendants’ Motion for Summary Judgment on Counts III, IV and V Due to Lack of Standing (“Def. Mem.”) at 5-7, Plaintiffs only have standing if an alleged inaccessibility directly injures them, and if the relief they seek in the lawsuit will remedy their alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Applied to the ADA, the Plaintiffs must show that they actually intend to use E*TRADE Bank’s services to obtain the relief they seek. Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003); Def. Mem. at 8-11. Plaintiffs
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also must show that the alleged inaccessibility at issue (here, at the ATMs) is the “but for” reason they do not use E*TRADE Bank’s services. Disabled Ams., 405 F.3d at 64 (plaintiff must be “deterred” from using the public accommodation “because of” the alleged inaccessibility).
Plaintiffs have the burden of establishing standing. Lujan, 504 U.S. at 569-70 & n.4. At summary judgment, Plaintiffs must come forward with admissible evidence to establish their standing, or else Defendants are entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment for defendants appropriate where plaintiffs fail to establish all of their burdens); National Fed’n of the Blind of Mo. v. Cross, 184 F.3d 973 (8th Cir. 1999) (affirming summary judgment for defendants because the NFB lacked standing).
ARGUMENT Applying the well-settled ADA standing rules to Plaintiffs’ Count II, the individual Plaintiffs could have standing to assert Plaintiffs’ claim only under a very narrow set of circumstances, none of which exist before the Court. The NFB lacks standing under Count II for the same reasons it lacks standing under Counts III, IV and V. The Commonwealth of Massachusetts claims it has parens patriae standing on behalf of Massachusetts citizens, but that does not exist under Title III of the ADA. I. ONLY A VERY NARROW NUMBER OF PLAINTIFFS COULD HAVE STANDING TO ASSERT THE CLAIM FOR UNLIMITED FEE-FREE TRANSACTIONS A plaintiff could only have standing to assert the claim in Count II if she could prove eight specific facts, some of which are so implausible that no person likely can satisfy them all. A. The Plaintiff Must Not Be An E*TRADE Bank Customer
Due To The Alleged Inaccessibility Of Defendants’ ATMs A plaintiff who had standing under Count II would need to contend that she is not currently an E*TRADE Bank customer solely because Defendants’ ATMs are inaccessible. If
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the alleged inaccessibility of the ATMs was not the sole reason, that person has not been injured by the alleged inaccessibility. See Disabled Ams., 405 F.3d at 64. The Court can see that this factual issue overlaps with the entire factual dispute in Counts III, IV and V for several separate reasons.
First, if Defendants ultimately prevail on Counts III, IV and V and prove that the ATMs are all legally accessible as required by the ADA, then no plaintiff could legally assert a claim under Count II either -- there would be no “inaccessibility” that causes the plaintiff to be unable to enjoy E*TRADE Bank’s services. For this reason, Count II is factually dependent upon, and subject to, the factual resolution of Counts III, IV and V.3
Second, a plaintiff would have to prove that her blindness renders her unable to use an ATM. As Defendants discuss in their Motion regarding Counts III, IV and V, there are many types of blindness, and 80 percent of legally blind people still have “useful” vision -- only 10 percent are totally blind. See Def. Mem. at 18. So merely being “legally blind” does not mean a person cannot use an ATM.
Third -- and most critical -- the plaintiff would have to prove that she is physically located near Defendants’ ATM. Otherwise, she could not reasonably assert that the alleged inaccessibility of those ATMs is the sole reason she is not a customer of E*TRADE Bank; instead, the inconvenient location of the ATMs could be a major reason she is not an E*TRADE Bank customer. If Defendants’ ATMs were not convenient to her, she would be paying
3 In their March 3, 2006, letter to the Court, Plaintiffs indicated that they intended to move quickly on summary judgment on Count II. That, of course, would be impossible because Plaintiffs would have to prove no genuine dispute existed that Defendants’ ATM are not accessible, a question of mixed fact and law that Defendants vehemently contest.
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transaction fees anyway -- whether sighted or blind -- because she would have to use nonDefendant ATMs.
Finally, the plaintiff would have to prove that she had “actual knowledge” of her claim at the time she filed the lawsuit. See Def. Mem. at 8-9. This would include, for Count II, actual knowledge of the alleged inaccessibility of the ATMs, as well as knowledge of E*TRADE Bank’s terms of services for ATM use.
These four issues overlap with the standing issue on Counts III, IV and V that Defendants have separately briefed. Thus, the only plaintiffs who could have standing under Count II are those who also have standing under Counts III, IV and V.
B. The Plaintiff Must Need The Requested Policy Change In Order To Become An E*TRADE Bank Customer
In order to have standing under Count II, a plaintiff must have more than just standing under Counts III, IV and V. The plaintiff also must show that E*TRADE Bank’s current policies “injure” her, and that the relief she seeks would remedy that injury. Lujan, 504 U.S. at 560. Under the unique facts here, it will be impossible for someone to meet that standard.
To be “injured” by E*TRADE Bank’s current policies, a plaintiff first must show that she would not qualify for unlimited fee-free ATM transactions. Such a plaintiff would have to prove that she is not reasonably likely to have an E*TRADE Bank account containing $5,000 in it. SMF (II) ¶ 1. This condition will eliminate some number of blind persons whom Plaintiffs contend would have standing.
But even if a plaintiff could prove she would not “qualify” for unlimited ATM transactions, she would have to prove she cannot use E*TRADE Bank’s services at all under E*TRADE Bank’s current policies. The ADA requires a policy modification only if it is
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“necessary” for a person to obtain a public accommodation. 42 U.S.C. § 12182(b)(2)(A)(ii). The Supreme Court clarified that “necessary” means that the person cannot use the public accommodation at all, as distinct from being able to use it some, but just not as much as the person would like. When a disabled golfer requested the use of a golf cart to compete in the defendant’s golf tournaments, the Supreme Court distinguished why the request was “necessary” as opposed to merely seeking a convenience or improvement:
Petitioner does not contest that a golf cart is a reasonable modification that is necessary if Martin is to play in its tournaments. Martin’s claim thus differs from one that might be asserted by players with less serious afflictions that make walking the course uncomfortable or difficult, but not beyond their capacity. In such cases, [the requested policy change] might be reasonable but not necessary. PGA Tours, Inc. v. Martin, 532 U.S. 661, 682 (2001) (“Martin”). It is hard to conceive that any person could meet this standard here. Any customer can obtain unlimited cash withdrawals by way of “cash back” in purchases using their Visa® Check Cards when making purchases.4 That gives a customer unrestricted, free access to all their cash. A person might -- like in the Martin case -- contend that fee-free ATM transactions would be convenient or helpful, but it is inconceivable that such a change would be “necessary” for that person to be an E*TRADE Bank customer. C. The Plaintiff Must Intend To Become An E*TRADE Bank Customer Finally, a plaintiff would have to prove that she would actually become a customer of E*TRADE Bank if she obtains the relief she seeks. Having no intent to use E*TRADE Bank’s
4 Indeed, the Visa® Check Card’s acceptance at 18 million stores worldwide in great part dispenses with the need to even have cash in the first place. For a blind person, the Visa® Check Card is much more secure than cash. Paper currency is indistinguishable by feel; a blind person would need another person’s assistance to identify what bills she has in her wallet or purse. Using the Visa® Check Card eliminates this problem. Furthermore, unlike cash, if a blind person’s wallet or purse is stolen, no money is lost -- the card can be cancelled and replaced.
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services in the future would mean she has no standing under Title III. See Def. Mem. at 9-11 (citing numerous cases for that proposition).
D. These Requirements Impose Eight Specific Facts The Plaintiff Must Allege To Have Standing Under Count II
In summary, to prove standing under Count II, a plaintiff would have to present proof of all of the following facts:
1. Her blindness is of the type that does not permit her to read an ATM’s screen. 2. She had actual knowledge of E*TRADE Bank’s policies concerning fee-free
transactions at the time the lawsuit was filed. 3. She is not currently an E*TRADE Bank customer. 4. The reason she is not a Bank customer is solely because of the alleged
inaccessibility of Defendants’ ATMs. 5. Defendants’ ATMs are located immediately near her home or place of work or at
places she actually frequents and shops. 6. She intends to become an E*TRADE Bank customer if she prevails on Count II. 7. She would not qualify for unlimited “fee-free” transactions under E*TRADE
Bank’s terms of service. 8. She cannot use E*TRADE Bank’s services at all, even with unlimited cash back
withdrawals in purchases using a Visa® Check Card. II. THE INDIVIDUAL PLAINTIFFS LACK STANDING
Given the multiple unusual facts that a person would have to allege to have standing under Count II, and based on the admissions in their discovery responses, the three named Plaintiffs -- Theresa Jeraldi, Jennifer Bose and Adrienne Asch -- all lack standing to request a modification of E*TRADE Bank’s policies.
A. Plaintiffs’ Admissions In Discovery Responses Concede They Lack Standing Ms. Jeraldi outright admits she does not have a present intention of becoming an E*TRADE Bank customer. When asked if she intended to use E*TRADE Bank’s services, she candidly responded that, “it is impossible to predict whether, at some unknown point in the
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future, I will be likely to use unidentified services of E*TRADE Bank.” SMF (II) ¶ 5. Her admission violates the Constitutional requirement that there be at least a reasonable likelihood that she would become a Bank customer if she wins. Def. Mem. at 11-14. This kind of “some day” scenario does not meet her Constitutional obligation. Lujan, 504 U.S. at 564 (“Such ‘some day’ intentions -- without any description of concrete plans, or indeed even any speculation of when the some day will be -- do not support a finding of ‘actual or imminent’ injury that our cases require.”). Def. Mem. at 10. She cannot possibly fix her answer now, because standing is measured at the time the lawsuit is filed, so her change of mind years into the litigation cannot backfill her lack of standing.
Ms. Bose lacks standing because she admitted the alleged lack of inaccessibility at the ATMs is not the “but for” reason she is not an E*TRADE Bank customer. When asked which of Defendants’ ATMs she would use if the ATMs were changed, Ms. Bose could not identify a single specific ATM she would use. Instead, she answered that her use of Defendants’ ATMs essentially was unpredictable, based on a potential need to withdraw cash from time to time as she travels about. SMF (II) ¶ 6. This random use of unknown ATMs stands in stark contrast to an intention to use Defendants’ ATMs in order to be an E*TRADE Bank customer. If Ms. Bose intended on being an E*TRADE Bank customer, she would have identified specific Defendants’ ATMs close to her home or business that would provide convenient places for her to access E*TRADE Bank’s services.
Ms. Bose provides no evidence that would support the Constitutional requirement that the alleged inaccessibility of the ATMs is the “but for” reason she is not a Bank customer. Instead, she simply has never considered being an E*TRADE Bank customer. Ms. Bose admitted she “do[es] not know the terms and conditions of E*TRADE’s banking services.” SMF (II) ¶ 7.
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Ms. Bose has no standing to demand changes to E*TRADE Bank’s policies when she cannot assert that (1) the alleged inaccessibility of the ATMs is the sole reason she is not a Bank customer now, or (2) there is a reasonable likelihood she would use E*TRADE Bank’s services in the future if she prevails.
Finally, Ms. Asch lacks standing for the same reason as Ms. Bose. She does not identify a single specific ATM of Defendants’ that she would use if it were modified to her liking. SMF (II) ¶ 8. Instead she admits that she is “unable to predict” which Defendants’ ATMs I “may have occasion to use.” Id. She says she might use ATMs “located in various parts of New York City, where I currently live and work, and in various cities around the country while on both business and pleasure travel,” but provides no information about where in New York, what other cities, or anything other than sheer speculation and conjecture. Critically important, she admits, “I cannot predict now . . . when I will have an occasion to need to use an ATM.” Id. ¶ 9. This proves she has no intention of being an E*TRADE Bank customer; if she did have such an intention, she would have been able to “predict now” that the “occasions” of using Defendants’ ATMs would include accessing E*TRADE Bank’s services.
Ms. Asch does offer the conclusory statement, without any details, that she is “likely to use” E*TRADE Bank’s services because she is “continually looking for accessible banking services and currently [is] looking for a bank that offers a large fleet of independently accessible ATMs.” SMF (II) ¶ 10. This conclusion is insufficient to avoid summary judgment because she offers no evidence to support her assertion. To determine if she has Constitutional standing, the Court should consider all available evidence that would help predict if she would use E*TRADE Bank’s services in the future, including her past use, the availability of Defendants’ ATMs near places she actually frequents, and so forth. See Def. Mem. at 11-14. But Ms. Asch’s admissions
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establish that (1) she cannot say she has ever used one of Defendants’ ATMs, (2) she cannot say which specific ATM she intends to use, and (3) she “cannot predict” why she would use any of Defendants’ ATMs. Nothing about her past history and/or the proximity of Defendants’ ATMs near places she visits proves that she would in fact become a customer of E*TRADE Bank.5
B. Plaintiffs Cannot Prove The Policy Modification They Seek Is “Necessary” In addition to these problems, none of the individual Plaintiffs has satisfied the additional prerequisites to have standing under Count II. None has shown that she would not qualify for unlimited fee-free ATM transactions, or that the use of a free Visa® Check Card is insufficient to meet her needs. Indeed, no evidence exists that the individual Plaintiffs have even thought about or know the existence of these solutions. Indeed, not only is the policy modification Plaintiffs seek not “necessary,” it is actually barred by the ADA. It is well settled that in seeking a “reasonable modification” to a policy, a disabled person cannot obtain a better deal than other non-disabled customers because obtaining a better deal would constitute a “fundamental alteration” of the service no matter how trivial the modification might be. Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir. 1996) (policy modification was not required by ADA because it would have given plaintiff a right that nondisabled persons did not have); Hartnett v. Fielding Graduate Inst., 400 F. Supp. 2d 570, 576 (S.D.N.Y. 2005) (requested modification was really just a “personal preference” over others and thus not required); see also Martin, 532 U.S. at 682 (minor modification giving disabled an
5 Ms. Asch’s statement about her looking for a bank with a “large fleet” of ATMs is on its face not plausible. Ms. Asch admits that she has used several Bank of America ATMs. SMF (II) ¶ 10. Bank of America’s website states that it has over 7,000 “talking” ATMs currently deployed, which surely constitutes a “large fleet.” Yet Ms. Asch provides no reason why she is not currently a Bank of America customer. If indeed the lack of accessible ATMs was the “but for” reason she is not currently an E*TRADE Bank customer, then Ms. Asch surely would be a Bank of America customer or the current customer of some equally large bank with numerous “talking” ATMs. Her own words proves that her assertion about her “intent” to be an E*TRADE Bank customer is simply not credible.
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“advantage” over others is not required by ADA); Dudley, 333 F.3d at 307-08 (recognizing that rule in Martin).
This rule is fatal to Plaintiffs’ claim. Unlimited fee-free use of all ATMs has become something of a “holy grail” in the banking industry. Defendants’ repeated search of bank websites reveals that no bank offers unlimited, fee-free use at any ATMs without at least a minimum deposit requirement (such as, for example, E*TRADE’s $5,000 minimum) or some kind of other qualifying condition. Plaintiffs themselves admit that they know of no bank anywhere that gives blind customers unlimited fee-free transactions. SMF (II) ¶ 11. Thus, if Plaintiffs did not qualify for unlimited fee-free ATM use under E*TRADE’s current policy, the proposed modification would result in not merely equal but in fact far better service than other E*TRADE customers -- the use of any ATM anywhere even with a modest account balance. This relief is not within the scope of the ADA.
Defendants are entitled to summary judgment on Count II with respect to the claims of the three individual Plaintiffs. III. THE NATIONAL FEDERATION OF THE BLIND LACKS
ORGANIZATIONAL AND REPRESENTATIONAL STANDING First, the NFB lacks “organizational” standing under Count II for precisely the same reasons it lacks organizational standing under Counts III, IV and V. See Def. Mem. at 5-6. The NFB itself is not a person “being subjected to discrimination,” so it is not a person authorized to bring a claim under Title III. 42 U.S.C. § 12188(a). Second, the NFB lacks “representational” standing. The NFB has no evidence that any of its actual members meet all of the factual prerequisites for standing under Count II -- and, indeed, the NFB has almost no evidence about its members. See Def. Mem. at 14-19. The NFB
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cannot pursue a claim involving E*TRADE Bank’s services without admissible evidence that at least one or more of its members meets all eight of the factors required to establish standing under Count II. Id. Title III does not authorize the NFB to bring a suit as a “private attorney general.” McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 69 (1st Cir. 2003). IV. THE COMMONWEALTH OF MASSACHUSETTS
LACKS PARENS PATRIAE STANDING Finally, the Commonwealth lacks standing under Count II. In discovery responses, the Commonwealth alleged its standing under parens patriae doctrine. However, such standing does not exist under Title III of the ADA.6 Determining whether a state has parens patriae standing must be analyzed under the specific federal statute that the state seeks to enforce. Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332, 341 (1st Cir. 2000) (“DeCoster”); Connecticut v. Physicians Health Servs. of Conn., 287 F.3d 110, 120 (2d Cir. 2002) (“Physicians Health”). Courts routinely deny parens patriae standing where a statute does not evince a Congressional intent to allow a state an enforcement role. E.g., Hawaii v. Standard Oil Co., 405 U.S. 251, 264-65 (1972) (language and legislative history of § 4 of Clayton Act did not permit state to bring parens patriae action for damages); Physicians Health, 287 F.3d at 121 (no parens patriae standing under ERISA); Illinois v. Life of Mid-Am. Ins. Co., 805 F.2d 763, 766 (7th Cir. 1986) (Congress did not evince intent to allow state to file parens patriae claim under RICO). Title III of the ADA does not evince any intention to allow state enforcement. Lawsuits for injunctions are restricted to persons “being subjected to discrimination.” 42 U.S.C.
6 This argument equally deprives the Commonwealth of standing under Counts III, IV and V for even an injunction governing Massachusetts-only ATMs.
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§ 12188(a)(1); see Def. Mem. at 5-6 (entities that are not being subjected to discrimination cannot sue under Title III). Governmental enforcement is expressly provided only to the U.S. Attorney General in a lengthy and carefully-crafted provision. 42 U.S.C. § 12188(b). This careful Congressional wording indicates that states were deliberately excluded from having an enforcement role. Cf. Physicians Health, 287 F.3d at 121 (“carefully drafted” enforcement provisions of ERISA did not mention role for states); see also DeCoster, 229 F.3d at 339 (“it remains questionable whether [Supreme Court precedent] would permit a State to seek parens patriae standing . . . because States are not assigned a special role in the enforcement” of the statute at issue).
By contrast, states do have parens patriae standing under federal civil rights laws that have broad enforcement provisions, particularly those permitting lawsuits by any person who is “aggrieved” or who “alleges” discrimination. Physicians Health, 287 F.3d at 121 (citing authorities). The enforcement provision of Title III of the ADA, however, is demonstrably not such a broadly worded statute. It limits claims to the persons actually “being subject to discrimination.” By comparison, Titles I and II of the ADA permit a lawsuit by any person “alleging discrimination,” which courts hold is far broader than Title III, and allow suits by persons or entities other than just the victims of the alleged discrimination. See Def. Mem. at 5-6 (citing authorities). Title III of the ADA simply does not have the “broad” enforcement provisions of typical civil rights statutes that give rise to parens patriae standing.
The Commonwealth’s assertion of parens patriae standing contravenes the specific purposes of the statute at issue. Title III of the ADA imposes a “basic requirement that the need of a disabled person be evaluated on an individual basis.” Martin, 532 U.S. at 690. To establish standing under this “basic requirement,” the Court must “scrutinize[ ] the likelihood that a
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plaintiff, absent the barrier, would have frequented the public accommodation in the future.” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003). Both “jurisdiction[al] principles and the terms of the statute” require that this analysis must be “site-specific.” Moreno v. G&M Oil Co., 88 F. Supp. 2d 1116, 1117 (C.D. Cal. 2000). When claims are raised for multiple individuals, “any finding of ADA violations requires proof as to each individual claimant.” Association for Disabled Ams., Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1363-64 (S.D. Fla. 2001) (emphasis added).
Contrary to the highly individualized fact-finding and relief required by Title III, the Commonwealth raises claims without citing even a single Massachusetts citizen who requires the relief it seeks in Count II.7 The Commonwealth thus impermissibly replaces highly individualized fact-finding with sheer speculation about the potential benefits of this litigation. Lujan, 504 U.S. at 560-61 (injury must be “‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical’”). Indeed, Defendants have not found a single parens patriae decision nationwide where a State proceeded (as the Commonwealth wishes to do here) without evidence of at least a single citizen who would have a valid claim.8
Therefore, the Commonwealth lacks parens patriae standing to bring a claim under Title III, which means it does not have standing either to assert the claim in Count II.
7 Two of the individual Plaintiffs (Ms. Bose and Ms. Jeraldi) are Massachusetts citizens, but because neither of them has proven standing to have a claim here, the Commonwealth cannot derive parens patriae standing from them either. 8 Defendants are aware of only a single authority affording parens patriae standing under ADA Title III. Vacco v. Mid Hudson Med. Group, P.C., 877 F. Supp. 143 (S.D.N.Y. 1995). The Vacco decision, however, does not address Title III’s narrow enforcement provision of § 12188, compared to the much broader provisions of Titles I and II, and its loose conclusion is inconsistent with the First Circuit’s analyses in McInnis-Misenor, 319 F.3d at 69 (Title III claims are limited to persons who are the actual victims of discrimination), as well as DeCoster. Furthermore, in Vacco the state identified specific citizens who had a valid claim, whereas here the Commonwealth cannot identify a single citizen for whom the requested modification is “necessary.” It offers only pure speculation as to its standing.
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CONCLUSION For these reasons, the Court should grant Defendants’ motion and enter judgment for

Defendants on Count II due to all Plaintiffs’ lack of standing.

Respectfully submitted,

/s/ Douglas P. Lobel Douglas P. Lobel (pro hac vice) David A. Vogel (pro hac vice) ARNOLD & PORTER LLP 1600 Tysons Boulevard McLean, Virginia 22102 (703) 720-7000
Joseph L. Kociubes, BBO # 276360 Jenny K. Cooper, BBO # 646860 BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000

Dated: May 16, 2006

Counsel for Defendants E*TRADE Bank, E*TRADE Access, Inc., Cardtronics, LP, and Cardtronics, Inc.

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 Case 1:03-cv-11206-NMG Document 235 Filed 03/02/07 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

. . . . . . . . . . . . . . . . . . . . . . . . .

.

COMMONWEALTH OF MASSACHUSETTS, et al. .

.

Plaintiffs,

.

.

v.

.

.

E*TRADE ACCESS, INC., et al.

.

.

Defendants.

.

. . . . . . . . . . . . . . . . . . . . . . . . .

C.A. No.: 03 11206-MEL

COMMONWEALTH’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON COUNT II DUE TO LACK OF STANDING

Defendants seek to challenge the Commonwealth of Massachusetts’s parens patriae

standing on just one out of the seven counts of Plaintiffs’ Third Amended Complaint: Count II,

alleging that the policy of E*TRADE Bank to charge blind consumers for their use of accessible

non-Bank ATMs, when its own ATMs are inaccessible, violates the reasonable modification of policy mandate of Title III of the Americans With Disabilities Act (“ADA”).1

Defendants ignore the vigorous parens patriae jurisprudence that the United States

Supreme Court and the lower federal courts have developed affording States the right to seek, on

behalf of their residents, the protections of federal civil rights statutes such as Title III of the ADA to “stop [discrimination] in its tracks.”2

1 Defendants’ Motion for Summary Judgment on Counts III, IV and V Due to Lack of Standing attacked only the standing of the organizational and individual plaintiffs, not that of the Commonwealth. See Memorandum in Support of Defendants’ Motion for Summary Judgment on Counts III, IV and V at 3 n.1. That motion was followed by this motion, which attacks the standing of all Plaintiffs as to Count II only.
2 Massachusetts v. Bull HN Info. Sys., 16 F. Supp. 2d 90, 98 (D. Mass. 1998) (Older Worker Benefit Protection Act (“OWBPA”) and Age Discrimination in Employment Act (“ADEA”).

Case 1:03-cv-11206-NMG Document 235 Filed 03/02/07 Page 2 of 19
Defendants also rely on a misreading of the statutory language of Title III. While they assert that Title III’s terms prohibit States from seeking its protections on behalf of their residents, in fact, Title III provides as expansive a remedy to States as any of the many other federal laws under which courts have permitted States to vindicate their residents’ civil rights.
As explained in detail below, when the Commonwealth filed this action jointly with the National Federation for the Blind (“NFB”) and a number of blind individuals in 2003, E*TRADE Bank was an outlier among banks with a significant ATM presence in Massachusetts. While the other major banks in the region had already made, or were poised to make, their ATMs independently useable to blind consumers, E*TRADE Bank was working hard to increase its fleet of inaccessible ATMs and gain market share over the “brick and mortar” banks, while maintaining a policy of charging customers (including blind customers) for the use of other banks’ ATMs (including accessible ATMs) and waiving fees for use of its own ATMs, which blind consumers could not independently use (the “Fee Policy”).3 In light of the inaccessibility of the Bank’s ATM fleet, the Bank’s Fee Policy has a deterrent effect on blind consumers that effectively eliminates E*TRADE Bank as a personal banking option for blind consumers.
The Commonwealth filed this lawsuit in the public interest, in an attempt to force the Bank to offer to blind consumers an opportunity to enjoy the Bank’s services that is equal to that it offers to sighted consumers. Because the Commonwealth has parens patriae standing to bring this action, the Court should deny Defendants’ motion.
3 The Defendants describe the Bank’s Fee Policy in their Memorandum in Support of Defendants’ Motion for Summary Judgment on Count II Due to Lack of Standing (“Defendants’ Memorandum”) at 3.
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I. BACKGROUND A. E*TRADE Bank’s History and Presence in Massachusetts In the Years Leading Up
to This Lawsuit In or about January 2000, E*TRADE Group, Inc., acquired Telebank, then the largest “cyberbank” in the United States.4 In or about March 2000, E*TRADE Group acquired the ATM fleet of Card Capture Services, Inc. (“CCS”), then the largest independent network of ATMs in the United States, with 8,500 ATMs located in 48 states and three countries at hotels, shopping malls, grocery stores, convenience stores, gas stations, entertainment complexes, and other convenient “off premise” (non-bank) locations where consumers may be in need of cash.5 E*TRADE Group’s goal in acquiring the CCS fleet was to “provid[e] branded physical touch-points for services without an investment in traditional ‘brick and mortar,’” and to pass along those savings to consumers.6 On April 4, 2000, E*TRADE Group announced the launch of E*TRADE Bank, “the first all-electronic bank to offer consumers” both electronic banking services and electronic brokerage services through one portal.7 E*TRADE Group boasted that the Bank offers “‘high touch’ and
4 See January 12, 2000 E*TRADE Financial Press Release entitled “E*TRADE and Telebank Close Merger,” Declaration of Bethany H. Brown (“Brown Dec.”), ¶ 3 and Exhibit 1. 5 See March 13, 2000 E*TRADE Financial Press Release entitled “E*TRADE To Acquire Nation’s Largest Independent ATM Network,” Brown Dec., ¶ 4 and Exhibit 2. 6 See May 8, 2000, E*TRADE Financial Press Release entitled “E*TRADE Completes Acquisition of Nation’s Largest Independent ATM Network,” Brown Dec., ¶ 5 and Exhibit 3; July 19, 2000, E*TRADE Financial Press Release entitled “E*TRADE Surpasses $1 Billon In Revenues For First Nine Months of Fiscal 2000, Achieves Break-even Results From Ongoing Operations,” Brown Dec., ¶ 6 and Exhibit 4. 7 See April 4, 2000, E*TRADE Financial Press Release entitled “E*TRADE Launches E*TRADE Bank Creates First All-electronic Banking/brokerage Portal,” Brown Dec., ¶ 7 and Exhibit 5.
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‘high tech’ benefits,” that is, electronic banking combined with an extensive ATM fleet.8 Recognizing that its large “ATM network is one of the most compelling customer benefits that E*TRADE has launched to date,” it pledged to “move aggressively to deploy a national network of branded ATMs that rewards [consumers] with free cash withdrawals and other no-fee transactions.”9
Between E*TRADE Group’s acquisition of the CCS ATMs in the Spring of 2000 and the June 2003 filing of this lawsuit, the Bank’s entire ATM fleet grew from approximately 8,500 to more than 11,000 ATMs. In a website advertisement the Bank posted before the Commonwealth filed its lawsuit, the Bank heralded to consumers that, with more than 11,000 ATMs, E*TRADE Bank offers “free unlimited ATM transactions” at the “nation’s third-largest ATM network.”10
During this same period of time, the Bank also worked hard to increase the size of its Massachusetts ATM fleet, which grew from between 100 and 200 ATMs to approximately 600 ATMs.11 The vast majority of the Bank’s ATMs during this period of time were inaccessible to blind people.12
8 Id. 9 See Brown Dec., ¶ 5 and Exhibit 3. 10 See Brown Dec., ¶ 8 and Exhibit 6. 11 See Declaration of Jenny R. Rossman (“Rossman Dec.”), ¶¶ 4-5. 12 See id.
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B. Efforts by Other Major Banks in Massachusetts To Make Their ATM Fleets Independently Useable to Blind Consumers During the years leading up to this lawsuit, while E*TRADE Bank’s inaccessible ATMs
were proliferating, the major “brick and mortar” banks in Massachusetts had begun, or were soon to begin, offering blind consumers voice-guided ATMs at all of their banking locations.
In February 2001, Fleet Bank agreed to equip approximately 1,400 Fleet ATM locations in the New England region (including Massachusetts) with voice-guided ATMs.13 In June 2003, Fleet entered into a Supplement to that Agreement in which it agreed to make a “talking” ATM available at any remaining banking locations, with limited exceptions.14 After Bank of America acquired Fleet, Bank of America formally agreed to honor the terms of these agreements.15 Today, there are approximately 888 talking Bank of America ATMs in Massachusetts.16
In November 2002, Sovereign Bank agreed to equip all of its ATM locations with a talking ATM.17 Today, there are approximately 408 talking Sovereign Bank ATMs in Massachusetts.18
13 See Declaration of Stanley J. Eichner (“Eichner Dec.”), ¶ 4 and Exhibit A. 14 See id., ¶ 5 and Exhibit B. The exceptions were ATMs that became part of Fleet’s ATM fleet as the result of a “Bulk ATM Acquisition, which remained subject to a specific provision of the original 2001 Agreement. 15 See id., ¶ 6 and Exhibit C. 16 See Commonwealth’s Response to Interrogatory No. 16 of Commonwealth’s Responses to Defendant Cardtronics’s First Set of Interrogatories to Plaintiff Commonwealth of Massachusetts (“Commonwealth’s Response to Interrogatory No. 16”), attached as Exhibit 1 to Defendants’ Submission of Supplemental Evidence in Support of Defendants’ Cross-Motion for Summary Judgment (Docket No. 169). 17 See Eichner Dec., ¶ 7 and Exhibit D.
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Finally, in August 2004, Citizens Bank agreed to equip all of its ATM locations with a talking ATM.19 Today, there are approximately 250 talking Citizens Bank ATMs in Massachusetts.20
In contrast, prior to the filing of this lawsuit in 2003, Defendants agreed to provide access for blind consumers at only 17 ATMs in Massachusetts, out of a fleet of Massachusetts ATMs then numbering approximately 600.21
C. The Bank’s Current Fleet and Discriminatory Fee Policy E*TRADE Bank’s entire fleet currently consists of approximately 15,000 ATMs.22 With approximately 620 ATMs in Massachusetts today,23 the number of ATM locations maintained by the Bank ranks second only to the number of Massachusetts ATM locations maintained by Bank of America, and rivals the number of ATM locations maintained by Sovereign Bank and Citizens Bank together.24 Yet while the three major “brick and mortar” banks in Massachusetts now offer accessible ATM banking services at all or virtually all of their ATM locations, E*TRADE
18 See Commonwealth’s Response to Interrogatory No. 16 (see n. 16 supra). 19 See Eichner Dec., ¶ 8 and Exhibit E. 20 See Commonwealth’s Response to Interrogatory No. 16 (see n. 16 supra). 21 See Third Amended Complaint, ¶ 17; nn.11-12 supra. 22 See Rossman Dec., ¶ 7. 23 See id. 24 It appears that the number of ATM locations of Bank of America, Sovereign Bank, and Citizens Bank with voice-guided ATMs (see Section I(B) supra) can be used is a rough proxy for the number of total ATM locations maintained by each, since, under their various settlement agreements with the complainants in those matters, they were required to equip all (or, in the case of Bank of America, virtually all) bank locations with a “talking” ATM.
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Bank’s fleet remains largely inaccessible.25 Nonetheless, the Bank maintains its policy of
charging all consumers (including consumers who cannot see) to use the accessible ATMs
maintained by other banks. At the same time, it waives fees for consumers who use the Bank’s
own ATMs, which for the most part blind consumers cannot independently use.
As a result, a blind person wishing to become a Bank customer could do so only if that
person were willing to either a) enlist the assistance of a sighted person to use a Bank ATM fee-
free, with the accompanying burdens (most critically, the need to share a confidential personal
identification number (“PIN”) with the sighted assistant), b) use the accessible ATM of another
bank, for a fee, or c) forego any use of the Bank’s extensive network of ATMs. Sighted
customers do not experience these burdens. Nor do blind customers who do business with banks that have accessible ATMs.26
Blind consumers confirm the deterrent effect of the Fee Policy.27
25 See Rossman Dec., ¶ 6. 26 The Bank suggests that the service it offers to blind consumers is not inferior to that it offers to sighted persons for two reasons. First, a blind customer could maintain a minimum account balance of $5,000, since the Bank reimburses fees incurred through use of non-Bank ATMs to customers with that minimum balance. Defendants’ Memorandum at 4. Second, a blind customer could obtain “cash back” from a point-of-sale (“POS”) machine by making a purchase using a Visa Check Card. Id. at 4-5. Even if true, these methods do not cure the discriminatory nature of the Bank’s Fee Policy. Sighted customers can independently use the Bank’s ATMs even without maintaining a $5,000 minimum account balance. And sighted customers are not required to make a purchase in order to obtain fee-free cash from their Bank accounts, can gain access to their accounts from any Bank ATM (not just from those located in stores equipped with POS machines affording cash-back transactions), and do not depend on the vagaries of any individual merchant’s “cash back” policy to gain access to their ATM account. Moreover, most POS machines are not independently useable by people who are blind. Private Plaintiffs’ Combined Memorandum in Opposition to Defendants’ Motions for Summary Judgment on Counts II, III, IV and V Due to Lack of Standing (“Private Plaintiffs’ Opposition”) at n.20. 27 Declaration of Amy Ruell (“Ruell Dec.”), ¶ 24; Private Plaintiffs’ Opposition at n.25.
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II. ARGUMENT A. The Commonwealth Has Parens Patriae Standing To Seek, On Behalf Of
Massachusetts’s Blind Residents, Fulfillment Of The ADA’s Promise Of Equal Opportunity To Enjoy Banking Services. 1. The Broad Enforcement Provisions Of Title III Permit Massachusetts To
Vindicate The Civil Rights Of Its Blind Residents. Defendants make a number of arguments based on supposed limitations on the scope of Title III’s enforcement provisions that they contend bar a State from seeking Title III’s protections on behalf of its residents. Defendants contend that Title III’s enforcement provision is drawn more narrowly than the “broad” enforcement provisions of other federal civil rights laws under which courts have permitted States to maintain actions. They also argue that the Commonwealth may not pursue this action because Title III does not specifically mention States as potential litigants and because it expressly provides enforcement authority only to the United States Attorney General.28 In fact, there are no substantive differences between the broad enforcement provision of Title III and those of other federal statutes under which courts have permitted States to bring suit parens patriae. Title III’s enforcement provision permits suit by “any person who is being subjected to discrimination on the basis of disability in violation of this subchapter.”29 This language is virtually identical to the language of the enforcement provisions of the many civil rights statutes under which courts have permitted States to bring such suits, which provide for suit by “persons” “aggrieved” or “injured” by the conduct prohibited by the statutes’ substantive
28 Defendants’ Memorandum at 15-16. 29 42 U.S.C. § 12188(a)(1).
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provisions. 30 Indeed, at least one district court has specifically found Title III’s enforcement
provision to be sufficiently broad to afford States parens patriae standing.31 Even the Second
Circuit decision Defendants cite for a catalogue of cases approving of statutes with “broad”
enforcement provisions merely cites the lower court’s decision in that case, which in turn
recognized Title III to be a perfect example of a civil rights statute with a “broad” enforcement
provision lending itself to a parens patriae suit.32
Moreover, like Title III, none of the other civil rights statutes under which courts have
allowed States to proceed name States as potential plaintiffs, and many are like Title III in
30 See Alfred L. Snapp & Sons, Inc. v. Puerto Rico [“Snapp”], 458 U.S. 592 (1982) (Puerto Rico permitted to sue under Wagner-Peyser Act, 29 U.S.C. § 49, which is silent as to whom can sue); Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) (Georgia permitted to sue under the Clayton Act, 15 U.S.C. § 16 (providing for suits by “persons” injured or threatened with injury and contemplating civil and criminal actions by the United States)); New York v. County of Delaware, 82 F. Supp. 2d 12 (N.D.N.Y. 2000) (New York permitted to sue under Title II of the ADA, 42 U.S.C. § 12133 (providing for suits by “any person alleging discrimination on the basis of disability in violation of section 12132”) and the Voting Accessibility for the Elderly and Handicapped Act, 42 U.S.C. § 1973ee-4 (providing for suits by a “person who is personally aggrieved by … noncompliance” with polling site access requirements, and by United States Attorney General)); New York v. Peter & John’s Pump House, 914 F. Supp. 809 (N.D.N.Y. 1996) (New York permitted to sue under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3 (providing for suits by “persons aggrieved” by “any act or practice prohibited by Section 2000a-2,” and intervention by United States Attorney General)); Support Ministries v. Village of Waterford, 799 F. Supp. 272 (N.D.N.Y. 1992) (New York permitted to sue under Fair Housing Amendments Act, 42 U.S.C. §3613 (providing for suits by “an aggrieved person” within two years of “alleged discriminatory housing practice,” and suit or intervention by United States Attorney General)).
31 New York v. Mid Hudson Med. Group, 877 F. Supp. 143, 147 (S.D.N.Y. 1995).
32 See Defendants’ Memorandum at 16, citing Connecticut v. Physicians Health Servs. of Conn., 287 F.3d 110, 121 (2nd Cir. 2002); see also Connecticut v. Physicians Health Servs. of Conn. 103 F. Supp. 2d 495, 509 (D. Conn. 2000) (describing Title III’s enforcement provision, which allows for suit by “any person who is being subjected to discrimination on the basis of disability in violation of this subchapter,” as example of broad enforcement provision under which States may sue parens patriae) (emphasis in original).
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specifying that the United States Attorney General may sue under their provisions.33
Defendants’ contentions have no basis and the Court should reject them.34
2. The Commonwealth Has Quasi-Sovereign Interests In Seeking Redress For A Bank Policy That Discriminates Against Blind Massachusetts Residents. 35
In its leading decision on parens patriae standing, the Supreme Court held that a State
has parens patriae standing where it can identify “quasi-sovereign interests” that it seeks to
protect through a lawsuit it brings under federal legislation.36
33 See Mid Hudson Med. Group, 877 F. Supp. at 146 (rejecting argument that because Title III of the ADA and Section 504 of the Rehabilitation Act of 1973 did not specifically provide for enforcement by state attorneys general, New York could not bring suit under those laws); see also cases cited in n.30 supra.
34 Defendants cite Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), a case in which Hawaii sought to sue under the Clayton Act, for the proposition that courts deny parens patriae standing to a state where the statute “does not evince a Congressional intent to allow a state an enforcement role.” Defendants’ Memorandum at 15. Defendants misstate the holding of Standard Oil Co. There, the Court denied standing because Hawaii sought money damages (not injunctive relief) for general harm to its economy, which the Court stated was no more than the harm to individual consumers and could have led to a duplicative recovery against the defendant were individuals to also bring suit. The Court was unwilling to allow the possibility of a duplicative recovery absent a clear expression from Congress that it envisioned that result. Standard Oil Co., 260-65.
35 The Bank’s Fee Policy, which relegates to blind consumers lesser services than those offered to sighted ones, is discriminatory as a matter of law. See Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081-82 (9th Cir. 2004) (movie theater policy of declining to require, at sold-out showings, that a customer vacate a seat designated as companion seating was discriminatory, because it “denies [disabled customers] an opportunity to sit with [a] companion equal to that enjoyed by ambulatory patrons.”); 42 U.S.C. § 12101(a)(5) (citing as purpose for ADA the elimination of the “discriminatory effects of … failure to make modifications to existing … practices … and relegation to lesser services … or other opportunities”). See also 56 Fed. Reg. 35565 (DOJ commentary stating that ADA would prohibit bank from offering accessible ATM services to blind ATM users only at accessible ATM installed in lobby locked at night, where sighted customers had opportunity for around-the-clock access to drive-in ATM).
36 Snapp, 458 U.S. at 592.
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In Snapp, Puerto Rico sued three Virginia agricultural growers under the Wagner-Peyser Act on behalf of approximately 700 Puerto Rican workers the growers had rejected in favor of foreign workers. The Puerto Rican workers included a) workers deterred in the first instance from seeking employment by the growers after it became known that the growers refused to hire Puerto Rican workers, b) workers the growers subjected to discriminatory working conditions, and c) workers the growers terminated based on their national origin.37
In ruling that Puerto Rico had standing to sue on behalf of these workers, the Supreme Court explained that a state’s parens patriae standing is established where it has a “quasi-sovereign interest” in the matter, consisting of either a quasi-sovereign interest in the “health and well-being – both physical and economic – of its residents in general,” or a quasi-sovereign interest in “not being discriminatorily denied its rightful status within the federal system.”38 In Snapp, the Court had little difficulty determining that Puerto Rico’s interest in protecting its workers from discrimination – including workers who were deterred by discriminatory policies and practices from seeking employment in the first instance – amounted to a quasi-sovereign interest in the health and well-being of its residents.39 The Court also found that Puerto Rico had a quasi-sovereign interest in assuring that the protections of the federal system flow to its residents, entitling it to bring
37 Id. at 597-98.
38 Id. at 607. 39 Id. at 609 (“This Court has had too much experience with the political, social, and moral damage of discrimination not to recognize that a State has a substantial interest in assuring its residents that it will act to protect them from these evils.”).
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an enforcement action under the Wagner-Peyser Act – a federal law – in the public
interest.40
Applying the reasoning of Snapp, a number of courts – including a New York court in an
action under Title III of the ADA and a Massachusetts federal court in a case involving another
federal civil right statute -- have upheld the parens patriae standing of States to secure for their
residents, under a variety of federal civil rights laws, an equal opportunity to enjoy the goods and
services of public accommodations, and equal opportunity in employment, housing, and
government services.41 In Mid Hudson Med. Group, for example, New York sued a medical
40 Id. at 609-10 (“[U]nemployment among Puerto Rican residents is surely a legitimate object of the Commonwealth’s concern,” and just as Puerto Rico can address it through legislation of its own, it can also “seek to assure its residents that they will have the full benefit of federal laws designed to address this problem.”).
41 Mid Hudson Med.Group, 877 F. Supp. at 147 (in public accommodations discrimination case brought under Title III of the ADA and Section 504 of the federal Rehabilitation Act of 1973, 42 U.S.C. § 794a, New York had parens patriae standing to sue on behalf of deaf patients who were, and might in the future be, denied interpreter services); Bull HN Info. Sys., 16 F. Supp. 2d at 98 (in employment discrimination case brought under the federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Older Worker Benefit Protection Act (“OWBPA”), 29 U.S.C. § 626(f), Massachusetts had parens patriae standing to sue on behalf of its older work force); Peter & John’s Pump House, 914 F. Supp. at 813 (in public accommodations discrimination case brought under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, New York had parens patriae standing to litigate “generalized discrimination” claim on behalf of past and “potential nightclub patrons”); New York v. 11 Cornwell Co., 695 F.2d 34, 38 (1982) (in fair housing action brought under 42 U.S.C. § 1985(3), New York had parens patriae standing to sue neighbors for their interference with efforts by group home for mentally retarded to purchase house), vacated on other grounds, 718 F.2d 22 (2d Cir. 1983); Puerto Rico Pub. Housing Adm. v. United States Dept. of Housing and Urban Dev., 59 F. Supp. 2d 310 (D.P.R. 1999) (in case brought under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, Puerto Rican agency had parens patriae standing to sue HUD on behalf of its Hispanic residents based on HUD policies and practices that disparately treated and had disparate impact on Puerto Rican low income tenants); Support Ministries, 799 F. Supp. at 276-80 (in fair housing case brought under the Fair Housing Act, 42 U.S.C. § 3601 et seq., and 42 U.S.C. § 1983, New York had parens patriae standing to challenge municipal zoning ordinance and municipality’s denial of special use permit intended to exclude group home for people with AIDS); County of Delaware, 82 F. Supp. 2d at 12 & n.1 (in voting rights case brought under Title II of the ADA, 42 U.S.C. § 12131 et seq., and the Voting Accessibility for the Elderly and Handicapped Act, 42
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practice under Title III based on the practice’s policy of insisting that its deaf patients communicate with the practice’s personnel through the exchange of written notes and through lip-reading, rather than undertake to retain sign language interpreters. New York alleged that the practice discriminated against consumers with hearing disabilities in violation of Title III by “’rigidly adher[ing] to a policy rejecting the provision of sign language interpreters.’” 42 The court ruled that New York could proceed with its lawsuit seeking relief on behalf of all of New York’s present and future deaf residents.43
Under this authority, Massachusetts unquestionably has a quasi-sovereign interest in vindicating the right of approximately 38,000 blind Massachusetts residents44 under Title III of the ADA to an equal opportunity to enjoy E*TRADE Bank’s services. The Commonwealth has a clear health and safety-related quasi-sovereign interest in the ability of its blind residents to live productive, independent, satisfying lives free of discrimination. Indeed, Massachusetts views the right of people with disabilities not to be excluded from the state’s commercial and civic life to be so profoundly important that it has framed that right as an Article of an Amendment to the
U.S.C. § 1973ee et seq., New York had standing to sue county for architectural inaccessibility of county’s polling places). 42 Mid Hudson Med. Group, 877 F. Supp. at 145. 43 Id., 877 F. Supp. at 146-47. 44 See the Central Registry link found on the website for the Massachusetts Commission for the Blind, www.mass.gov/mcb. The Report of the Register 2003 available at that link records 37,919 blind people living in Massachusetts as of 2003. The prevalence of blindness and low vision is expected to increase markedly in the next twenty (20) years as the population ages. See The Eye Diseases Prevalence Research Group, Causes and Prevalence of Visual Impairment Among Adults in the United States, 122 Archives of Ophthalmology 477, 481, 483 (2004).
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state’s Constitution.45 Moreover, in its public accommodations law, Massachusetts bans discriminatory practices by businesses with provisions that are both criminally and civilly enforceable.46 Just as the Commonwealth can avail (and has, in this case, availed) itself of these state laws to protect people with disabilities, so too does it have standing to protect the wellbeing of Massachusetts’s blind residents through resort to Title III’s federal scheme, to ensure that people who are blind have an equal opportunity to enjoy the services the Bank offers in Massachusetts at a large and conveniently located fleet of ATMs; that the Bank’s ATMs are independently useable by blind people to the extent required by ADAAG; and that Defendants supply any auxiliary aids and services necessary in order for blind people to be able to effectively gain access to all of the products and services that the Defendants offer, including the Bank’s ATM services.47 This is particularly true given the unique niche that the Bank created and occupies in the Massachusetts banking marketplace (by virtue of its establishment of an extensive network of ATMs at “off premise” locations and creation of a website designed to provide one “portal” to both personal banking and brokerage services),48 and where the Bank
45 See Mass. Const. amend. CXIV. The Massachusetts General Court established a private right of action for violation of Article 114 in Mass. Gen. Laws ch. 93, § 103. That statute forms the basis for Count VII of the Third Amended Complaint. See also Mid Hudson Med. Group, 877 F. Supp. at 147 (New York’s interest in “the nondiscriminatory treatment of its citizens” was clear from its enactment of state civil rights statutes under which it brought its pendant state claims). 46 See Mass. Gen. Laws ch. 272, §§ 92A, 98. The Plaintiffs include a claim under this statute in Count VI of the Third Amended Complaint. 47 See Snapp, 458 U.S. at 607, 609-10 (“[F]ederal statutes creating benefits or alleviating hardships create interests that a State will obviously wish to have accrue to its residents.”). 48 See Section I(A) supra.
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was alone among banks with a large Massachusetts ATM network in refusing to make its ATM services accessible.49
Equal access to financial services, including personal banking services, is integral to a person’s ability to participate fully in society and live independently.50 In light of the inaccessibility of the Bank’s ATMs, the Bank’s Fee Policy serves to shut the Bank’s “cyber” doors to the tens of thousands of blind people in Massachusetts. Accordingly, the Commonwealth has a quasi-sovereign interest in ensuring that blind people in Massachusetts have an equal opportunity to benefit now and in the future from the Bank’s services.51
3. The Commonwealth’s Parens Patriae Standing Does Not Depend On Any “Individualized Fact-Finding” Or On The Standing Of Any Specific Individuals.
Defendants characterize Plaintiffs’ claim seeking modification of the Bank’s Policy for customers who are blind and cannot use the Bank’s inaccessible ATMs as one seeking “highly individualized fact-finding” by the Court. They cite in support of that contention cases that deal
49 See Section I(B) supra. 50 See 42 U.S.C. §12101(a)(8) (“The Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic selfsufficiency for such individuals”). 51 See Snapp, 458 U.S. at 607 (directing courts to consider direct and indirect effects of discrimination); Bull HN Info. Sys., 16 F. Supp. 2d at 101 (courts must consider “what might arise if the defendant’s conduct is left unchallenged by the state”); 11 Cornwell Co., 695 F.2d at 39-40 (considering the effect of discriminatory practice on “similar people in years to come”); Mid Hudson Med. Group, 877 F. Supp. at 147 (in assessing indirect effects of alleged discrimination against deaf patients in lawsuit against health care provider for failure to supply interpreter services, considering fact that approximately 7% of the New York state population is deaf); Support Ministries, 799 F. Supp. at 277-78 (in fair housing case involving efforts to exclude group home for people with AIDS, considering number of New York residents with AIDS and who are projected to contract AIDS in future).
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not with the merits of reasonable modification claims, but with the standing of specific
individuals under the standing case law applicable to individuals.52
That case law is not applicable to whether a State has parens patriae standing to protect
the civil rights of its residents. On the contrary, courts repeatedly find a state’s parens patriae
standing to be supported where there exist obstacles to the ability of private individuals to
establish individual standing.53
52 Defendants’ Memorandum at 16-17 & n. 8 (citing Dudley v. Hannaford Bros. Co., 333 F3d 299, 305 (1st Cir. 2003) (assessing individual’s standing); Moreno v. G&M Oil Co., 88 F. Supp. 2d 1116, 1117 (C.D. Cal. 2000) (same); Association for Disabled Ams., Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1363-64 (S.D. Fla. 2001) (discussing standing requirements for two individual plaintiffs)). Defendants also cite PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001), where the Court suggested that the needs of a disabled person be evaluated on an individual basis. That case raised the issue of whether allowing a disabled golfer to use a golf cart would fundamentally alter the nature of golf. The Court considered that the purpose of the rule barring use of golf carts was to fatigue players, and that the plaintiff in that case would be fatigued even with use of a golf cart, in light of his specific condition. In contrast to Martin, here, no such individualized inquiry is required in order for the Court to determine the merits of Commonwealth’s “reasonable modification of policy” claim against the Bank, as the Commonwealth explains further below. Finally, Defendants cite McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 69 (1st Cir. 2003), for the proposition that “Title III claims are limited to persons who are the actual victims of discrimination.” Defendants’ Memorandum at 17 n.8. Defendants distort the holding of that case, which was simply that a woman who sued a hospital based on architectural barriers she found when she gave birth at the hospital did not have a ripe claim under Title III where she merely claimed she hoped to become pregnant again.
53 See, e.g., Puerto Rico Public Housing Adm’n, 59 F. Supp. 2d at 14 (fact that public housing resident would have “slim chances .. to find standing” supported finding of parens patriae standing of state agency). See also 11 Cornwell Co., 695 F.2d at 40 (allowing New York to maintain parens patriae action for exclusionary housing practices, given requirement that for individuals to maintain such action they must “allege specific facts demonstrating personal harm and tangible benefit from the court’s intervention”); Pennsylvania v. Porter, 659 F.2d at 315 (in allowing Pennsylvania to go forward with Section 1983 action seeking injunction to stop police abuse, court noted that “individual victims may be unable to show the likelihood of future violations of their rights”). Indeed, the individual standing requirements Defendants purport to recite are far more onerous than those established by courts where, as here, discriminatory conditions deter disabled individuals from patronizing a business. See Dudley, 333 F.3d at 306 (individual had shown “a real and immediate threat of ongoing harm” to establish standing where discriminatory policy “remains firmly in place”); Pickern v. Holiday Quality Foods, Inc., 298 F.3d 1133, 1138 (9th Cir. 2002) (individual who is “currently deterred from patronizing a public
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Nor would any “individualized fact-finding” pose any bar to Massachusetts’s parens patriae standing, contrary to Defendants’ arguments. Plaintiffs have requested a simple policy change by the Bank that would reimburse blind consumers for charges they incur from using the accessible ATMs of other banks, just as the Bank now does for Bank customers with bank account balances of more than $5,000.54 This Court has already held that the “suggested modification … is generally reasonable.”55 The burden now shifts to Defendants to show that the requested change would fundamentally alter its services.56 There is no individual-specific inquiry required by the Court to determine these questions.57
Finally, Defendants seem to suggest that the Commonwealth must identify Massachusetts citizens requiring the relief it seeks in Count II in order to establish its standing.58 That is not the case where a business deters people with disabilities from availing themselves of the business’s product or service, for example, as where a bank institutes a fee policy that chills any interest blind consumers might otherwise have in its services (that is, if they were to be made available on terms equally advantageous to those offered to sighted consumers, and to those blind
accommodation due to a defendant’s failure to comply with the ADA has suffered ‘actual injury.’”). See also Private Plaintiffs’ Opposition, Argument III(A)(2). 54 Statement of Material Facts in Support of Defendants’ Motion For Summary Judgment on Count II Due To Lack of Standing, ¶ 1. 55 Memorandum and Order dated 2/21/06 at 11. 56 Id. at 12. 57 See Bull HN Info. Sys., 16 F. Supp. at 103-04 (rejecting challenge to Massachusetts’s standing to bring OWBPA lawsuit based on contention that merits involved victim-specific analysis; only question was whether terms of ADEA waivers satisfied OWBPA waiver requirements). 58 Defendants’ Memorandum at 17.
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consumers can obtain from banks that do not discriminate).59 Indeed, Defendants do not cite a

single case – and the Commonwealth is not aware of any – requiring a State to name specific

injured individuals in order to support parens patriae standing, and the cases suggest the contrary.60

Conclusion

For these reasons, Massachusetts respectfully asks the Court to deny the Bank’s motion

for summary judgment on Count II as against the Commonwealth.

Respectfully submitted,

COMMONWEALTH OF MASSACHUSETTS, By its Attorneys,

MARTHA COAKLEY, ATTORNEY GENERAL

/s/ Patricia Correa ________________________________ Patricia Correa, BBO No. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919

Dated: March 2, 2007

59 See Snapp, 458 U.S. at 597-98 (Puerto Rico could maintain parens patriae standing to sue on behalf of workers deterred from seeking employment by defendants’ discriminatory policies and practices); County of Delaware, 82 F. Supp. 2d at 12 n.1 (New York had parens patriae to seek preliminary injunction under ADA and Voting Accessibility for the Elderly and Handicapped Act against county that used polling places with architectural barriers in light of the anticipated discriminatory effect on the County’s disabled population).
60 See, e.g., County of Delaware, 82 F. Supp. 2d at 12 & n.1 (New York permitted to sue for architectural barriers at polling places because of anticipated discriminatory effect on voters with disabilities); see also cases cited in n. 40 supra. In any event, there are specific Massachusetts blind residents who are deterred by the Bank’s fee policy from any consideration of using the Bank’s services. See, e.g., Ruell Dec., ¶ 24.
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Case 1:03-cv-11206-NMG Document 235 Filed 03/02/07 Page 19 of 19 CERTIFICATE OF SERVICE
I, Patricia Correa, hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants.
/s/ Patricia Correa ________________________________ Patricia Correa
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 Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 1 of 46

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et al.,
Plaintiffs, v. E*TRADE ACCESS, INC., et al.,
Defendants.

CIVIL ACTION NO. 03-11206-MEL

PRIVATE PLAINTIFFS’ COMBINED MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ON COUNTS II, III, IV AND V DUE TO LACK OF STANDING

Anthony M. Doniger, BBO #129420 Christine M. Netski, BBO #546936 Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030
Dated: March 2, 2007

Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030
Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 (303) 595-9700

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 2 of 46
TABLE OF CONTENTS
PRIVATE PLAINTIFFS’ COMBINED MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ON COUNTS II, III, IV AND V DUE TO LACK OF STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 LEGAL CONTEXT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 PROCEDURAL STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 II. THE ORDER IN WHICH TO CONSIDER PENDING ISSUES AND MOTIONS.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 III. THE NFB HAS STANDING TO SUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. Individual Plaintiffs and other NFB Members Have Standing to Sue in their Own Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1. The Individual Plaintiffs and NFB Members Have Suffered Injuries-in-Fact Sufficient to Establish Standing to Challenge Cardtronics’s Inaccessible ATMs. . . . . . . . . . . . . . . . . . . . . . . . . 15 a. Given the Nature and Intended Use of ATMs, Individual Plaintiffs and NFB Members have Demonstrated Sufficient Certainty of Future Use. . . . . . . . . . . . . . . . . . . . . . . . . . 16 b. Plaintiffs Present Evidence of 18 NFB Members Who Had Standing When the Original Complaint Was Filed and an Additional 13 Members When the Fourth Complaint was Filed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 c. The Individual Plaintiffs’ and NFB Member Declarants’ Dual Status as Potential Patrons and Civil Rights Testers Also Confers Standing. . . . . . . . . . . . . . . . . . . . . . . . . . 19
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2. Several Individual Plaintiffs and NFB Members Have Standing to Sue E*TRADE Bank. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 a. Plaintiffs have Alleged a Cognizable Injury under Count II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 b. Plaintiffs are Not Required to Show that Inaccessible ATMs are the Sole Reason they Are not E*TRADE Bank Customers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 c. Plaintiffs Do Not Need to Show They Were Aware of the Requested Remedial Policy at the Time of Their Injury. 26
B. The Interests the NFB Seeks to Protect Through this Litigation are Germane to its Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
C. Neither the Claim Asserted Nor the Relief Requested Requires the Participation of Individual NFB Members. . . . . . . . . . . . . . . . . . . . . . . . 27 1. Prudential Considerations, If Considered at All, Dictate that the NFB Should have Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 2. Neither the Claim Nor the Relief Requested Will Require Individual Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
IV. The Requested Class of Blind Plaintiffs Would Have Standing to Challenge All of Defendants’ Inaccessible ATMs Nationwide; The Question of the Scope of Available Relief is Otherwise Premature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 A. The Requested Class Will have Standing to Seek a Nationwide Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 B. Should This Court Deny Plaintiffs’ Motion for Class Certification, It would be Premature to Address the Scope of An Eventual Injunction. . . . . . . . 34
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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TABLE OF AUTHORITIES
FEDERAL CASES
Access 123, Inc. v. Markey's Lobster Pool, Inc 2001 WL 920051 (D.N.H. Aug. 14, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 33-34
Arnold v. United Parcel Serv., Inc., 136 F.3d 854 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Ass’n for Disabled Americas, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353 (S.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Ass'n for Disabled Ams., Inc. v. Claypool Holdings, LLC, No. IP00-0344-C-T/G, 2001 WL 1112109 (S.D. Ind. Aug. 6, 2001) . . . . . . . . . . . . . . . . . . . . . 32
Ass’n for Disabled Ams., Inc. v. Key Largo Beach, LLC, 407 F.Supp.2d 1321 (S.D. Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Bacon v. City of Richmond, 386 F. Supp. 2d 700 (E.D. Va. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Camel Hair and Cashmere Institute of America, Inc. v. Associated Dry Good Corp., 799 F.2d 6 (1st Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 39
City of Hope National Medical Ctr. v. HealthPlus, Inc., 156 F.3d 223 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Clark v. Burger King Corp., 255 F. Supp. 2d 334 (D.N.J. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Clark v. McDonald's Corp., 213 F.R.D. 198 (D.N.J. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 18, 20, 29, 32-33
Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership, No. 96-WY-2490-AJ, 1997 WL 33471623 (D. Colo. 1997) . . . . . . . . . . . . . . . . . . . . . . 17, 20-21
Conservation Law Foundation of New England, Inc. v. Reilly, 950 F.2d 38 (1st Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 36
Disability Rights Council of Greater Wash. v. Wash. Metropolitan Area Transit Authority,
iv

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239 F.R.D. 9 (D.D.C. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Disabled Americas for Equal Access, Inc. v. Ferries del Caribe, 405 F.3d 60 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 22, 26
Disabled Patriots of America, Inc. v. Lane Toledo, Inc., 325 F. Supp. 2d 837 (N.D. Ohio 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Dudley v. Hannaford Brothers Co., 333 F.3d 299 (1st Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16-17, 35
ETRADE Access, Inc. v. National Federal of the Blind, Inc., No. 03-743-A (E.D. Va. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Evers v. Dwyer, 358 U.S. 202 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Guckenberger v. Boston University, 957 F. Supp. 306 (D. Mass. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30
Hamilton v. Miller, 477 F.2d 908 (10th Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 19, 27
In re Relafen Antitrust Litigation, 221 F.R.D. 260 (D. Mass. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
International Union, United Automobile, Aerospace and Agriculture Implement Workers of America v. Brock, 477 U.S. 274 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Lewis v. Casey, 518 U.S. 343 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 17, 26
Mathews v. Diaz, 426 U.S. 67 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
v

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Matta v. Lam, No. Civ.A. 503CV087C, 2003 WL 21448942 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Mid-South Chapter of Paralyzed Veterans of America v. New Memphis Public Building Authority of Memphis & Shelby County, No. 04-2353 (2005) . . . . . . . . . . . . . . 28
Molski v. Arby's Huntington Beach, 359 F. Supp. 2d 938 (C.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Molski v. Price, 224 F.R.D. 479 (C.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Moreno v. G&M Oil Co., 88 F. Supp. 2d 1116 (C.D. Cal. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Mullaney v. Anderson, 342 U.S. 415 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
N.H. Motor Transport v. Rowe, 448 F.3d 66 (1st Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Organization for the Advancement of Minorities with Disabilities v. Brick Oven Restaurant, 406 F. Supp. 2d 1120 (S.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065 (D. Haw. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Payton v. County of Kane, 308 F.3d 673 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 33
Pharm. Care Management Association v. Rowe, 429 F.3d 294 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 29, 30
Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
vi

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 7 of 46
Playboy Enterprises, Inc. v. Public Serv. Commission of P.R., 906 F.2d 25 (1st Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Small v. Gen'l Nutrition Cos., 388 F. Supp. 2d 83 (E.D.N.Y. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Smith v. Pac. Properties & Development Corp., 358 F.3d 1097 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Tcherepnin v. Knight, 389 U.S. 332 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tyler v. Kansas Lottery, 14 F. Supp. 2d 1220 (D. Kan. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 27-29
Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22
Wein v. America Huts, Inc., 313 F. Supp. 2d 1356 (S.D. Fla. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32
Wilson v. Pier I, 413 F. Supp. 2d 1130 (E.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 32 35
FEDERAL STATUTES
Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. pt 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
28 C.F.R. pt 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 24, 31
28 C.F.R. § 36.301(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
vii

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 8 of 46 28 C.F.R. § 36.302(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 28 C.F.R. § 36.406(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. § 12111, et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. § 12188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 42 U.S.C. § 2000a-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 42 U.S.C. § 3604(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 9 of 46

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et al.,
Plaintiffs, v. E*TRADE ACCESS, INC., et al.,
Defendants.

CIVIL ACTION NO. 03-11206-MEL

PRIVATE PLAINTIFFS’ COMBINED MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ON COUNTS II, III, IV AND V DUE TO LACK OF STANDING
Defendant Cardtronics operates over 25,000 ATMs -- what it proclaims to be “the largest
network of ATMs in the United States”1 -- but makes at most ten percent of those machines
accessible to blind people.2 Cardtronics systematically denies blind people its most important

service: convenient access to cash. The Individual Plaintiffs in this lawsuit -- blind ATM users -have all been injured by and continue to be injured by this systematic lack of access and thus have standing to challenge it. The National Federation of the Blind (“NFB”) has associational standing

because these inaccessible ATMs have injured many of its members, because ensuring independent access to public accommodations such as ATMs is central to the NFB’s mission, and because the systematic inaccessibility can be remedied by an injunction that does not require

individual NFB members to participate. Moreover, as the declarations of NFB members make

1

Private Plaintiffs’ Response to Statement Of Material Facts in Support of Defendants’

Motions for Summary Judgment Due to Lack of Standing (“PRSMF”) ¶ 4.

2

Id. ¶¶ 6-7.

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 10 of 46
clear, they have been injured -- and thus the NFB has had standing -- since well before the first complaint was filed in 2003.3
For these reasons, explained in greater detail below, the Private Plaintiffs respectfully request that this Court deny Defendants’ Motion for Summary Judgment on Counts III, IV and V Due to Lack of Standing (“Count III-IV-V Motion”) and Defendants’ Motion for Summary Judgment on Count II Due to Lack of Standing (“Count II Motion”) (collectively, “Defendants’ Standing Motions”).
Defendants’ Standing Motions do not challenge the NFB’s Article III standing to pursue this litigation. Defendants concede that “a subset of the NFB’s overall membership will meet all of [the] factual prerequisites to have individual standing in this lawsuit,”4 the key element in the NFB’s associational standing. Rather, Defendants challenge the NFB’s standing “to pursue a nationwide injunction.”5 The breadth of the remedy to which a plaintiff is entitled, however, is not a question of Article III standing.6 Because there is no question -- even under Defendants’ theories -- that the NFB has Article III standing to bring this case, the case will go forward with

3

See, e.g., PRSMF ¶¶ 32-34, 89, 91, 106-07, 130, 139, 152-53, 165, 175, 177, 206, 215,

228, 236, 288, 302, 312, 321, 336, 349 (setting forth the testimony of individuals who were NFB

members and were injured by the inaccessibility of Defendants’ ATMs before June, 2003).

4

Count III-IV-V Motion at 16.

5

Id. at 20; see also id. at 1, 8. Although several of Defendants’ intermediate argument

headings suggest they are arguing that the NFB has no associational standing whatsoever, even

in that context Defendants concede that some NFB members have standing. Id. at 16.

Ultimately, in their conclusion, the holding they request of this Court is limited to lack of

standing to pursue a nationwide injunction. Id. at 20. In addition, Defendants do not move on

all counts of Plaintiffs’ complaint. See infra at 7.

6

See Wilson v. Pier I, 413 F. Supp 2d 1130, 1135 (E.D. Cal. 2006); see also infra Section

IV(B).

2

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 11 of 46
the NFB as an associational plaintiff, and the Court necessarily will have to address the pending motion for certification of a nationwide class.
FACTS7 Automatic teller machines permit bank customers to have access to cash withdrawals and other banking services at locations remote from the bank’s physical offices and at times that those offices are closed. Cardtronics’s goal, as explained by its Executive Vice President, is to give financial institutions opportunities to “provide enhanced convenience to their customers.”8 Thus, Washington Mutual explained a recent co-branding deal with Cardtronics by saying, “providing our customers with easy access to their money, any time, anywhere is critical.”9 Defendant E*TRADE Bank touts its services with the claim: “No ATM Fees - any machine, any bank, anywhere.”10 Defendants sell convenience: the ability to get money quickly and simply, virtually anywhere one shops, dines, wanders, or travels, without the need for prior planning. Because the vast majority of Defendants’ ATMs are not independently useable by blind people, Defendants deny blind people their most important product: convenient and ubiquitous access to cash. When ATMs provide only visual instructions, blind users must ask for assistance to use the machines. A sighted person must explain the layout of the machine and read aloud

7

Private Plaintiffs also incorporate by reference the introduction and background sections

of the Commonwealth’s Opposition to Defendants’ Motion For Summary Judgment on Count II

Due to Lack of Standing, filed simultaneously herewith. See id. at 1-7.

8

PRSMF ¶ 2.

9

Id.

10

Id. ¶ 3.

3

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 12 of 46
information as it appears on the screen.11 It is often necessary for a blind ATM user to give his sighted helper highly confidential information, such as the “personal identification number” or PIN that provides security to the account holder.12 In situations where a blind ATM user is traveling or shopping alone, he may have to rely on strangers to assist and, again, may have to share confidential information.13 That can make blind ATM users feel uncomfortable, vulnerable, and dependent -- not to mention putting them at risk for fraud or identity theft.14 Because of this, many blind people bypass inaccessible ATMs and travel extra distances to use inconvenient machines, wait for regular banking hours, or simply go without a needed cash withdrawal rather than undertake a transaction that exposes them to financial risk.15 Even when a blind ATM-user seeks sighted assistance, the process can be frustrating, inefficient, and time-consuming.16
Bank customers can generally use their own bank’s ATMs without incurring a fee, while they are often charged a fee when using an ATM that is not operated by their bank. This was the case with E*TRADE Bank when this litigation commenced: it permitted customers to conduct fee-free transactions at E*TRADE ATMs, while customers were generally charged a fee when they used non-E*TRADE machines. Because most E*TRADE ATMs were inaccessible, this penalized blind E*TRADE customers -- and deterred other blind people from becoming
11 See, e.g., PRSMF ¶¶ 16, 27, 48-49, 51, 54-61, 81, 222, 236, 309, 358. 12 See, e.g., PRSMF ¶¶ 110, 145, 173, 298, 319, 356. 13 See, e.g., PRSMF ¶¶ 16, 81, 145, 173, 223, 247, 271, 273, 309, 318, 356. 14 See, e.g., PRSMF ¶¶ 24, 64, 88, 128, 145, 234, 247, 271, 309. 15 See, e.g., PRSMF ¶¶ 14, 16, 23, 24, 28, 97, 105, 109, 125, 135, 144, 160, 170, 181, 185, 202, 210, 213, 223, 233, 234, 245, 258, 269, 278, 314, 327, 341, 344, 357. 16 See, e.g., PRSMF ¶¶ 48-49, 51, 54-61, 240, 345-48.
4

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 13 of 46
E*TRADE customers -- because they were charged a fee for conducting transactions at the only ATMs they could use independently.
This policy has since changed. E*TRADE Bank now permits customers who meet certain financial criteria to make fee-free transactions at any ATM, whether or not it’s an E*TRADE ATM.17 Customers who do not meet these criteria, however, must pay whatever fees are imposed for transactions at non-E*TRADE ATMs. This puts blind E*TRADE customers who do not meet these new criteria in the same boat as they were under the old policy: they are required to pay a fee to conduct transactions at accessible ATMs.
In their Count II Motion, Defendants appear to argue that the Visa Check Card is a complete alternative to accessible ATMs because it permits blind customers to get “cash back” when making a purchase by using a store’s point-of-sale machine.18 In other words, E*TRADE Bank argues that the Visa Check Card makes ATMs (and thus, presumably, Cardtronics) superfluous for sighted and blind alike. The Visa Check Card, in fact, does not come close to substituting for accessible ATMs: (1) unlike an ATM, it requires the user to make a purchase in order to receive cash back;19 (2) many point-of-sale machines are inaccessible to blind people;20 (3) only about 25% of the stores that accept the Visa Check Card permit such “cash back” transactions;21 and (4) the Visa Check Card is useless when accepting stores are closed.

17 Statement of Material Facts in Support of Defendants’ Motion for Summary Judgment on Count II Due to Lack of Standing (“Defs.’ Count II SMF”) ¶ 1.

18

Count II Motion at 5.

19 Defs.’ Count II SMF ¶ 3.

20 See, e.g., PRSMF ¶¶ 26, 27, 67, 86, 95, 104, 319.

21

PRSMF ¶ 1.

5

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 14 of 46

Plaintiffs Adrienne Asch, Bryan Bashin, Jennifer Bose, Norma Crosby, Bob Crowley, Dwight Sayer, Terri Uttermohlen, and Raymond Wayne (the “Individual Plaintiffs”) are all legally blind.22 The Individual Plaintiffs reside in various states, lead active and full lives, and use ATMs to access cash.23 They all have been injured (and continue to be injured) by Cardtronics’s inaccessible ATMs.24 Finally, E*TRADE Bank’s violations have injured Plaintiffs Asch, Bashin, Crosby, Crowley and Sayer and deter them from becoming E*TRADE Bank customers or, in the case of Bryan Bashin, injure him by requiring him to to maintain a $5,000 balance or pay fees to use accessible machines.25
The NFB, a nationwide organization of blind people, has affiliates in all 50 states, Washington, D.C. and Puerto Rico. The vast majority of the NFB’s approximately 50,000 members are blind people. The purpose of the NFB is to promote the general welfare of the blind by, among other things, assisting the blind in their efforts to integrate themselves into society on terms of equality and independence.26
LEGAL CONTEXT The Americans with Disabilities Act (“ADA”) was enacted in 1990, recognizing that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”27 The First Circuit has held that “[t]he ADA is a ‘broad remedial statute.’ It is a ‘familiar canon of

22 PRSMF ¶¶ 11, 20, 41, 62, 75, 82, 92, 101.

23 See generally PRSMF ¶¶ 11-107.

24 PRSMF ¶¶ 17-18, 31-34, 43-61, 69-73, 79-81, 87, 89-91, 97, 99, 100, 106.

25 PRSMF ¶¶ 17, 19, 39, 40, 65, 78, 85.

26

PRSMF ¶ 10.

27 42 U.S.C. § 12101(a)(8).

6

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 15 of 46

statutory construction that remedial legislation,’ such as the ADA, ‘should be construed broadly to effectuate its purposes.’”28
Plaintiffs bring suit under Title III of the ADA (“Title III”), which prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .”29
Defendants have challenged Plaintiffs’ standing as to Counts II, III, IV and V of the Third Amended Complaint. In Plaintiffs’ proposed Fourth Amended and Supplemental Class Action Complaint (“Fourth Complaint”),30 Plaintiffs have withdrawn Count IV. The other three counts at issue in Defendants’ Standing Motions are summarized briefly below. Defendants have not challenged Plaintiffs’ standing to bring Count I, which alleges a claim under 42 U.S.C. § 12182(a) -- Title III’s general anti-discrimination provision -- or Counts VI or VII, brought under Massachusetts law.
Through Counts III and V31 of the Third Amended Complaint, Plaintiffs seek an injunction requiring Defendants to make their ATMs accessible to and independently useable by blind people. Count III seeks compliance with 42 U.S.C. § 12182(b)(2)(A)(iii), which requires places of public accommodation to provide “auxiliary aids and services” to ensure that blind people such as the Individual Plaintiffs are not “excluded, denied services, segregated or otherwise treated differently than other individuals.” Count V seeks compliance with 42 U.S.C. § 12183(a), which

28 Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998) (quoting
Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); other citations omitted), cited in Dudley v. Hannaford Bros. Co. 333 F.3d 299, 307 (1st Cir. 2003).

29

42 U.S.C. § 12182(a).

30 Mem. of Private Pls. in Supp. of Their Revised and Substituted Mot. for Leave to File a Fourth Am. and Supplemental Class Action Compl. (“Motion to Amend”), Paper No. 220, Ex. 1.

31 This claim is renumbered Count IV in the Fourth Complaint.

7

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 16 of 46

requires newly constructed and altered facilities to comply with the Department of Justice Standards for Accessible Design (“Standards”).32 Section 4.34.5 of the Standards requires that ATMs be “accessible to and independently useable by persons with vision impairments.”
Count II -- against Defendant E*TRADE Bank only -- is based on 42 U.S.C. § 12182(b)(2)(A)(ii), which requires “reasonable modifications” in bank policies when necessary to make the bank’s services available to people with disabilities. Because many of E*TRADE Bank’s ATMs -- which customers can use fee-free -- are not independently useable by blind people, the reasonable modification Plaintiffs have requested is a policy that allows blind E*TRADE Bank customers to use accessible non-E*TRADE Bank ATMs fee-free.
PROCEDURAL STATUS33 This case was filed in June, 2003, against E*TRADE Bank, Inc. (“E*TRADE Bank”) and E*TRADE Access, Inc. (“Access”). On February 22, 2005, following the acquisition of Access by Cardtronics, LP, this Court allowed Plaintiffs’ motion to amend their complaint to add Cardtronics, LP, and Cardtronics, Inc. (collectively “Cardtronics”) as Defendants. By order dated February 21, 2006, this Court denied both parties’ cross motions for summary judgment.34 Throughout the litigation -- from its inception up to the filing of the Defendants’ Standing Motions -- both parties had treated this case as nationwide in scope. Indeed, as Plaintiffs have previously set forth in detail, Defendants worked hard at the outset of this case to ensure that any injunction would reach its entire fleet of ATMs, and represented to another federal district court

32 28 C.F.R. pt. 36, app. A; see 28 C.F.R. § 36.406(a) (requiring compliance with the Standards).

33 Private Plaintiffs recited the procedural history of this litigation in some detail in their Motion to Amend, pages three through seven of which are incorporated herein by reference.

34

Paper No. 172.

8

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 17 of 46

that any other approach “could have . . . a devastating financial effect” on its business.35 Many of Defendants’ pleadings have described this case as extending to all of their ATMs and Defendants moved this Court to force Plaintiffs to add as parties all of the more than 11,000 merchants Defendants claimed owned title to ATMs in its nationwide network.36
Approximately six weeks after this Court denied Defendants’ motion for summary judgment, Defendants filed the first of their Standing Motions, conceding the NFB’s standing37 but, for the first time -- and contrary to their own previous efforts -- seeking to limit the NFB’s ability to obtain an injunction that addresses all of Defendants’ ATMs nationwide. The second of Defendants’ Standing Motions came approximately two weeks later.
In response, Plaintiffs took action to ensure that the procedural status of the case fully reflected the way it had been litigated by both parties for three years. The NFB had known full well -- given the breadth of its membership and the large number of Defendants’ ATMs in use around the country -- that many of its members had been injured by the inaccessibility of those ATMs. Since both parties had -- prior to the filing of the Standing Motions -- treated the case as nationwide in scope, there had been no reason to obtain sworn testimony as to individual member experiences beyond those of the original individual Plaintiffs. Following Defendants’ sudden reversal of position on the scope of the litigation, the NFB -- through counsel -- took the opportunity at its 2006 convention to inquire into its members’ experiences with Defendants’

35 Pl. E*TRADE Access, Inc.’s Opp’n to Def.’s Mot. to Dismiss at 5, E*TRADE Access, Inc. v. Nat’l Fed. of the Blind, Inc., No. 03-743-A (E.D. Va. 2003) (Exhibit 3 to Motion to Amend). See also generally Motion to Amend at 3-6.

36 Mem. in Support of Defs.’ Rule 12(b)(7) Mot. to Join Necessary Parties, Paper No. 44 at 3, 10-13; see also Cmplt. for Declaratory J. ¶ 12, E*TRADE Access, Inc. v. Nat’l Fed. of the Blind, Inc., No. 03-743-A (E.D. Va. 2003) (Exhibit 2 to Motion to Amend) (E*TRADE’s preemptive suit in the Eastern District of Virginia concerned its “nationwide network”).

37

See supra at 2.

9

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 18 of 46
ATMs. This effort yielded six individuals who were interested in becoming plaintiffs in the litigation, and 23 additional NFB members (“NFB Member Declarants”) who provided declarations describing the discrimination they had encountered.38 With this new information -and information produced by Defendants showing the location and extent of violations among its ATMs -- Plaintiffs moved to amend their complaint and for certification of a nationwide class. Those motions -- which would restore the case to the procedural posture espoused by both parties in two courts for three years -- are currently pending before this Court.
ARGUMENT I. STANDARD OF REVIEW
Summary judgment can be granted only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”39 As the moving parties, Defendants have the burden of showing that no genuine issues of material fact exist; “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”40
The First Circuit has held that, in addressing a motion for summary judgment based on lack of standing to sue under Title III of the ADA, “[g]iven the remedial purpose underlying the ADA, courts should resolve doubts about such questions in favor of disabled individuals.”41

38 See generally Private Pls.’ Mot. for Certification of Class and Subclass (“Motion for Class Certification”), Paper No. 222, Exs. A-I & R-GG; PRSMF Exs. H-M.

39

Fed. R. Civ. P. 56(c).

40 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

41 Dudley, 333 F.3d at 307.

10

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II. THE ORDER IN WHICH TO CONSIDER PENDING ISSUES AND MOTIONS. Plaintiffs respectfully submit that it is proper for the Court to consider the pending issues
and motions in this order: 1. Does Private Plaintiffs’ Motion to Amend have merit? 2. Do the Individual Plaintiffs and the NFB have standing to bring ADA claims
against Defendants? If the Court grants the Motion to Amend, this question must be addressed based on the parties to and allegations in the Fourth Complaint.
3. Does Private Plaintiffs’ Motion for Class Certification have merit? 4. Following development of evidence concerning Defendants’ ADA violations or, at the earliest, following resolution of the Motion for Class Certification, what is the proper scope of relief? Private Plaintiffs have previously explained that it is proper to address an attempted challenge to standing by amending and/or supplementing their complaint.42 For this reason, the Motion to Amend should be considered first. It is appropriate for this Court to consider next the question whether the NFB and Individual Plaintiffs have Article III standing to bring a claim against Defendants under the ADA, and to do so before considering Plaintiffs’ Motion for Class Certification. The question of Plaintiffs’ standing to obtain a nationwide injunction, however, should be addressed after this Court has decided Plaintiffs’ Motion for Class Certification.
42 See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 833 (1989) (describing the decision in Mullaney v. Anderson, 342 U.S. 415 (1952)); Mathews v. Diaz, 426 U.S. 67, 75 (1976); see generally Motion to Amend at 10-16 and cases cited therein.
11

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The Supreme Court has held that where “class certification issues are . . . ‘logically antecedent’” to standing concerns, class certification should be treated first.43 That is, where the question is Article III standing to bring the lawsuit in the first place, that question should be considered first; where the standing question relates to the standing of the class, certification must be addressed first.
Another court in this District has provided a good example of how this works. In the Relafen Antitrust case, representative plaintiffs with claims against the defendant arising under the laws of two states were attempting to certify a class of parties with claims arising under the laws of 16 other states.44 The defendant argued that the representative plaintiffs did not have standing to bring claims of class members arising in other states. The court disagreed, noting that the defendant
did not challenge the representatives’ standing to assert personal claims under the laws of states in which they resided or purchased medication. . . . Rather, [the defendant] challenged only their standing to “represent a class . . . in the other 16 . . . jurisdictions.” Accordingly, the Court applies the Ortiz exception to defer consideration of [the defendant’s] standing challenge and to address the remaining issues of certification first.45 A plaintiff’s standing to bring the claims he personally asserts -- in Relafen, each plaintiff’s personal claim under his state’s law; here, each Plaintiff’s individual ADA claim -- must be resolved before addressing class certification. However, the breadth of the claims that may be asserted by the class -- in Relafen, claims under the laws of 16 other states; here, claims addressing Defendants’ ATMs nationwide -- must be addressed after resolving class certification. This approach “rest[s] on the long-standing rule that, once a class is properly certified, statutory

43 Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999).

44 In re Relafen Antitrust Litig., 221 F.R.D. 260, 269-70 (D. Mass. 2004).

45

Id. at 269-70.

12

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and Article III standing requirements must be assessed with reference to the class as a whole, not simply with reference to the individual named plaintiffs.”46
Once the Private Plaintiffs establish -- as they do below -- that both the NFB and the Individual Plaintiffs have Article III standing to sue Defendants, the question of standing to obtain a nationwide injunction should be postponed until after consideration of class certification. Plaintiffs further demonstrate below that, should the class be certified as requested, it will have standing to seek a nationwide injunction.47 III. THE NFB HAS STANDING TO SUE.
Under the Supreme Court’s long-standing test in Hunt v. Washington State Apple Advertising Commission, an association has standing to sue on behalf of its members if “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”48 The NFB easily meets each requirement. First, as established by declarations -- and conceded by Defendants49 -NFB members have standing to sue. Second, the interests the NFB seeks to protect here are the rights of blind people to independent use of -- and therefore full and equal enjoyment of -Defendants’ ATMs and banking services. These interests are central to the NFB’s purpose.

46 Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir. 2002); see also Armstrong v. Davis, 275 F.3d 849, 871 (9th Cir. 2001) (“when a class is properly certified, the injury asserted by the named plaintiffs at the standing stage of our inquiry is asserted on behalf of all members of the class”); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 (D.N.J. 2003) (quoting Ortiz); Wilson, 413 F. Supp 2d at 1135 (in non-class context, holding that Article III standing is a separate question from scope of remedies).

47

See infra at 3-4.

48 Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).

49

See supra at 2.

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Finally, the NFB seeks an injunction requiring Cardtronics to make its ATMs accessible to blind
people and requiring E*TRADE Bank to make its fee-free privileges available to blind people on
a nondiscriminatory basis. Because either injunction will be uniform company-wide, it will not
require the participation of individual NFB members.
The Supreme Court has stated that
the doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others. “The only practical judicial policy when people pool their capital, their interests, or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all.”50
The First Circuit has called this a “strong endorsement of the associational standing doctrine.”51
In this case, the NFB is the vehicle for vindicating the interests of blind people throughout the
country in enjoying the convenience of Defendants’ any time, anywhere ATM service.52
A. Individual Plaintiffs and other NFB Members Have Standing to Sue in their Own Right.
To establish standing, an individual must establish (1) that he suffered an injury in fact
(2) that was caused by the defendant’s conduct and (3) that will be redressed by a favorable
50 Int’l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 290 (1986) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 187 (1951)). 51 Camel Hair and Cashmere Inst. of Am., Inc. v. Associated Dry Good Corp., 799 F.2d 6, 11 (1st Cir. 1986). 52 The NFB asserts only associational standing. Associational standing -- also called “representational standing” -- is distinct from “organizational standing.” Under the doctrine of associational standing, an entity such as the NFB can base its standing on the harm to -- and thus standing of -- its members. Under the doctrine of organizational standing, the entity would base its standing on an allegation that the entity itself was harmed. Because the NFB asserts standing only under the former -- associational standing -- theory, Defendants’ argument that the NFB lacks standing to sue in its own right (Count III-IV-V Standing Motion at 1, 5-7) is not relevant.
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decision.53 In their Standing Motions, Defendants appear to challenge only the “injury in fact” prong, but not causation or redressability. And, as noted above, Defendants’ Count III-IV-V Motion appears to concede that at least some NFB members have standing.54
The First Circuit has established a this standard for the first prong of the Lujan test in the context of Title III of the ADA:
“[A] disabled individual who is currently deterred from patronizing a public accommodation due to a defendant’s failure to comply with the ADA” and “who is threatened with harm in the future because of existing or imminently threatened noncompliance with the ADA” suffers actual or imminent harm sufficient to confer standing.55 Each of the Individual Plaintiffs and many other NFB members meet this standard.
1. The Individual Plaintiffs and NFB Members Have Suffered Injuriesin-Fact Sufficient to Establish Standing to Challenge Cardtronics’s Inaccessible ATMs.
The Individual Plaintiffs and a number of NFB members (the “NFB Member Declarants”) have standing to challenge Cardtronics’s inaccessible ATMs. They have demonstrated that they have attempted to patronize Defendants’ ATMs and have been unable to do so because the machines were not accessible to and independently useable by them.56 Plaintiffs and NFB Member Declarants have also testified that they would like to use and would be likely to use those
53 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). 54 See Count III-IV-V Motion at 16 (“only a subset of the NFB’s overall membership will meet all of these factual prerequisites to have individual standing in this lawsuit.”). 55 Disabled Ams. for Equal Access, Inc. v. Ferries del Caribe, 405 F.3d 60, 64 (1st Cir. 2005) (quoting Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002)). 56 PRSMF ¶¶ 17, 32, 33, 43 -61, 69-73, 79-81, 89-91, 96, 98, 106, 112-115, 119-120, 129, 137, 140, 148, 149, 154, 164, 174, 175, 186, 188, 190, 192, 194, 203, 214, 217, 224, 227, 236, 248, 250, 252, 259 261, 263, 272-74, 279, 280, 287-93, 300, 301, 310, 321, 330, 332, 334, 345, 348, 349, 350, 352, 359, 360, 361, 362.
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ATMs in the future but cannot because they are inaccessible.57 This satisfies the First Circuit test for Title III standing.
a. Given the Nature and Intended Use of ATMs, Individual Plaintiffs and NFB Members have Demonstrated Sufficient Certainty of Future Use.
Defendants assert that “Plaintiffs must show that they have an actual intention of visiting each ATM at issue,” and that, for example, Ms. Asch’s statement that she cannot predict when she will have occasion to use an ATM is insufficiently definite to establish standing.58 While the question of how many ATMs an eventual injunction should cover will be addressed below, it is clear that Individual Plaintiffs and NFB Member Declarants -- including Ms. Asch -- have shown sufficient certainty of future use of Defendants’ ATMs to establish Article III standing to pursue this litigation. A number of Individual Plaintiffs and NFB Member Declarants have testified to specific ATMs that they have attempted to use and/or been deterred from using and have testified further that they would use those specific ATMs -- and others -- should they be made independently accessible to and useable by blind people.59
Under the law of this Circuit, each of these individuals has standing because he or she is “currently deterred from patronizing” Defendants’ ATMs and is “threatened with harm in the future because of existing . . . . noncompliance with the ADA.”60 The First Circuit has made clear that the Individual Plaintiffs and NFB Member Declarants do not have to “subject [themselves] to
57 PRSMF ¶¶ 18, 33-35, 71, 72, 79-81, 84, 89-91, 96-100, 106-07, 112-116, 121, 130, 138, 139, 141, 150, 156, 165, 166, 176, 187, 189, 193, 195, 205, 206, 215, 216, 228, 238-40, 249, 253, 262, 264, 274, 275, 281, 294, 304, 311, 312, 322, 331, 333, 335, 336, 351-52, 359-62. 58 Count III-IV-V Motion at 9. 59 See supra notes 56 & 57. 60 Disabled Ams., 405 F.3d at 64.
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repeated instances of discrimination in order to invoke the remedial framework of Title III of the ADA.”61 Indeed, “[l]imiting Title III relief to instances in which a future violation appears certain to occur would create a standard far more demanding than that contemplated by the congressional objectives that influenced the ADA.”62
An ATM is not the type of public accommodation for which patrons generally schedule their use far in advance. As noted above, Defendants describe their own service as providing access to cash “any time anywhere.”63 Under these circumstances, Plaintiffs simply need to demonstrate an intent to patronize Defendants’ ATMs when they become accessible, and do not need to state a date certain on which that will occur.64
Defendants assert that Plaintiffs must show certain “factual indicia” -- above and beyond the basic requirements of Lujan -- to establish standing.65 While Plaintiffs disagree that this is required, the testimony of many Individual Plaintiffs and NFB Member Declarants provides

61 Dudley, 333 F.3d at 305.

62

Id. at 307.

63

See supra at 3.

64 See Colorado Cross Disability Coalition v. Hermanson Family Ltd. P’ship, No. 96-WY2490-AJ, 1997 WL 33471623, at *4 (D. Colo. 1997) (denying summary judgment as to standing to challenge the accessibility of a retail store under Title III, stating “[t]here simply is no requirement in the ADA that a person desiring entrance into a place of public accommodation have a specific desire to make a purchase at that particular business . . .”); see also Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1079 (D. Haw. 2000) (holding that plaintiff had standing to challenge barriers at a fast food restaurant under Title III in part because “[v]isiting a fast food restaurant, as opposed to a hotel or professional office, is not the sort of event that requires advance planning or the need for a reservation. . . . Fast food patrons visit such restaurants at the spur of the moment. Once a person determines that he or she likes a fast food restaurant, that person’s return is on impulse.”); Clark v. McDonald’s, 213 F.R.D. at 228-29 (holding that plaintiff had standing to challenge barriers at fast food restaurants where he expressed an intent to return when the barriers are removed).

65 Count III-IV-V Motion at 10.

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evidence of such indicia, including proximity of the individuals’ homes to the businesses they seek to patronize, past patronage and plans to return, and frequency of travel to the places where the business are located.66
b. Plaintiffs Present Evidence of 18 NFB Members Who Had Standing When the Original Complaint Was Filed and an Additional 13 Members When the Fourth Complaint was Filed.
Plaintiffs have presented evidence of 18 NFB members who attempted unsuccessfully to use Defendants’ ATMs before the present suit was filed in June, 2003.67 This satisfies the standard enunciated by Defendants.68 In addition, Plaintiffs have moved this Court for leave to file an amended and supplemental complaint.69 Even assuming arguendo that Plaintiffs were not able adequately to support standing under the original complaint, Plaintiffs cure this with their supplemental complaint70 and evidence of an additional 13 NFB Members who were injured prior to the filing of that Complaint.71
66 See, e.g., PRSMF ¶¶ 17, 32, 34, 68-73, 79-81, 89-91, 96-99, 106-07, 112-115, 130, 138, 139, 141, 147-56, 166, 176, 177, 187, 189, 191, 193, 195, 206, 215, 226, 228, 238-40, 249, 253, 262-64, 275, 281, 287-92, 302, 304, 312, 321, 336, 351, 359-62. 67 PRSMF ¶¶ 32-34, 89, 91, 106-07, 130, 139, 152-53, 165, 175, 177, 206, 215, 228, 236, 288, 302, 312, 321, 336, 349. 68 See Count III-IV-V Motion at 8-9. 69 See generally Motion to Amend. 70 See, e.g., Clark v. McDonald’s, 213 F.R.D. at 227 (holding that the plaintiff could have “obtain[ed] leave to serve and file a supplemental complaint that cured defective allegations as to standing by pleading facts occurring subsequent to Plaintiffs' original filing”). See also Motion to Amend at 10-16. 71 PRSMF ¶¶ 17, 43-61, 70, 71, 79-81, 96, 99, 111, 119-20, 186-96, 248, 250-52, 259, 263, 272, 279, 359-69.
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Defendants also argue that the NFB does not have associational standing because it does not have information on all of its members.72 This is not required to support associational standing. The Hunt test “requir[es] an organization suing as representative to include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.”73 “The Supreme Court has never required that every member of an association have standing before it can sue on behalf of its members. ‘The association must allege that its members, or any one of them,’” has standing.74 Indeed, the Fourth Circuit recently sustained associational standing where only one member of the association had standing.75 Here, Private Plaintiffs have identified more than 30 NFB members with standing, easily satisfying this standard.76 Indeed, Defendants concede that “a subset of the NFB’s overall membership will meet all of these factual prerequisites to have individual standing in this lawsuit.”77
c. The Individual Plaintiffs’ and NFB Member Declarants’ Dual Status as Potential Patrons and Civil Rights Testers Also Confers Standing.
The Supreme Court has long recognized that “testers” -- those who put themselves in a position to experience discrimination in order to test and enforce the law -- have standing to
72 See Count III-IV-V Motion at 15-16. 73 United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555 (1996) (emphasis added). 74 Playboy Enters., Inc. v. Pub. Serv. Comm’n of P.R.,906 F.2d 25, 34 (1st Cir. 1990) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)) (emphasis in Playboy Enters.). 75 Retail Indus. Leaders Ass’n. v. Fielder, --- F.3d ---, Nos. 06-1840, 06-1901, 2007 WL 102157, at *3-5 (4th Cir. Jan. 17, 2007). 76 PRSMF ¶¶ 12, 21, 42, 63, 76, 83, 94, 102, 108, 117, 123, 132, 143, 158, 168, 179, 199, 208, 219, 230, 242, 255, 266, 277, 283, 296, 306, 316, 325, 339, 354 (establishing NFB membership of Individual Plaintiffs and NFB Member Declarants). 77 Count III-IV-V Motion at 16.
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challenge that discrimination in court. In the Havens Realty case, the Court held that an
African-American tester had standing under the Fair Housing Act78 when he inquired concerning
the availability of rental housing with no intent to rent but rather to test for discrimination.79 A
number of courts have recognized the standing of individuals who test for disability
discrimination under the ADA, in particular under circumstances -- such as the present case -- in
which the tester is also a potential patron.80 For example, in a case in which the plaintiff had not
attempted to patronize the defendant stores prior to the events giving rise to the litigation and
admittedly went to the stores to test access, the court upheld standing, explaining that the
[p]laintiff ha[d] suffered, and will suffer in the future if the discrimination on the basis of disability is not redressed, an injury-in-fact that is not hypothetical or speculative. Plaintiff, although arguably a tester in October of 1996, will still confront the architectural barriers that preclude him from gaining access to the public accommodations at issue. . . .The presence of the stairs demonstrates that the buildings are not readily accessible to those in wheelchairs, a group that includes plaintiff all of the time in all circumstances. The Court finds that the legislative purposes underlying the enactment of the ADA will be fulfilled if the plaintiff is permitted to pursue this cause of action.81

78

42 U.S.C. § 3604(d).

79 Havens Realty Corp. v. Coleman, 455 U.S. 363, 374 (1982); see also Evers v. Dwyer, 358 U.S. 202, 204 (1958) (holding that African-American plaintiff who rode segregated bus for the purpose of instituting litigation had standing); Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904 (2d Cir. 1993) (holding that testers who read newspapers to check for discriminatory advertising had standing); Hamilton v. Miller, 477 F.2d 908, 909 n.1 (10th Cir. 1973) (“It would be difficult indeed to prove discrimination in housing without this means of gathering evidence.”).

80 See, e.g., Clark v. McDonald’s, 213 F.R.D. at 228 (upholding standing under Title III of plaintiff who had “dual motivation of availing himself of goods and services and verifying ADA compliance.” (Emphasis in original)); see also infra note 82

81 Colorado Cross Disability Coalition, 1997 WL 33471623, at *6. See also Tandy v. City of Wichita, 380 F.3d 1277, 1286-87 (10th Cir. 2004) (recognizing tester standing under Title II of the ADA); Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1102-04 (9th Cir. 2004) (noting testers’ “long and important role in fair housing enforcement” and holding tester had standing under the provisions of the Fair Housing Act requiring accessibility for individuals with
(continued...)

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The plaintiff’s motivation for attempting to patronize an inaccessible public accommodation is irrelevant when he has otherwise satisfied the Supreme Court’s three-part test for standing.82
In the present case, many of the Private Plaintiffs and NFB Member Declarants played a
similar dual role. They are regular patrons of ATMs and of the public accommodations in which Defendants’ ATMs are found, and they also tested the accessibility of Defendants’ ATMs.83 They
have testified that they would like to be able to use these ATMs and, like the stores at issue in
Colorado Cross Disability Coalition, Defendants’ ATMs are not readily accessible to blind
people, a group that includes the Private Plaintiffs and NFB Member Declarants “all of the time in
all circumstances.” Similarly, “the legislative purposes underlying the enactment of the ADA will be fulfilled if . . . [Plaintiffs are] permitted to pursue this cause of action.”84
2. Several Individual Plaintiffs and NFB Members Have Standing to Sue E*TRADE Bank.
Plaintiffs Asch, Bashin, Crosby, Crowley, and Sayer -- as well as a number of NFB
Member Declarants -- have standing to sue E*TRADE Bank. Each establishes that he or she has
been injured by E*TRADE bank, and is currently being injured by that Defendant, either by being
81(...continued) disabilities). 82 Molski v. Arby’s Huntington Beach, 359 F. Supp. 2d 938, 947-48 (C.D. Cal. 2005) (holding that the reasons for the visit to the defendant’s public accommodation were irrelevant if plaintiff otherwise satisfied requirements for standing); Molski v. Price, 224 F.R.D. 479, 484 (C.D. Cal. 2004) (holding that motivation for patronage was irrelevant; upholding standing under Title III of plaintiffs whose expressed an intent to return “to check on the [defendant’s] ADA compliance, and to use the restroom if it was accessible.”). 83 PRSMF ¶¶ 13, 17, 38, 43-61, 66, 69, 71, 72, 79 -81, 89-91, 96-99, 103, 106, 108, 111, 112, 113, 118, 124, 129, 130, 133, 138, 139, 141, 144, 152, 153, 159, 165, 169, 175-77,180, 187, 189, 191, 193, 195, 200, 204-06, 209, 215, 220, 224-28, 231, 238, 243, 248-52, 256, 257, 259, 262-64, 267, 273-75, 280, 288-92, 297, 302, 307, 311, 312, 317, 321, 326, 330, 332, 334, 336, 340, 349, 350, 355, 359-69. 84 See Colorado Cross Disability Coalition, 1997 WL 33471623, at *6.
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deterred from becoming an E*TRADE Bank customer or, in the case of Bryan Bashin, by having to maintain a balance of at least $5,000 or pay fees to use accessible ATMs.85 This satisfies the First Circuit’s standard.86
a. Plaintiffs have Alleged a Cognizable Injury under Count II. Defendants assert that Plaintiffs lack standing because the requested modification is not necessary.87 This is both incorrect and, because it goes to the merits, premature. “The standing inquiry does not focus on the merits of the dispute. It focuses only on ‘whether the litigant is entitled to have the court decide the merits of the dispute.’”88 Here, Defendants concede that their “necessity” argument is an “affirmative defense.”89 It is premature to decide that affirmative defense; rather, it is sufficient for Plaintiffs to demonstrate that they have suffered an injury to their interest in accessible ATM and banking services; this they have done. Nevertheless, it is clear that the requested modification is necessary. Many E*TRADE ATMs are inaccessible to blind people. It is thus necessary for blind E*TRADE Bank customers to use non-E*TRADE Bank ATMs if they are to have access to their cash equal to that available to sighted E*TRADE Bank customers. Under the current policy, blind E*TRADE Bank

85

See supra note 25.

86 Disabled Ams., 405 F.3d at 64.

87

Count II Motion at 8.

88 City of Hope Nat’l Med. Ctr. v. HealthPlus, Inc., 156 F.3d 223, 228 (1st Cir. 1998) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)); see also Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 17 (D.D.C. 2006) (Title III case holding “courts have rejected attempts . . . to require plaintiffs to show that their claims are legally meritorious in order to demonstrate that they have standing.”).

89

Count II Motion at 4.

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customers who do not meet certain financial conditions90 -- unlike similarly-situated sighted E*TRADE Bank customers -- are forced to incur fees if they want to have independent access to their cash. This surcharge on accessibility is illegal.91
Defendants assert that the Supreme Court held in PGA Tour, Inc. v. Martin that modifications are not necessary where they are “merely seeking a convenience or improvement.”92 The Court said no such thing. Rather, it stated that modifications may not be available to individuals “with less serious afflictions” that make the absence of the modification “uncomfortable or difficult, but not beyond their capacity.”93 For individuals who are legally blind -- hardly a “less serious affliction” -- using an inaccessible ATM is not merely “uncomfortable or difficult,” it is physically impossible -- that is, “beyond their capacity” -without assistance, and often dangerously insecure with assistance. In any event, Department of Justice (“DOJ”) regulations make clear that reasonable modifications may be required to achieve an equality of convenience.94
Defendants assert that the Visa Check Card -- which permits cardholders to get cash back on purchases at participating stores -- can substitute for accessible ATMs or the requested fee-free
90 Defs.’ Count II SMF ¶ 1 & Ex. 1. Even those who do meet the financial criteria and therefore get fee-free transactions at any ATM, are essentially incurring opportunity costs for that privilege, including tying up $5,000 in an E*TRADE Bank account, tying up $50,000 in an E*TRADE Securities commodities trading account, or making more than 30 trades a year in a trading account, each of which costs $6.99 to $9.99. See PRSMF ¶ 5. 91 See 28 C.F.R. § 36.301(c) (illegal to impose surcharge on reasonable modifications, auxiliary aids or alternatives to barrier removal). 92 Count II Standing Motion at 9. 93 PGA Tour, Inc. v. Martin, 532 U.S. 661, 682 (2001). 94 28 C.F.R. § 36.302(d) (explaining that store checkout aisle policies may need to be modified “to ensure that an equivalent level of convenient service is provided to individuals with disabilities as is provided to others”).
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use of non-E*TRADE Bank ATMs, making the latter unnecessary. This is not so for several reasons. By definition, the Visa Check Card requires a purchase;95 when a person simply wants cash, he must buy something, essentially imposing a fee that is likely to be even higher than the ATM fee. It requires the customer to have access to a participating store that permits cash back transactions -- only about 25% of the total locations96 -- and the store to be open. Finally, it requires an accessible point of sale machine, or this system simply replicates the problems encountered with ATMs. Many point of sale machines are in fact inaccessible.97 Defendants state: “The store’s sales clerk necessarily will be present to lend any assistance if a blind customer needs help.”98 Putting aside the conclusory nature of this assertion -- Defendants provide no support for their confidence in the sales help of the various participating locations -- a system that relies on sales clerk assistance is not “independently useable by persons with vision impairments.”99
For these reasons, the Visa Check Card is not “particularly useful for blind customers.”100 Ultimately, if the Visa Check Card could substitute for access to E*TRADE’s ATMs, it is curious that E*TRADE Bank has not eliminated the latter machines for its sighted customers as well, so that they, too, can enjoy the particular utility of the check card.

95 Defs.’ Count II SMF ¶ 3.

96 PRSMF ¶ 1. Commentary to the DOJ regulations makes clear that accommodation is required where an accessible ATM is closed during hours that an inaccessible ATM is available. Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. pt. 36, app B (2005) at 700.

97

See supra note 20.

98 Defs.’ Count II SMF ¶ 4.

99 See 28 C.F.R. pt 36, app A, § 4.34.5.

100 Count II Motion at 5.

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Finally, the requested modification will not provide blind patrons with a “better deal” than non-disabled E*TRADE Bank customers obtain, as Defendants argue.101 Rather, it will finally put them on equal footing with sighted customers: both groups will have fee-free independent access to cash, without the requirement of sharing private financial information with others, finding an open and participating Visa check card location, or making a purchase from which to get cash back. While it is true that achieving this equal footing requires modifying policies for blind people in a way that they are not modified for sighted people, the Supreme Court has recognized that this is entirely appropriate. In response to the argument that “reasonable accommodations” under Title I of the ADA102 -- which applies to employment -- did not require “preferences,” the Court explained:
While linguistically logical, this argument fails to recognize what the Act specifies, namely, that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal. The Act requires preferences in the form of “reasonable accommodations” that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy.103
b. Plaintiffs are Not Required to Show that Inaccessible ATMs are the Sole Reason they Are not E*TRADE Bank Customers.
Defendants assert that Plaintiffs must show that they are not E*TRADE Bank customers “solely because Defendants’ ATMs are inaccessible” and cite page 64 of the First Circuit’s decision in Disabled Americans for Equal Access, Inc. v. Ferries del Caribe.104 The First Circuit says no such thing, either on that page or elsewhere. In fact, on that very page, the Court held that deterrence is sufficient to confer standing and that the plaintiff had standing based on his
101 Count II Motion at 13-14. 102 42 U.S.C. § 12111 et seq. 103 US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (emphasis in original). 104 Count II Motion at 6 (bold and italics in original).
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allegation that “barriers to accessibility ‘have effectively denied and/or diminished Plaintiff’s ability to visit and/or use the property . . . .’”105 The testimony cited above establishes that E*TRADE Bank’s inaccessible ATMs and refusal to make reasonable modifications injure and deter these individuals and effectively diminish their ability to use E*TRADE Bank’s services.
c. Plaintiffs Do Not Need to Show They Were Aware of the Requested Remedial Policy at the Time of Their Injury.
Defendants also assert without support that Plaintiffs must show that they knew of and/or were injured by the lack of the specific policy they seek to remedy the inaccessibility of E*TRADE Bank’s ATMs.106 This is not so. Under the Supreme Court’s test for standing,107 it is sufficient that Plaintiffs demonstrate
1. that they suffered and will continue to suffer injuries in fact -- inability to use E*TRADE’s Bank’s ATMs and deterrence from becoming an E*TRADE Bank customer;
2. that their injuries were caused by E*TRADE Bank -- a fact Defendants do not challenge; and
3. that their injuries will be redressed by a favorable decision -- ideally, by an injunction requiring all of Defendants’ ATMs to be accessible; lacking that (or pending its implementation) by an injunction requiring E*TRADE Bank to extend its fee-free service to all ATMs for its blind customers, thereby permitting those customers the fee-free, independent access to cash that sighted customers now enjoy. Nothing in this well-established test requires Plaintiffs to have been aware of all of the precise forms of relief available to redress their injuries at the time of those injuries and Defendants offer no cases to support their position.
105 Disabled Ams., 405 F.3d at 64. 106 Count II Motion at 8, 10. 107 See Lujan, 504 U.S. at 560.
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B. The Interests the NFB Seeks to Protect Through this Litigation are Germane to its Purpose.
The second prong of the Supreme Court’s test for associational standing is that “the interests [the organization] seeks to protect are germane to the organization’s purpose.”108 Defendants do not appear to challenge this prong. It is, in any event, clear that by seeking to secure independent access to ATMs, the NFB is protecting an interest germane to its purpose, which includes, among many other things, “assisting the blind in their efforts to integrate themselves into society on terms of independence and equality.”109
C. Neither the Claim Asserted Nor the Relief Requested Requires the Participation of Individual NFB Members.
The third prong of the Hunt test is that “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”110 The Supreme Court has held that this prong is prudential in nature, that is, it is not required to establish standing under Article III.111 As the Supreme Court has also explained, “Hunt held that ‘individual participation’ is not normally necessary when an association seeks prospective or injunctive relief for its members.”112 In the present case, prudential considerations mitigate strongly in favor of associational standing, and the type of relief requested -- a uniform injunction requiring Defendants to make their ATMs accessible to blind people or (at the very least and in the meantime) requiring E*TRADE Bank to
108 Hunt, 432 U.S. at 343. 109 PRSMF ¶ 10. 110 Hunt, 432 U.S. at 343. 111 United Food & Commercial Workers, 517 U.S. at 557 (“the third prong of the associational standing test is best seen as focusing on these matters of administrative convenience and efficiency, not on elements of a case or controversy within the meaning of the Constitution.”); see also Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 314 (1st Cir. 2005). 112 United Food & Commercial Workers Union, 517 U.S. at 546.
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make uniform reasonable modifications to policies -- will not require individual participation by NFB members. A number of courts have held that organizations have associational standing to seek injunctive relief remedying inaccessible facilities and policies under Title III of the ADA.113
1. Prudential Considerations, If Considered at All, Dictate that the NFB Should have Standing.
Because the third prong is prudential rather than constitutional, several courts have recognized associational standing under Title III of the ADA without evaluating this prong.114 Plaintiffs urge that it is similarly unnecessary to evaluate this prong in the present case.
Should the Court consider this third prong, it is clear that recognizing the NFB’s associational standing serves the prudential goals of “administrative convenience and efficiency.”115 In addition to the considerations discussed in Section III(C)(2) below, it will permit the Court -- in one proceeding -- to evaluate Defendants’ ATMs and order a uniform rather than piecemeal solution. The alternative is for individual blind people to bring individual actions around the country challenging individual ATMs, a result Defendants themselves have argued against.116
113 Guckenberger v. Boston Univ., 957 F.Supp. 306, 321 (D. Mass. 1997); see also Org. for the Advancement of Minorities with Disabilities v. Brick Oven Rest., 406 F. Supp. 2d 1120, 1127-28 (S.D. Cal. 2005); Mid-South Chapter of Paralyzed Veterans of Am. v. New Memphis Pub. Bldg. Auth. of Memphis & Shelby County, No. 04-2353 Ml/V, 2005 WL 948370, at *7-8 (W.D.Tenn. Mar. 1, 2005); Bacon v. City of Richmond, 386 F. Supp. 2d 700, 705 (E.D. Va. 2005); Disabled Patriots of Am., Inc. v. Lane Toledo, Inc., 325 F. Supp. 2d 837, 840-41 (N.D. Ohio 2004); Wein v. Am. Huts, Inc., 313 F. Supp. 2d 1356, 1359-60 (S.D. Fla. 2004); Matta v. Lam, No. Civ.A. 503CV087C, 2003 WL 21448942, at *2 (N.D.Tex. June 18, 2003). 114 See, e.g., Mid-South Chapter of Paralyzed Veterans, 2005 WL 948370, at *7 n.14 (W.D.Tenn. Mar. 1, 2005); Matta, 2003 WL 21448942, at * 2-3. 115 United Food & Commercial Workers Union, 517 U.S. at 557 . 116 See supra notes 33-36.
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2. Neither the Claim Nor the Relief Requested Will Require Individual Participation.
The NFB seeks only injunctive relief, making individual participation unnecessary.117 The First Circuit has also directed that the court consider whether adjudication of the merits will require a “fact-intensive-individual inquiry.”118 No such inquiry will be required here.
As explained above, Plaintiffs allege that Defendants’ ATMs are inaccessible to blind people and request an injunction requiring them to be made accessible. This will require evidence of the inaccessibility of Defendants’ ATMs -- largely already provided by Defendants119 -- as well as expert testimony and limited -- essentially generic -- individual evidence concerning how blind people use ATMs.120 Because the NFB requests a uniform remedy rather than one tailored to each member’s needs, the case will not require any sort of individualized inquiry into the circumstances of individual members. Another court in this District recognized associational standing of a group of disabled law students challenging the accommodations policies at Boston University under Title III. Although student accommodations are often individual in nature, the court held that “the primary forms of relief sought -- injunctive and declaratory relief against
117 United Food & Commercial Workers, 517 U.S. at 546 (stating that “Hunt held that ‘individual participation’ is not normally necessary when an association seeks prospective or injunctive relief for its members . . .”). 118 N.H. Motor Transp. v. Rowe, 448 F.3d 66, 72 (1st Cir. 2006). 119 See PRSMF ¶¶ 6, 7. 120 See Pharm. Care Mgmt., 429 F.3d at 314 (associational standing appropriate where “limited” proof presented by individual members); Camel Hair, 799 F.2d at 12 (no individual participation necessary where “[t]he nub of the plaintiff’s claim . . . depends on the plaintiff’s expert evidence, not on evidence that differs from member to member.”). See also Clark v. McDonald’s, 213 F.R.D. at 214 (holding that although fact-intensive inquiry necessary to assess ADA violations at multiple fast-food restaurants, the necessary evidence “could be established by the testimony of the Defendants’ employees, or even third parties,” including “non-member witnesses well-versed in [the] standards.” (Emphasis in original).).
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BU’s implementation of its new accommodations policy -- do not require the individual participation of [the association’s] members.”121
Defendants assert that the present case will require a “‘fact-intensive individual inquiry’ concerning thousands of [NFB] members” as to whether each one can or cannot use an ATM.122 This statement is based on a misunderstanding either of the relief that the NFB requests, of the Supreme Court’s requirements for associational standing, or both. Again, the NFB does not seek remedies tailored to each individual member, so such testimony will not be necessary to fashion relief. And, as demonstrated above, the NFB is not required to show that all of its members are unable to use ATMs, that is, that all of them have standing. It is sufficient that at least one member -- the NFB has provided evidence of at least 30 -- is unable to see an ATM screen and thus has standing to challenge Defendants’ inaccessible ATMs.123 It is irrelevant how many other NFB members are unable to use an ATM, or what each member’s level of vision is.
This case is distinguishable from the First Circuit case on which Defendants rely most heavily. In Pharmaceutical Care, the organizational plaintiff was challenging -- under the Takings Clause -- a statute requiring certain pharmaceutical sales middlemen to disclose conflicts of interest.124 The First Circuit concluded that the “individual takings claims could in principle be significantly strengthened or weakened by the particularized circumstances of each individual
121 Guckenberger, 957 F.Supp. at 321. 122 Count III-IV-V Motion at 18. 123 PRSMF ¶¶ 11, 20, 41, 62, 64, 75, 82, 92, 101, 108, 117, 123, 132, 143, 158, 168, 179, 199, 208, 219, 230, 242, 255, 266, 277, 283, 296, 306, 316, 325, 339, 354. 124 Pharm. Care Mgmt., 429 F.3d at 299.
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member.”125 In other words, the question of liability -- whether the Takings Clause prevented enforcement of the disclosure law -- was specific to each member. Here, in contrast, the question of liability is uniform: if the ATMs at issue are not independently useable by blind people, they are in violation of the ADA.126 This conclusion does not require evaluation of each member’s ability to use a given machine.
Defendant also relies on Concorde Gaming, in which a court in the Southern District of Florida asserted that “‘any finding of ADA violations requires proof as to each individual claimant’”127 and thus held that there can be no associational standing under Title III of the ADA. This is simply wrong -- and thus far from the majority view. As noted above, many courts have held organizational plaintiffs to have associational standing under Title III.128 Indeed, another judge in the same district considered and rejected the reasoning of Concorde Gaming after analyzing the law and reviewing the large number of associational standing cases in his district, concluding that recognizing associational standing in such cases was both correct and the far more widely adopted approach.129 He also demonstrated that the quote on which Defendants rely originated in a damages case -- in which individualized proof generally is required -- and was adopted without discussion in Concorde Gaming.130 Concorde Gaming is what the late federal
125 Id. at 314. 126 See 28 C.F.R. pt. 36, app A, § 4.34.5. 127 Count III-IV-V Motion at 1, 18 (quoting Ass’n for Disabled Ams., Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1364 (S.D. Fla. 2001)). 128 See supra note 113. 129 Ass’n for Disabled Ams., Inc. v. Key Largo Beach, LLC, 407 F. Supp. 2d 1321, 1330-32 (S.D. Fla. 2005) (noting approximately 95 ADA cases in which associational standing has been either explicitly or implicitly recognized). 130 See Ass’n for Disabled Ams., 407 F. Supp. 2d at 1335-36.
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judge Roszel Thomsen characterized as a “mule” case -- one without pride of ancestry or hope of progeny.
Defendants also point to several Title III cases in which associational standing was denied; each is distinguishable. The court in Access 123 held that the organization had satisfied the Article III requirements for standing but refused to grant associational standing because the organization’s claim -- concerning Title III violations at a single restaurant -- was completely duplicative of the claim of the single member-plaintiff.131 In contrast, Plaintiffs here challenge the accessibility of multiple ATMs and have presented evidence of multiple plaintiffs and other NFB members who have been injured by the inaccessibility of various different ATMs. The NFB’s claims in no way duplicate those of any one member or individual plaintiff.132 The organizational plaintiff in Claypool Holdings could not point to any members with standing,133 again, in contrast to the at least 30 members to which the NFB can point here.
Finally, Defendants cite Clark v. McDonald’s for the proposition that “the purpose of the ADA would be ‘frustrated’” if the NFB had standing here.134 Flying as this does in the face of 30 years of Supreme Court associational standing cases, not to mention the First Circuit’s acknowledgment of the Supreme Court’s “strong endorsement” of such standing, it is not surprising to learn that Defendants’ assertion mischaracterizes the case. In fact, the discussion from which Defendants extracted the word “frustrated” concerned organizational standing, that is,
131 Access 123, Inc. v. Markey’s Lobster Pool, Inc., No. CIV 00-382-JD, 2001 WL 920051, at * 4 (D.N.H. Aug. 14, 2001), cited in Count III-IV-V Motion at 16. 132 See also Wein, 313 F. Supp. 2d at 1360 (distinguishing Access 123 on these same grounds and holding organization had associational standing). 133 Ass’n for Disabled Ams., Inc. v. Claypool Holdings, LLC, No. IP00-0344-C-T/G, 2001 WL 1112109, at *19-20 (S.D. Ind. Aug. 6, 2001), cited in Count III-IV-V Motion at 10. 134 III-IV-V Standing Motion at 19 (citing Clark v. McDonald’s, 213 F.R.D. at 210 n.9).
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injury to the organization itself, rather than standing to sue in a representative capacity.135 It is thus not relevant here.136 IV. The Requested Class of Blind Plaintiffs Would Have Standing to Challenge All of
Defendants’ Inaccessible ATMs Nationwide; The Question of the Scope of Available Relief is Otherwise Premature. Defendants argue that the NFB does not have standing to seek a nationwide injunction addressing all of Defendants’ inaccessible ATMs. Defendants filed this motion before Plaintiffs moved to certify a nationwide class. As explained above, it is appropriate for this Court to resolve the pending Motion for Class Certification before addressing this question.137 Should this Court certify the requested class, that class would have standing to challenge all of Defendants’ inaccessible ATMs nationwide. In the absence of such a class, it is premature -- in advance of review of all of the evidence of noncompliance -- for this Court to circumscribe the possible relief available to Plaintiffs. A. The Requested Class Will have Standing to Seek a Nationwide Injunction. “Once a class is properly certified, statutory and Article III standing requirements must be assessed with reference to the class as a whole, not simply with reference to the individual named plaintiffs.”138 Plaintiffs have requested certification of a class defined as: All blind people who, during a time period to be determined by this Court, were denied, or are currently being denied, on the basis of disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any ATM owned, operated, controlled, and/or leased by Defendant Cardtronics anywhere in the United States.
135 Clark v. McDonald’s, 213 F.R.D. at 207 (heading of section from which Defendants’ quote is drawn is “Access Today Lacks Organizational Standing”). 136 See supra note 54. 137 See supra Section II. 138 Payton, 308 F.3d at 680; see also Armstrong, 275 F.3d at 870-71.
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This class, because it is defined to include individuals who have been injured by Defendants’ inaccessible ATMs “anywhere in the United States,” will have standing to seek a nationwide injunction to remedy those ATMs. “The scope of injunctive relief [will be] dictated by the extent of the violation established.”139 If -- as Defendants’ own documents have already established140 -the Court concludes that the violations are essentially systemic, system-wide relief will be appropriate.
This is a complete answer to Defendants’ challenge to the scope of an injunction in this case and completely distinguishes the cases on which they rely, none of which involved certified classes.141 Indeed, in two of the Title III cases in which courts have refused to permit a single plaintiff to challenge violations in multiple locations, the court has specifically noted that the matter was not a class action.142
B. Should This Court Deny Plaintiffs’ Motion for Class Certification, It would be Premature to Address the Scope of An Eventual Injunction.
If this Court denies Plaintiffs’ motion for class certification, the NFB may still be entitled to a nationwide injunction. Because that determination will depend on the nature and extent of evidence presented at trial, it is premature to reject such a possibility categorically.
139 Armstrong, 275 F.3d at 870 (quoting Lewis v. Casey, 518 U.S. 343, 359 (1996)). 140 See PRSMF ¶¶ 6, 7. 141 Conservation Law Found. of New England, Inc. v. Reilly, 950 F.2d 38 (1st Cir. 1991) (not a class action); Small v. Gen’l Nutrition Cos., 388 F. Supp. 2d 83, 100 (E.D.N.Y. 2005) (standing based only on individual plaintiffs; class certification decision deferred). 142 Moreno v. G&M Oil Co., 88 F. Supp. 2d 1116, 1117 (C.D. Cal. 2000) (“This is not a class action.”); Tyler v. Kansas Lottery, 14 F. Supp. 2d 1220, 1224 (D. Kan. 1998) (“Plaintiff is not bringing this case as a class action”).
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As the First Circuit has noted, the injunctive provisions of Title III are based on Title II of the Civil Rights Act of 1964.143 “In enacting the latter statute, Congress evinced its understanding ‘that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance.’”144
In light of this broad mandate, once a plaintiff has standing under Title III, the proper question is how to remedy the barriers he identifies. One recent Title III case addressed a defense argument that a plaintiff lacked standing to obtain an injunction as to barriers that he had identified but that had not injured him. The court correctly recognized that this was not a question of standing, but rather of the proper scope of relief and concluded that “any reasonable construction of the ADA must recognize that Congress intended to permit suits for injunction to reach any existing barriers, and as long as Article III standing exists, nothing prevents it from doing so.”145 As that court explained, “it is difficult to believe that a statute with the broad remedial purpose of ending discrimination against the disabled, should be construed as permitting discrimination to persist after its existence has been discovered.”146 Similarly, it is difficult to believe in this case that the ADA can be construed to permit the long list of noncompliant ATMs - already identified by Defendants147 -- to persist.
143 42 U.S.C. § 12188 (incorporating by reference 42 U.S.C. § 2000a-3(a)); see Dudley, 333 F.3d at 307. 144 Dudley, 333 F.3d at 307 (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 401 (1968)). 145 Wilson v. Pier 1, 413 F. Supp. 2d 1130, 1135 (E.D. Cal. 2006). 146 Id. at 1133. 147 PRSMF ¶¶ 6, 7.
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Defendants rely heavily on the First Circuit case of Conservation Law Foundation of New England v. Reilly, which held that two New England-based environmental organizations did not have standing to seek an injunction relating to 840 hazardous waste sites around the country.148 However, there is no evidence from that opinion that the plaintiffs alleged -- or that there existed - any pattern or practice or indeed any physical or remedial element common to all of the sites. In contrast, the ATMs at issue here are similar types of equipment that demonstrate a clear pattern and practice of noncompliance. In Clark v. Burger King Corp., the court addressed whether a single plaintiff had standing to challenge barriers in restaurants he had not visited.149 The court concluded that, absent an allegation “commonality of construction” or “a corporate policy violative of the ADA,” the individual did not have such standing.150
If, on the other hand, there existed an allegation that all Burger King restaurants are similar, in that they possess commonality of architecture, or that they implement a corporate policy violative of the ADA, Clark may have standing as to restaurants he has yet to visit.151 Despite Defendants’ repeated requests to stay and limit discovery, the evidence in this case to date already provides ample support for a commonality among Defendants’ ATMs and a corporate policy -- refusal to make those ATMs independently useable by blind people -- violative of the ADA. Rather than curtailing the possibility of an injunction that achieves the broad remedial purpose of the ADA with respect to all of Defendants’ ATMs -- as Defendants request at this juncture -- Plaintiffs respectfully request that Defendants’ motion for summary judgment with
148 950 F.2d 38 (1st Cir. 1991), cited in Count III-IV-V Motion at 11, 19. 149 255 F. Supp. 2d 334 (D.N.J. 2003) 150 Id. at 343. 151 Id. at 343 n.11.
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respect to a nationwide injunction be denied to permit Plaintiffs to develop further the evidence

supporting such an injunction.

CONCLUSION

For the reasons set forth above, Private Plaintiffs respectfully request that this Court deny

Defendants’ Motion for Summary Judgment on Counts III, IV and V Due to Lack of Standing and

Defendants’ Motion for Summary Judgment on Count II Due to Lack of Standing.

NFB AND THE INDIVIDUAL PLAINTIFFS,

By their Attorneys,

/s/ Christine M. Netski ______________________________ Anthony M. Doniger, BBO #129420 Christine M. Netski, BBO #546936 Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

/s/ Daniel F. Goldstein ______________________________
Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030

/s/ Amy F. Robertson _______________________________ Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 (303) 595-9700

Dated: March 2, 2007

37

Case 1:03-cv-11206-NMG Document 241 Filed 03/02/07 Page 46 of 46 CERTIFICATE OF SERVICE
I, Daniel F. Goldstein, hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants.
/s/ Daniel F. Goldstein ________________________________ Daniel F. Goldstein
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 Case 1:03-cv-11206-NMG Document 244 Filed 03/02/07 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS, et al., ) )

Plaintiffs,

)

)

v.

)

E*TRADE ACCESS, INC., et al.,

)

)

Defendants.

)

)

)

CIVIL ACTION NO. 03-11206-MEL

MOTION IN SUPPORT OF DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT PLAINTIFFS ARE NOT ENTITLED TO VOICE-GUIDANCE TECHNOLOGY
Pursuant to Fed. R. Civ. P. 56 and the Court’s Order filed February 21, 2006, Defendants E*TRADE Access, Inc., E*TRADE Bank, Cardtronics, Inc., and Cardtronics, LP (“Defendants”) respectfully move for summary judgment on Counts I through V of Plaintiffs’ Third Amended Complaint. (If the Court grants Plaintiffs’ motion for leave to file the Fourth Amended Complaint, judgment is sought on Counts I through IV.) No genuine disputes of fact exist to warrant further litigation or trial. All eight current and proposed individual plaintiffs stated that only “voice-guidance” technology renders ATMs accessible to and independently useful by blind people. The two other solutions Plaintiffs’ counsel proposed, refreshable Braille and remote operators connected via hardwired phones, are neither satisfactory to nor sufficient for the Plaintiffs. Consequently, Plaintiffs have not met their burdens under Counts III or IV of the Third Amended Complaint. Plaintiffs also are not entitled to an injunction under Count V requiring Defendants to make ATMs “independently usable” as that phrase is used in the ADA

Case 1:03-cv-11206-NMG Document 244 Filed 03/02/07 Page 2 of 3

Accessibility Guidelines (“ADAAG”) currently in force. Plaintiffs’ sworn testimony

demonstrates that this standard is not achievable except through voice guidance technology, but

this method is expressly not required by the ADAAG (as the Court has already twice ruled).

Plaintiffs’ injuries are therefore based on an improper interpretation of the ADAAG and/or are

not redressable with meaningful relief.

Defendants are filing concurrently with this Motion a supporting Memorandum

with exhibits.

Dated: March 2, 2007

Respectfully submitted,

E*TRADE ACCESS, INC., E*TRADE BANK, CARDTRONICS, INC. AND CARDTRONICS, LP By their attorneys,
/s/ Douglas P. Lobel Douglas P. Lobel David A. Vogel COOLEY GODWARD KRONISH LLP One Freedom Square Reston Town Center 11951 Freedom Drive Reston, Virginia 20190 (703) 456-8000 dlobel@cooley.com dvogel@cooley.com
Joseph L. Kociubes BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, Massachusetts 02110 (617) 951-8000 joe.kociubes@bingham.com

318328v1♦RE

Case 1:03-cv-11206-NMG Document 244 Filed 03/02/07 Page 3 of 3

CERTIFICATE OF SERVICE I, Douglas P. Lobel, hereby certify that on the 2nd day of March, 2007, the MOTION IN SUPPORT OF DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT PLAINTIFFS ARE NOT ENTITLED TO VOICE-GUIDANCE TECHNOLOGY, was filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants.

Patricia Correa, BBO No. 560437 Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, Massachusetts 02108 (617) 727-2200, ext. 2919 patty@correa@ago.state.ma.us
Amy F. Robertson Timothy P. Fox FOX & ROBERTSON, P.C. 910 16th Street, Suite 610 Denver, Colorado 80202 (303) 595-9700 arob@foxrob.com tfox@foxrob.com

Anthony Doniger, BBO No. 129420 Christine M. Netski, BBO No. 546936 SUGARMAN, ROGERS, BARSHAK & COHEN 101 Merrimac Street Boston, Massachusetts 02114-4737 (617) 227-3030 doniger@srbc.co netski@srbc.com
Daniel F. Goldstein Sharon Krevor-Weisbaum BROWN, GOLDSTEIN & LEVY LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 (410) 962-1030 dfg@browngold.com skw@browngold.com

/s/ Douglas P. Lobel Douglas P. Lobel

318328v1♦RE

 
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Case 1:03-cv-11206-NMG Document 269 Filed 09/11/07 Page 2 of 20
accommodations, that offer the services of a public accommodation, and that are located in places of public accommodation, in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12182 and 12183 and the regulations promulgated thereunder, 28 C.F.R. Part 36.101 et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103.
2. The NFB and the Individual Plaintiffs seek certification of a nationwide class and sub-class of blind people who have encountered discrimination when desiring or attempting to use Defendants’ ATMs. The putative class seeks injunctive relief requiring Defendants to make their ATMs accessible nationwide. The putative sub-class seeks injunctive relief requiring Defendant E*TRADE Bank to make reasonable modifications to ensure nondiscrimination. This relief will ensure that banking services that are available to a sighted user of these ATMs are similarly independently available to blind people, of whom there are approximately 1.1 million nationwide, including approximately 35,000 in Massachusetts. In addition, those Individual Plaintiffs who have encountered discrimination with respect to Defendants’ ATMs in Massachusetts seek compensatory and punitive damages as a result of Defendants’ knowing, intentional and deliberate disregard of the law.
JURISDICTION AND VENUE 3. This action is authorized by 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 12188. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367, since each Defendant transacts business in the Commonwealth, maintains facilities in the Commonwealth and the claims of several of the Individual Plaintiffs against each Defendant arise out of the transaction of business in Massachusetts. The Court also has supplemental jurisdiction over the state law claims at issue pursuant to 28 U.S.C. § 1367.
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4. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), since each Defendant, as a corporation, is subject to personal jurisdiction in this District because a substantial part of the events giving rise to this action occurred and continue to occur in this District.
PARTIES 5. The Commonwealth of Massachusetts, represented by the Attorney General, brings this action in the public interest on behalf of all blind people who wish to independently use the Defendants’ ATMs that are located in Massachusetts, and on behalf of all blind Massachusetts residents who desire the opportunity for full and equal enjoyment of E*TRADE Bank’s services. The Attorney General’s principal office is located at One Ashburton Place, Boston, Massachusetts. The Attorney General is authorized to bring this action on behalf of the Commonwealth pursuant to Mass. Gen. Laws. ch. 151B, § 5, in addition to other statutory and common law authority to bring legal actions in the public interest. See, e.g., Mass. Gen. Laws ch. 12, § 10. 6. The NFB, the leading national organization of blind persons, is a non-profit corporation duly organized under the laws of the District of Columbia with its principal place of business in Baltimore, Maryland. It has affiliates in all 50 states, Washington, DC and Puerto Rico. The vast majority of the Federation’s approximately 50,000 members are blind persons and therefore members of the protected class of disabled persons under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. The NFB is widely recognized by the public, Congress, executive agencies of government and the courts as a collective and representative voice on behalf of blind Americans and their families. The purpose of the NFB is
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to promote the general welfare of the blind by (1) assisting the blind in their efforts to integrate themselves into society on terms of equality and independence; and (2) removing barriers and changing social attitudes, stereotypes and mistaken beliefs sighted and blind persons hold concerning the limitations created by blindness that result in the denial of opportunity to blind persons in virtually every sphere of life. The NFB and many of its members have long been actively involved in promoting adaptive technology for the blind, so that blind persons can live and work independently in today’s technology-dependent world. NFB members reside throughout the United States, including the Commonwealth of Massachusetts, and many of its members would use the ATMs and the services offered by Defendants if they were made independently usable by the blind.
7. Adrienne Asch is a blind resident of New York, New York. Until August, 2005, she was a resident of Cambridge, Massachusetts. Ms. Asch is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Ms. Asch is the Edward and Robin Milstein Professor of Bioethics at the Wurzweiler School of Social Work and Professor of Epidemiology and Population Health at the Albert Einstein College of Medicine at Yeshiva University. Starting in at least August, 2003, Ms. Asch has attempted to use Defendants’ ATMs and has suffered discrimination because she was unable to do so independently. She would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank’s services were independently usable by the blind.
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8. Jennifer Bose, a blind resident of Brookline, Massachusetts, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103. Ms. Bose is a researcher at the Institute for Community Inclusion in Boston, Massachusetts. As early as April, 2005, Ms. Bose has attempted to use Defendants’ ATMs and has suffered discrimination because she was unable to do so independently. Ms. Bose would like to use the ATMs offered by Defendants if they were made independently usable by the blind.
9. Norma Crosby, a blind resident of Ruston, Louisiana, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq. Ms. Crosby owns and operates two coffee shops with her husband, who is also legally blind. Starting at least four years ago and as recently as July, 2006, Ms. Crosby has attempted to use Defendants’ ATMs and has suffered discrimination because she was unable to do so independently. She would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank’s services were independently usable by the blind.
10. Dwight Sayer, a blind resident of Winter Garden, Florida, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq. Mr. Sayer works full time and is actively involved in the blind community of Florida. In 2005, Governor Jeb Bush appointed him to the Florida Rehabilitation Council for the Blind. He also currently serves as President of the Orlando Chapter of the National Federation of the Blind; First Vice President of the National Federation of the Blind of Florida; Assistant District Director, Blinded Veterans Association -- Florida Regional
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Group; and serves on the board of the Lighthouse of Central Florida, a vision rehabilitation resources center. Starting at least three years ago and as recently as July, 2006, Mr. Sayer has attempted to use Defendants’ ATMs and has suffered discrimination because he was unable to do so independently. Mr. Sayer would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank’s services were independently usable by the blind.
11. Robert Crowley, Jr., a blind resident of Windsor, New York, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq.. Mr. Crowley is a full-time student at Binghamton University. Starting at least three years ago and as recently as July, 2006, Mr. Crowley has attempted to use Defendants’ ATMs and has suffered discrimination because he was unable to do so independently. He would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank’s services were independently usable by the blind.
12. Raymond Wayne, a blind resident of Brooklyn, New York, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq. Mr. Wayne is the Assistant Managing Attorney for the Law Enforcement Bureau of the New York City Commission on Human Rights and is Secretary of the National Association of Blind Lawyers. Over the past one to three years, and as recently as July, 2006, Mr. Wayne has attempted to use Defendants’ ATMs and has suffered discrimination because he was unable to do so independently. He would like to use the ATMs offered by Defendants if they were made independently usable by the blind.
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13. Terri Uttermohlen, a blind resident of Baltimore, Maryland, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq. Ms. Uttermohlen is an instructor at Virginia Commonwealth University. Starting at least three years ago and as recently as September, 2006, Ms. Uttermohlen has attempted to use Defendants’ ATMs and has suffered discrimination because she was unable to do so independently. She would like to use the ATMs offered by Defendants if they were made independently usable by the blind.
14. Bryan Bashin, a blind resident of Sacramento, California, is a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq. Mr. Bashin is a consultant. Starting at least three years ago and as recently as September, 2006, Mr. Bashin has attempted to use Defendants’ ATMs and has suffered discrimination because he was unable to do so independently. Mr. Bashin would like to use the ATMs offered by Defendants if they were made independently usable by the blind, and to have the choice to be an E*TRADE Bank account holder if that bank’s services were independently usable by the blind.
15. E*TRADE Access, Inc. (“E*TRADE Access”), an Oregon corporation with its principal place of business in Arlington, Virginia, is a subsidiary of E*TRADE Bank. Prior to June 2, 2004, E*TRADE Access owned, operated, controlled and/or leased ATMs under the E*TRADE name.
16. E*TRADE Bank, a federally chartered savings bank with its principal place of business in Arlington, Virginia, is a wholly-owned subsidiary of E*TRADE Financial Corporation. E*TRADE Bank is a public accommodation pursuant to 42 U.S.C. § 12181(7)(f) that offers banking services under the E*TRADE name, including the withdrawal of funds, the
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making of deposits, and the verification of deposits, at over 15,000 ATMs across the United States, including more than 600 in Massachusetts.
17. Cardtronics, LP is a limited partnership organized under the laws of Delaware with a principal place of business at 3000 Hayes Road, Suite 101, Houston, Texas.
18. Cardtronics, Inc. is a corporation organized under the laws of Delaware with a principal place of business at 3000 Hayes Road, Suite 300, Houston, Texas.
19. Prior to June 2, 2004, Cardtronics, LP and Cardtronics, Inc. (“Cardtronics”) owned, operated, controlled and/or leased more than 12,000 ATMs nationwide.
20. On or about June 2, 2004, Cardtronics, LP acquired the ATM business of E*TRADE Access, Inc. The acquisition included approximately 13,200 active ATMs, increasing the ATM network owned, operated, controlled and/or leased by Cardtronics to over 25,000 ATMs nationwide, becoming the nation’s largest independent owner/operator of ATMs.
CLASS ACTION ALLEGATIONS 21. The NFB and the Individual Plaintiffs seek to maintain this action as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class (“Class”) consists of all blind people who, during a time period to be determined by this Court, were denied, or are currently being denied, on the basis of disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any ATM owned, operated, controlled, and/or leased by Defendant Cardtronics anywhere in the United States. 22. The NFB and Individual Plaintiffs Asch, Crosby, Sayer, Crowley, and Bashin also seek certification of a sub-class (“Sub-Class”) under rule 23(b)(2), consisting of all blind people who, during a time period to be determined by this Court, were denied, or are currently being denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or
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accommodations of E*TRADE Bank due to the denial, on the basis of disability, of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any ATM through which the services of E*TRADE Bank may be accessed.
23. The Class and Sub-Class are each believed to consist of well over 1,000 members who are dispersed throughout the United States. Joinder of all such Class and Sub-Class members in this lawsuit is impracticable.
24. There are numerous questions of law and fact common to the Class, including but not limited to:
a. Whether Cardtronics owns, operates, leases, leases to and/or controls places of public accommodation under 42 U.S.C. §§ 12181(7) & 12182(a);
b. Whether Cardtronics’s ATMs are accessible to and independently useable by blind people; and
c. What steps Cardtronics is required to take to make its ATMs accessible to and independently useable by blind people.
25. There are numerous questions of law and fact common to the Sub-Class, including but not limited to:
a. Whether E*TRADE Bank owns, operates, leases, leases to and/or controls places of public accommodation under 42 U.S.C. §§ 12181(7) & 12182(a);
b. Whether the services that E*TRADE Bank makes available through its ATMs are accessible to and independently useable by blind people; and
c. What steps E*TRADE Bank is required to take to make its services available to blind people.
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26. The claims of the Individual Plaintiffs are typical of the claims of the members of the Class and Sub-Class. The Individual Plaintiffs are all blind people who have been injured by the fact that one or more of Cardtronics’s ATMs was not accessible to and/or independently useable by them. Individual Plaintiffs Asch, Crosby, Sayer, Crowley, and Bashin are all blind people who have been injured by the fact that they do not have the choice to become an E*TRADE Bank account holder on a nondiscriminatory basis. Because of this, each of the Individual Plaintiffs brings a claim against each Defendant for violation of Title III of the ADA, which claims are typical of those of the Class and (in the case of Individual Plaintiffs Asch, Crosby, Sayer, Crowley, and Bashin) of the Sub-Class. Similarly, the vast majority of NFB’s 50,000 members are blind people from around the United States who are members of the proposed Class and Sub-Class, many of whom have claims typical of those of the Class and SubClass.
27. NFB and the Individual Plaintiffs will fairly and adequately protect the interests of the Class and Sub-Class because they have retained counsel with extensive experience in class action and disability rights litigation. NFB has a long history of advocating for the rights of blind people as do each of the Individual Plaintiffs. None of the named plaintiffs has interests that conflict in any way with those of the Class or Sub-Class.
28. This action may be maintained as a class action pursuant to Rule 23(b)(2) because Defendants have acted or refused to act -- and are continuing to act and refuse to act -- on grounds generally applicable to the class, in that most of Defendants’ ATMs are inaccessible to all class members and Defendants refuse to make those ATMs accessible to class members. This makes appropriate final injunctive relief or corresponding declaratory relief -- declaring the Defendants
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to be in violation of the ADA and ordering them to make their ATMs and banking services comply with the ADA -- with respect to the class as a whole.
FACTS 29. Prior to June 2, 2004, E*TRADE Access held legal title to only a few thousand of the more than 15,000 ATMs it operated within its network (approximately 17 in Massachusetts). After demand and as a result of negotiation, E*TRADE Access agreed to make these ATMs accessible to the blind. 30. Prior to June 2, 2004, E*TRADE Access operated and controlled the balance of ATMs in its fleet at the sites of various retail merchants, pursuant to a variety of contractual arrangements with the merchants. On information and belief, E*TRADE Access leased back from merchants some of the ATMs it operated and controlled, including some of the ATMs it operated and controlled within Massachusetts. As of June 2, 2004, E*TRADE Access had not made these ATMs accessible to the blind. As a result of the June 2, 2004, acquisition of E*TRADE Access’s ATM business by Cardtronics, Cardtronics now operates, controls and/or leases all of these ATMs, upon information and belief, under the E*TRADE name (“E*TRADE ATMs”). 31. In addition to the E*TRADE ATMs, Cardtronics continues to own, operate, control and/or lease more than 12,000 ATMs nationwide (“Cardtronics ATMs”). 32. At all times relevant to this action, E*TRADE Bank has offered its banking services, including fee-free transactions to E*TRADE Bank account holders, through E*TRADE ATMs.
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33. Each E*TRADE ATM (a) displays the E*TRADE logo, and (b) offers fee-free transactions to E*TRADE Bank account holders. In addition, E*TRADE Bank represented on its website that it operates the second largest network of ATMs in the United States.
34. E*TRADE Bank, each E*TRADE ATM, each Cardtronics ATM, each of the locations in which those ATMs are found, and the network of E*TRADE and Cardtronics ATMs are all public accommodations as defined by Title III of the ADA, 42 U.S.C. § 12181(7), the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq., and the Massachusetts Public Accommodations Act, Mass. Gen. Laws ch. 272, § 92A.
35. The banking services offered by E*TRADE Bank through E*TRADE ATMs in Massachusetts constitute a program or activity under Article 114 of the Amendments to the Massachusetts Constitution, Mass. Const. amend. CXIV, and the services and facilities of a public accommodation under 42 U.S.C. § 12181.
36. Most E*TRADE and Cardtronics ATMs are inaccessible because they use computer screen text prompts that are undetectable to blind people to guide customers through banking transactions. These computer screen text prompts are not translated into a medium accessible to the blind, such as audio output.
37. Currently, if a blind person enters the wrong personal identification number (“PIN”) into an E*TRADE or Cardtronics ATM, the ATM may retain his or her card. Also, a blind person who presses an incorrect function key on an E*TRADE or Cardtronics ATM has no way of knowing that he or she has made a mistake in the transaction.
38. As a result of this inaccessibility, blind people, including the Individual Plaintiffs and members of the NFB, are not able to independently use E*TRADE or Cardtronics ATMs, unlike sighted people.
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39. E*TRADE and Cardtronics ATMs threaten blind people with loss of their private information. Blind people who wish to use an E*TRADE or Cardtronics ATM have no choice but to repeatedly reveal their private PINs to others to complete an ATM banking transaction.
40. As a result, blind people, including the Individual Plaintiffs and members of the NFB who wish to use an E*TRADE or Cardtronics ATM are not able to maintain the security of their private PINS, unlike sighted people.
41. Although some E*TRADE and Cardtronics ATMs have Braille keypads and labels, this feature is not an effective accommodation under the ADA:
a. Not all persons who are blind read Braille. In fact, current national figures estimate a Braille literacy rate of only 15% among persons who are blind; and;
b. Braille keypads and labels are static and do not provide sequential computer screen instructions or any information about the contents of any given screen.
42. Without injunctive relief, blind people, including the Individual Plaintiffs and members of the NFB, will continue to be unable to independently use E*TRADE and Cardtronics ATMs in violation of their rights under the ADA, the Massachusetts Public Accommodations Act, and the Massachusetts Equal Rights Act.
43. The Individual Plaintiffs and the NFB’s members are legally blind and recognized as a protected class under the ADA, 42 U.S.C. § 12102(2), and the regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq.
44. The Individual Plaintiffs have either attempted to independently use ATMs owned, operated, controlled, leased or leased by Cardtronics or such an attempt would constitute a futile
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gesture; they would all like to be able to use such ATMs in the future and will do so as soon as they can do so independently.
45. Individual Plaintiffs Asch, Crosby, Sayer, Crowley, and Bashin would like to become E*TRADE Bank customers if they could do so without discrimination.
46. There are E*TRADE and Cardtronics ATMs located in Massachusetts which blind people would like to independently use, and there are blind Massachusetts residents who would like the opportunity for full and equal enjoyment of E*TRADE Bank services.
COUNT I (Violation of the ADA’s Full and Equal Enjoyment of Services Mandate) 47. The allegations contained in the previous paragraphs are incorporated by reference. 48. E*TRADE Bank is a public accommodation, and each Defendant owns, operates, controls, leases and/or leases to a place of public accommodation as defined by Title III of the ADA, 42 U.S.C. § 12181(7)(F). 49. Each Defendant, in violation of 42 U.S.C. § 12182(a), has failed to make its ATM banking services fully accessible and independently usable by individuals who are blind.
COUNT II (Violation of ADA’s Reasonable Modification Mandate) 50. The allegations contained in the previous paragraphs are incorporated by reference. 51. Defendant E*TRADE Bank, in violation of 42 U.S.C. § 12182(b)(2)(A)(ii), has failed to make reasonable modifications (by failing to modify policies, practices and procedures) necessary to make its ATM banking services fully accessible and independently usable by individuals who are blind.
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52. Modifying its policies, practices and procedures to afford blind persons full accessibility and independent use of ATMs that E*TRADE Bank owns, operates, leases and/or controls would not fundamentally alter the nature of E*TRADE Bank’s services.
COUNT III (Violation of the ADA’s Auxiliary Aids and Services Mandate) 53. The allegations contained in the previous paragraphs are incorporated by reference. 54. Defendants, in violation of the auxiliary aids and services provision of the ADA, 42 U.S.C. § 12182(b)(2)(A)(iii), have failed to make their ATM banking services fully accessible and independently usable by blind persons. 55. Providing auxiliary aids and services to make ATMs the Defendants own, operate, control, lease and/or lease to others, and through which E*TRADE Bank offers its banking services, accessible to and independently usable by blind persons would neither fundamentally alter the nature of Defendants’ banking services nor result in an undue burden.
COUNT IV (Violation of the Accessible Facilities Mandate) 56. The allegations contained in the previous paragraphs are incorporated by reference. 57. Each Defendant, in violation of 42 U.S.C. §12183, owns, operates, controls and/or leases or offers banking services through, ATMs that were installed after January 26, 1993 and are not readily accessible to and independently usable by blind persons. 58. Defendants are required to comply with the Department of Justice Standards for Accessible Design (“Standards”). 28 C.F.R. pt 36, app A; see 28 C.F.R. § 36.406. Standards Section 4.34.5 requires that “[i]nstructions and all information for use [in ATM’s] shall be made accessible to and independently usable by persons with vision impairments.”
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59. Each Defendant, in violation of 42 U.S.C. §12183 and 28 C.F.R. § 36.406, has failed to make its ATM banking services fully accessible and independently usable by blind persons.
COUNT V (Violation of the Massachusetts Public Accommodations Act) 60. The allegations contained in the previous paragraphs are incorporated by reference. 61. Plaintiffs Adrienne Asch and Jennifer Bose are legally blind and recognized as a protected class under Mass. Gen. Laws ch. 272, § 98. 62. Each Defendant owns, operates, controls and/or leases a place of public accommodation as defined by Mass. Gen. Laws ch. 272, § 92A. 63. Each Defendant, in violation of Mass. Gen. Laws ch. 272, § 98, has failed to make its ATM banking services fully accessible and independently usable by individuals who are blind.
COUNT VII (Violation of the Massachusetts Equal Rights Act) 64. The allegations contained in the previous paragraphs are incorporated by reference. 65. Plaintiffs Adrienne Asch and Jennifer Bose and the NFB’s members are legally blind and are recognized as a protected class under Mass. Const. amend. CXIV and under the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103(a). 66. The banking services offered by E*TRADE Bank through E*TRADE and Cardtronics ATMs in Massachusetts constitute a program or activity under Mass. Const. amend. CXIV. 67. Each Defendant has excluded blind people from the participation in and benefits of the banking services offered by E*TRADE Bank through E*TRADE and Cardtronics ATMs in
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Massachusetts and has subjected Plaintiffs to discrimination under Mass. Const. amend. CXIV and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103(a).
PRAYERS FOR RELIEF WHEREFORE, Plaintiffs request that the Court:
(a) exercise jurisdiction over this action; (b) certify a Class defined as follows: all blind people who, during a time period to be determined by this Court, were denied, or are currently being denied, on the basis of disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any ATM owned, operated, controlled, or leased by Defendant Cardtronics anywhere in the United States. (c) certify a Sub-Class defined as follows: all blind people who, during a time period to be determined by this Court, were denied, or are currently being denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of E*TRADE Bank due to the denial, on the basis of disability, of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any ATM through which the services of E*TRADE Bank may be accessed. (d) Certify the NFB and Adrienne Asch, Jennifer Bose, Norma Crosby, Dwight Sayer, Robert Crowley, Jr., Raymond Wayne, Terri Uttermohlen and Bryan Bashin as representatives of the Class, certify Adrienne Asch, Norma Crosby, Dwight Sayer, Robert Crowley, Jr., and Bryan Bashin as representatives of the Sub-Class, and certify the attorneys for the NFB and Individual Plaintiffs (listed below) as class counsel;
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(e) declare that the actions and inactions of Defendants E*TRADE Access, Inc., E*TRADE Bank and Cardtronics violate Title III of the ADA, 42 U.S.C. §§ 12182 and 12183, 28 C.F.R. § 36.101 et seq., the Massachusetts Public Accommodations Act, Mass. Gen. Laws. ch. 272 §§ 92A and 98, and the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103;
(f) enjoin each of the Defendants from continuing to violate the ADA and Massachusetts law and order all Defendants immediately to take the steps necessary to comply with the ADA and Massachusetts law, including but not limited to making the necessary modifications to the ATMs they own, operate, control and/or operate and lease, so that blind people may have access to and independently use these ATMs, providing auxiliary aids and services required to make their ATMs accessible to and independently useable by blind people, and (in the case of E*TRADE Bank) making reasonable modifications to policies, practices and procedures necessary to eliminate discrimination on the basis of disability; and
(g) award actual damages pursuant to Mass. Gen. Laws ch. 93, § 103, Mass. Gen. Laws ch. 272, §§ 92A and 98 and Mass. Gen. Laws ch. 151B, §§ 5 and 9;
(h) award punitive damages pursuant to Mass. Gen. Laws ch. 272, §§ 92A and 98 and Mass. Gen. Laws ch. 151B, §§ 5 and 9;
(i) award reasonable attorneys’ fees, litigation expenses and costs pursuant to 42 U.S.C. § 12205, and Mass. Gen. Laws ch. 151B, §§ 5 and 9; and
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CERTIFICATE OF SERVICE I, Christine M. Netski, hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants.
/s/ Christine M. Netski ________________________________ Christine M. Netski

 
 Case 1:03-cv-11206-NMG Document 279 Filed 12/04/07 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et ai.,
Plaintiffs v. E*TRADE ACCESS, INC., et al.,
Defendants

CIVIL ACTION NO. 03-11206-MEL

FINAL ORDER AND JUDGMENT
Plaintiffs, Commonwealth of Massachusetts, National Federation of the Blind, Inc. ("NFB"), Adrienne Asch, Jennifer Bose, Norma Crosby, Dwight Sayer, Robert Crowley, Jr., Raymond Wayne, Terri Uttermohlen, and Bryan Bashin, seek final approval of the class action settlement that was approved preliminarily by this Court on July 26. 2007. See Memorandum and Order Granting Unopposed Motion for Preliminary Approval of Class Action Settlement and for Fairness Hearing ("Preliminary Approval Order"). Specifically, Plaintiffs have moved the Court for an Order: (1) fInding that the class action Settlement Agreement between Plaintiffs and Defendants, Cardtronics, LP, and Cardtronics, Inc. (collectively "Cardtronics"), is a fair, reasonable and adequate settlement of all of the claims of the class against Defendants, overruling the single objection to the proposed settlement and finding that each class member shall be bound by the Settlement Agreement, including its release; (2) finding that the Notice published to the class satisfies the requirements of due process and Fed. R. Civ. P. 23; (3) approving an award of attorneys' fees and costs by Defendants to Plaintiff, NFB, in the amount

Case 1:03-cv-11206-NMG Document 279 Filed 12/04/07 Page 2 of 13
of $900,000, as agreed to by the parties; (4) dismissing this lawsuit on the merits and with prejudice as to all claims in the lawsuit against all Defendants; (5) attaching and incorporating by reference the terms of the Settlement Agreement; and (6) retaining jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation and enforcement of the Settlement Agreement. I. Background
A. Plaintiffs' Claims Cardtronics currently owns and/or operates at least 23,300 ATMs throughout the United States, including approximately 15,000 ATMs formerly owned and/or operated by Defendant E*TRADE Access, Inc. ("Access").' Approximately half of these ATMs are owned by independent merchants who are customers ofCardtronics ("Merchant-Owned ATMs"). This litigation concerns Plaintiffs' request that Cardtronics's fleet of ATMs be made accessible to and independently useable by blind people through the use of voice-guidance technology. Some of the ATMs in the Cardtronics fleet already have voice guidance. Those ATMs that are not currently voice-guided vary in their capacity to be made voice-guided. Many newer machines have the capacity to be upgraded to provide voice-guidance through a straightforward retrofit process ("Upgradeable ArMs"). Other, older, machines are not able to be upgraded and must be replaced completely in order to make voice guidance available. Plaintiffs' Fourth Amended and Supplemental Class Action Complaint C'Fourth Amended Complaint") alleges that Cardtronics has failed to make all of the ATMs it owns and/or operates accessible to blind individuals in violation of Title III of the ADA, 42 U.S.c.
! On or about June 2, 2004, Cardtronics LP acquired Access's ATM business.
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§§ 12181 et seq., and Section 4.34.5 of the Department of Justice Standards for Accessible Design, 28 C.FR pt 36, app. A ("Standards") (requiring that ATMs be "accessible to and independently useable by persons with vision impairments"). Title III is enforceable through a private right of action for injunctive relief and prevailing plaintiffs are entitled to attorneys' fees. See 42 U.S.c. §§ 12188(a)(l), (2) and 12205. Plaintiffs have also alleged violations of the Massachusetts Public Accommodations Act ("MPAA"), Mass. Gen. Laws eh. 272, §§ 92A and 98, and the Massachusetts Equal Rights Aet CMERA"), Mass. Gen. Laws eh. 93, § 103.
Although numerous procedural and substantive disputes have arisen throughout this litigation, the case turns primarily on the vigorously contested issues of whether Defendants' ATMs are in violation of the Standards and, if they are, whether Plaintiffs are entitled to an injunction that would require Cardtronics to install voice-guidance capahilities on all ATMs it owns andlor operates, including Merchant-Owned ATMs. The lawsuit also includes claims against Defendant E*TRADE Bank, Inc. concerning its banking policies applicable to consumers' use of the Cardtronics ATMs. These claims are derivative of the claims addressing the accessibility of the Cardtronics ATMs.
B. Pre-Filing Settlement Negotiations On June 9,2003, after lengthy negotiations, the Commonwealth and the NFB entered into a Partial Settlement Agreement ("PSA") with Defendants Access and E*TRADE Bank, Inc. (collectively "E*TRADE"), pursuant to which Access agreed to equip the ATMs it owned with voice guidance over a period of two and one-half years. The parties were not able to reach agreement with respect to Merchant-Owned ATMs.
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C. Litigation

On June 23, 2003, the Commonwealth and the NFB, along with several individual blind

people and the NFB's Massachusetts affiliate, filed the present suit against E*IRADE. From its

inception, this litigation has been hard-fought. As fuJIy detailed in the Preliminary Approval

Order, this complex case involved numerous dispositive motions, voluminous document

discovery and several significant discovery-related motions.

II. Summary of the Settlement

After an all-day mediation on April 9,2007, and following further negotiations over the

course of more than two months, the parties executed the Settlement Agreement on June 21,

2007.

In summary, the settlement requires:

•

All Cardtronics-Owned AIMs will be voice-guided by the end of this year, with

two exceptions: a set of approximately 1,600 machines that already have voice-

guidance, but do not have, as otherwise required by the Settlement Agreement,

audible verification of all of the inputs by the AIM user; and a set of no more

than 177 machines will be voice-guided by mid-200S. (Settlement Agreement, 11

3.1.)

•

As of April 9, 2007 and going forward, Cardtronics will only install Cardtronics-

Owned AIMs that are voice-guided. (Settlement Agreement, 113.1)

•

As of April 9, 2007 and going forward, Cardtronics will only sell or make

available to merchants AIMs that are voice-guided. (Settlement Agreement,

113.2.1.)

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•

Cardtronics will identify the smallest subset of Merchant-Owned ATMs without

voice guidance that collectively account for 80% of transactions at Merchant-

Owned ATMs ("High Volume Merchants") and will, within ninety (90) days of

approval, offer those merchants that have Upgradeab\e ATMs the opportunity to

upgrade to add voice guidance at no cost, and will offer those merchants whose machines are not upgradeable the opportunity to purchase a voice-guided machine at Cardtronics's wholesale cost. (Settlement Agreement, ~ 3.2.2.)

•

Regardless of the outcome of this marketing plan, Cardtronics will ensure that, by

July 1,2010, at least ninety (90) percent of all transactions on the ATMs covered

by the settlement occur on voice-guided ATMs. (Settlement Agreement, ~ 3.3.)

•

After July 1, 2010, Cardtronics will not add or renew any merchant-owned ATMs

that are not voice-guided. so that any remaining ATMs constituting less than 10%

of transaction volume that are not yet voice-guided will either become so or be

eliminated. (Settlement Agreement, ~ 3.3.2.)

•

Any additional functions that are added to ATMs covered by the settlement will

be accessible to blind patrons within ninety (90) days unless Cardtronics believes

doing so would not be technically feasible without causing undue burden or delay,

in which case the parties are to meet and confer to attempt to eliminate the

obstructions to adding such new functions. (Settlement Agreement, ~ 3.7.)

•

Cardtronics-owned AIMs acquired after final approval of the settlement

agreement shall be voice-guided within two (2) years; after-acquired Merchant-

owned ATMs that are Merchant-Owned by High Volume Merchants will receive

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the upgrade or replacement offers described above. (Settlement Agreement,

11 3.6.)

•

Cardtronics will provide web-based information and signage to assist blind

patrons in identifying which of its ATMs are voice-guided. (Settlement

Agreement"m 4.1,4.2.)

•

Cardtronics will report to Class Counsel throughout the term of the Settlement

Agreement concerning the number of voice-guided ATMs and the percentage of

transactions occurring on such ATMs, and that progress will be verified by

Cardtronics and monitored by the NFB. (Settlement Agreement, 114.4.)

•

Cardtronics must comply with any future regulatory requirements that impose

additional requirements, but if regulations require less than the Settlement

Agreement, the Settlement Agreement controls. (Settlement Agreement 115.1)

•

Class members will release claims for injunctive relief and attorneys' fees under

Title III of the ADA, the MPAA, the MERA, and any other claims held by the

named plaintiffs to the extent such claims relate to the accessibility of ATMs to

blind people. Class members also release claims for injunctive relief under state

law to the extent it incorporates or is equivalent to Title III. (Settlement

Agreement, 11117.1,7.2.)

•

Class members (excepting the named plaintiffs) do not release claims for

damages. (Settlement Agreement, 117.1.3.)

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•

Cardtronics will pay $900,000 in attorneys' fees to the NFB and make a

contribution of $100,000 to the local consumer aid fund of the Massachusetts

Attorney General, (Settlement Agreement, mT 9.1,9.2.)

Because the Settlement Agreement applies to all Cardtronics ATMs -- including former

E*TRADE ATMs -- it supercedes the earlier PSA among E*TRADE, the Commonwealth, and

the NFB. Although E*TRADE is not a party to the Settlement Agreement, that agreement

concludes this litigation and calls for the dismissal with prejudice of all claims in this case

against all Defendants. (Settlement Agreement, 11 2.7(c).) The implementation of voice

guidance on the ATMs makes it unnecessary for E*TRADE Bank to change its policies as

sought in the lawsuit.

In the Settlement Agreement, the parties agreed that the Court should retain jurisdiction

of this case for purposes of the interpretation, administration, implementation, effectuation, and

enforcement of this Agreement. (Settlement Agreement, 11 2.7(d).) In addition, Defendants have

withdrawn their opposition to Plaintiffs' motion for leave to file a Fourth Amended Complaint

(Settlement Agreement, 11 2.1) and the Court has granted the parties' joint motion for certitication

of a settlement class, which includes all persons who are Blind patrons of ATMs covered by the

Settlement Agreement.

III. Preliminary Approval

As mentioned, on July 26, 2007, this Court granted Plaintiffs' Unopposed Motion for

Preliminary Approval of Class Action Settlement and scheduled a Fairness Hearing on the

proposed settlement for December 4, 2007. In the Preliminary Approval Order, the Court

7

Case 1:03-cv-11206-NMG Document 279 Filed 12/04/07 Page 8 of 13
approved the parties' proposed plan for notifying class member of the settlement, as well as the form ofthe notice to be utilized for this purpose ("Notice"). IV. Notice to the Class
The Court finds that the Notice approved in the Court's Preliminary Approval Order was made available on Cardtronics's website from approximately August 23,2007 to November L 2007 and that a copy of the Notice was also available on the NFB's website during that same period.
The Court also finds that a copy of the Notice was mailed to a list of over 900 organizations, including a number composed of, and/or focused on the issues of, blind people. Of those mailings, 36 were returned due to incorrect addresses. The correct addresses were ascertained for 11 of those returned mailings and the Notice was then sent to those correct addresses. In addition, the Notice was emailed to 1,036 email addresses relating to the organizations referenced above, with a cover letter requesting that the recipient post and forward the Notice. Of those emails, 186 were returned as undeliverable. Fifteen organizations to whom the Notice was emailed notified class counsel that they had forwarded the Notice to other individuals or lists of individuals thOUght to be class members. Another ten organizations notified class counsel that they had posted the Notice on their websites. The NFB sent the Notice to over 50 email lists of blind individuals, including lists of blind lawyers, students, and travelers. In each of these paper and electronic mailings, counsel for the class offered to provide Braille versions of the Notice andior the Settlement Agreement. Class counsel ultimately received and honored six requests for Braille documentation.
8

Case 1:03-cv-11206-NMG Document 279 Filed 12/04/07 Page 9 of 13
The Court finds further that the Notice was published in the August/September edition of the Braille Monitor, which is the publication of the NFB and is regularly sent to its approximately 50,000 members, among others. The Notice was also published in the September, 2007, edition of the Braille Forum, as well as in the New York Times, the Los Angeles Times, and USA Today on August 28, 2007.
In addition, the Court finds that there has been only one objection to the proposed settlement. This objection purports to be on behalf of Mason P. James, of Loveland, Texas, and states only that "[mJe wish to object to the proposed settlement." See Objection by Mason P. James (Sept. 27, 2007, Paper No. 270),
DISCUSSION I. The Settlement Agreement is Granted Final Approval,
A court may approve the settlement of a class action only upon finding that it is "fair, reasonable, and adequate." Fed. R, Civ. P. 23(e)(I)(C); see also City P'ship Co, v, Atlantic Acquisition Ltd P 'ship, 100 F.3d 1041,1043 (1st Cir. 1996) (same), The First Circuit has recognized a clear policy of encouraging settlements in class action cases, and has stated that "[wJhen suflicient discovery has been provided and the parties have bargained at arms-length, there is a presumption in favor of the settlement." City P'ship, 100 F.3d at 1043. In determining the fairness, reasonableness and adequacy of a proposed class action settlement, several courts in this district have looked to the following factors set forth in City ofDetroit v. Grinnell Corp" 495 F.2d 448, 463 (2d Cir. 1974), overruled on other grounds by Missouri v. Jenkins, 491 U.S. 274 (1989):
9

Case 1:03-cv-11206-NMG Document 279 Filed 12/04/07 Page 10 of 13
(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of tbe proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. For all of the reasons set forth in the Court's Preliminary Approval Order, an analysis of these factors strongly supports this Court's final approval of the Settlement Agreement as fair, reasonable and adequate. In addition, this Ccurt overrules the single objection to the proposed settlement, as no reasons were provided for that objection as required by the Notice approved by the Court. Therefore, this Court also finds that all class members are bound by the Settlement Agreement, including its release provisions.
II. Notice to the Class Rule 23(e) states that "notice of the proposed dismissal or compromise shall be given to
all members of the class in such manner as the court directs." The notice must satisfy Rule 23, as well as due process requirements. Cf Besinga v. United States, 923 F.2d 133, 136-37 (91n Cir. 1991) (requirements of due process and Fed. R. Clv. P. 23(c)(2)(B) are similar). '''[I]t is the court's duty to ensure that the notice ordered is reasonably calculated to reach the absent class members." Reppert v. Marvin Lumber and Cedar Co., 359 F.3d 53, 56 (1st CiT. 2004) (citations omitted). "When individual notice is infeasible, notice by publication in a newspaper of national circulation ... is an acceptable substitute." Mirtasihi v. Fleet Mortgage Corp., 356 F.3d 781, 786 (7th CiL 2004).
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Case 1:03-cv-11206-NMG Document 279 Filed 12/04/07 Page 11 of 13
This Court finds that the notice program approved in its Preliminary Approval Order and now implemented by the parties was the best notice practicable under the circumstances and satisfied the requirements of due process and Fed. R. Civ. P. 23. The parties represented that there was no readily accessible list of the potential class members in this case and that such a list likely could not be created without enormous effort and expenditure. Notice here involved a combination of individual mailing -- through the Braille Monitor and Braille Forum to tens of thousands of blind people -- and publication in three newspapers of national circulation: The New York Times, Los Angeles Times, and USA Today. Under these circumstances, individual notice was not required in order to satisfy the requirements of due process and Fed. R. Civ. P. 23. III. Attorneys' Fees and Costs
Class counsel have submitted an Unopposed Petition for an Award of Attorneys' Fees and Costs, pursuant to Fed. R. Civ. P. 23(h) and 54(dX2). Specifically, class counsel request that the Court approve an award of attorneys' fees and costs by Defendants to the NFB in the amount of $900,000, the amount agreed to by the parties as part of the class action settlement.
The ADA provides that courts may award the prevailing patty its "reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. Rules 23(h)(l) and (2) require that notice and an opportunity to object be provided. In this case, the Notice sent pursuant to the Preliminary Approval Order included the amount of the fees and provided an opportunity to object and no class member has objected to the proposed fee award.
In evaluating a fee petition in a case such as this, the Court is to consider "the reasonableness of the hours spent and the hourly rate sought." Weinberger v. Greal Northern Nekoosa Corp., 925 F.2d 518, 529 (1st Cir. 1991) (quoting In reSpiliance, 884 F.2d 642, 647
11

Case 1:03-cv-11206-NMG Document 279 Filed 12/04/07 Page 12 of 13
(1st CiT. 1989». After due consideration of the filings of class counsel and the relevant case law cited therein, this Court finds that a fee award in the amount of $900,000 is well within the bounds of reasonableness under the circumstances of this case. The time spent by class counsel in litigating this complex case clearly was justified. In addition, the lodestar amount - calculated by multiplying these hours by reasonable prevailing rates- is almost twice the amount agreed upon in the settlement. The Court finds thaI the hourly rates charged by class counsel are commensurate with the rates charged by Boston attorneys of comparable experience in comparable matters and that the rates actually billed to the NFB were below those rates. In addition, the award sought is well below the actual amount of fees and costs paid by the NFB in connection with this litigation. For these reasons, the Court approves the fee award agreed to by the parties as part of the Settlement Agreement. IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. This Court has jurisdiction over the subject matter of this lawsuit and over all of the parties to the lawsuit, including the named Plaintiffs, all members of the class, and Defendants.
2. The Court adopts and incorporates the findings of the Preliminary Approval Order and hereby approves the Settlement Agreement as fair, reasonable and adequate in all respects. This is especially so in view of the complexity, expense and probable duration of further litigation, the risks of establishing liability, the intensive arm's length negotiations of experienced counsel and the reasonableness of the relief obtained, considering the range of possible outcomes and the attendant risks of litigation.
12

Case 1:03-cv-11206-NMG Document 279 Filed 12/04/07 Page 13 of 13

3. The Court overrules the single objection to the settlement and finds that each class member is bound by the Settlement Agreement, including its release.
4. The Court finds that the Notice published to the class satisfies the requirements of due process and Fed. R. Civ. P. 23.
5. The Court finds that the attorneys' fees and costs sought by class counsel are reasonable and approves an award of fees and costs, in the amount of $900,000, as agreed to by the parties.
6. The Court dismisses this lawsuit on the merits and with prejudice as to all claims in the lawsuit against all Defendants.
7. The Court attaches hereto as Exhibit 1 and incorporates into this Final Order and Judgment the tenns of the Settlement Agreement.
8. The Court retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation and enforcement of the Settlement Agreement.

It is so ordered.

Dated:
397837

U.S.DJ.

13

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEALTH OF MASSACHUSETTS, et al., ) )

Plaintiffs,

)

)

v.

)

E*TRADE ACCESS, INC., et al.,

)

)

Defendants.

)

)

CIVIL ACTION NO. 03-11206-MEL

CLASS ACTION SETTLEMENT AGREEMENT

By the Plaintiffs:
Commonwealth of Massachusetts Office of the Attorney General One Ashburton Place Boston, MA 02108-1598
National Federation of the Blind 1800 Johnson Street Baltimore, MD 21230
Adrienne Asch Bryan Bashin Jennifer Bose Norma Crosby Robert Crowley Dwight Sayer Terri Uttermohlen Raymond Wayne

By the Defendants:
Cardtronics, Inc. Cardtronics LP 3110 Hayes Road, Suite 300 Houston, Texas 77082 USA

Dated: June 22, 2007

TABLE OF CONTENTS
CLASS ACTION SETTLEMENT AGREEMENT......................................................................... i DEFINITIONS................................................................................................................................ 1 PREAMBLE ................................................................................................................................... 4 MUTUAL PROMISES................................................................................................................... 5 1. EFFECTIVE DATE............................................................................................................... 5 2. PROCEDURES FOR CLASS-WIDE SETTLEMENT......................................................... 6
2.1. Amendment of Complaint............................................................................................. 6 2.2. Certification of Class .................................................................................................... 6 2.3. Other Pending Motions ................................................................................................. 6 2.4. Preliminary Approval.................................................................................................... 6 2.5. Notice by Publication.................................................................................................... 6 2.6. Objections to Agreement .............................................................................................. 7 2.7. Final Approval Hearing and Final Judgment................................................................ 7 2.8. Right to Withdraw from Settlement.............................................................................. 8 2.9. Prior Court Orders......................................................................................................... 8 2.10 Best Efforts ................................................................................................................... 8 3. VOICE GUIDANCE IMPLEMENTATION......................................................................... 8 3.1. Cardtronics-Owned ATMs............................................................................................ 8 3.2. Merchant-Owned ATMs............................................................................................... 9 3.3. July 1, 2010 Deadline ................................................................................................... 9 3.4. New Technologies ........................................................................................................ 9 3.5 Termination of Partial Settlement Agreement ............................................................ 10 3.6 After-Acquired ATMs ................................................................................................ 10 3.7 Advanced Functionality .............................................................................................. 10 3.8 Divested ATMs........................................................................................................... 11 3.9 Deadline ...................................................................................................................... 11 4. MISCELLANEOUS IMPLEMENTATION REQUIREMENTS........................................ 11 4.1 Web-Based List........................................................................................................... 11 4.2 Signage........................................................................................................................ 11 4.3 Reserved...................................................................................................................... 11 4.4 Notification, Verification and Monitoring.................................................................. 12 5. CHANGES IN LAWS GOVERNING ACCESSIBILITY OF ATMS................................ 15 5.1 New Laws ................................................................................................................... 15 5.2 Notice of Modification of Agreement......................................................................... 15 6. NO ADMISSION OF LIABILITY...................................................................................... 15 6.1 Purpose of Agreement Is To Avoid Further Litigation............................................... 15 6.2 No Admissions............................................................................................................ 15 6.3 No Use of Agreement ................................................................................................. 16 6.4 No Effect of Court Approval or Rejection.................................................................. 16 7. RELEASE ............................................................................................................................ 16 7.1 Scope of Release ......................................................................................................... 16 7.2 Release of Claims ....................................................................................................... 17 7.3 Covenant Not To Sue.................................................................................................. 17 7.4 Subsequent Discovery................................................................................................. 17 7.5 Failure to Receive Notice............................................................................................ 18
ii

7.6 Survival of Consumer Contracts................................................................................. 18 7.7 No Effect On Obligations Imposed In This Agreement ............................................. 18 8. THIRD PARTY BENEFICIARIES..................................................................................... 18 8.1 Acknowledge Beneficiaries ........................................................................................ 18 8.2 No Other Beneficiaries ............................................................................................... 18 9. ATTORNEYS FEES AND CONTRIBUTION TO THE COMMONWEALTH ............... 18 9.1 Contribution to the Commonwealth............................................................................ 18 9.2 Attorneys’ Fees and Costs .......................................................................................... 19 10. NOTICE TO PARTIES ....................................................................................................... 19 11. DURATION AND TERMINATION .................................................................................. 20 12. FURTHER ACTS ................................................................................................................ 20 13. DISPUTE RESOLUTION ................................................................................................... 20 13.1 Notification of Non-Compliance and Opportunity to Cure or Address...................... 20 13.2 Meet and Confer ......................................................................................................... 20 13.3 Right to File Claim...................................................................................................... 21 13.4 Modification of Meet and Confer Deadlines .............................................................. 21 14. GOVERNING LAW............................................................................................................ 21 15. FORCE MAJEURE ............................................................................................................. 21 16. SEVERABILITY................................................................................................................. 21 17. DUTIES OF SIGNATORIES .............................................................................................. 22 18. BINDING UPON SUCCESSORS....................................................................................... 22 19. AUTHORITY TO ENTER AGREEMENT ........................................................................ 22 20. DRAFTING OF AGREEMENT.......................................................................................... 22 21. NON-WAIVER OF BREACH ............................................................................................ 22 22. INTEGRATION CLAUSE.................................................................................................. 23 23. AMENDMENTS OR MODIFICATIONS .......................................................................... 23 24. HEADERS IN THIS AGREEMENT .................................................................................. 23 25. SIGNATURE IN COUNTERPARTS ................................................................................. 23 26. TRANSMITTED COPIES................................................................................................... 23
iii

This Class Action Settlement Agreement (“Agreement”) is entered into by and between Cardtronics, Inc. and Cardtronics, LP (jointly “Cardtronics”), the Commonwealth of Massachusetts (“Commonwealth”), and the National Federation of the Blind (“NFB”), Adrienne Asch, Jennifer Bose, Bryan Bashin, Robert Crowley, Norma Crosby, Dwight Sayer, Terri Uttermohlen, and Raymond Wayne (the “Individual Plaintiffs”). The NFB and Individual Plaintiffs enter this Agreement individually and on behalf of a class of persons similarly situated (hereinafter referred to as the “Class” and defined below). Cardtronics, the Commonwealth, the NFB, and the Individual Plaintiffs (individually and on behalf of the Class) shall individually be referred to as a “Party” and jointly as the “Parties.”
DEFINITIONS
“After-acquired ATM” means either a Cardtronics-owned ATM or a Merchantowned ATM in which Cardtronics first obtains an interest through Cardtronics’ purchase of an ATM portfolio from a third party ATM operator or processor subsequent to the Effective Date or a Merchant-owned ATM for which Cardtronics otherwise becomes the operator or processor subsequent to the Effective Date.
“ATM” means an Automated Teller Machine (q.v.).
“Automated Teller Machine” means a self-service electronic information processing device installed in public locations for the primary purpose of conducting consumer financial transactions directly through the device. Such consumer financial transactions may include not only typical banking type transactions such as cash withdrawals from accounts, deposits to accounts, reports of account balances, transfers between accounts, and other routine banking transactions; but may also include the payment and/or purchase of goods and services through the device, such as, for example, the purchase of stamps and movie tickets, as well as the payment of utility and cellular telephone bills.
“BASC ATMs” means Cardtronics-owned ATMs that Cardtronics acquired in a transaction with BASC that do not exceed in number 177 ATMs.
“Blind” means total blindness or central vision acuity not to exceed 20/200 in the better eye, with corrective lenses, as measured by the Snellen test, or visual acuity greater than 20/200, but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle not greater than 20 degrees.
“Cardtronics-owned ATM” means an ATM that Cardtronics owns, including those ATMs that were the subject of the Partial Settlement Agreement.
“Class” means all persons who are Blind patrons of Covered ATMs.
“Class Counsel” means Daniel F. Goldstein of the law firm Brown Goldstein & Levy LLP, Baltimore MD, Christine Netski of the law firm Sugarman, Rogers, Barshak & Cohen, P.C., Boston, MA, and Timothy Fox and Amy Robertson of the law firm Fox & Robertson, Denver CO.

“Class Representatives” mean the persons and/or entities appointed as Class Representatives by the Court.

“Counsel” means: for the Commonwealth, the Attorney General of the Commonwealth of Massachusetts or an Assistant Attorney General acting as her designee; for NFB, Daniel F. Goldstein of the law firm Brown Goldstein & Levy LLP, Baltimore MD; and for Cardtronics, Douglas P. Lobel of the law firm Cooley Godward Kronish LLP, Reston VA, and Joseph I. Kociubes of the law firm Bingham McCutcheon LLP, Boston MA.

“Court” means the U.S. District Court for the District of Massachusetts, and specifically the Honorable U.S. District Judge Morris E. Lasker or his designated successor.

“Covered ATM” means any (1) Cardtronics-owned ATM, Merchant-owned ATM or BASC ATM as of the Effective Date or (2) any After-acquired ATM; provided, however if in the future Cardtronics provides ATM maintenance, armored courier, or processing services not as an ISO, but solely as a third party service provider, any ATM at which Cardtronics provides such third party services shall not be considered a Covered ATM. For the purpose of this definition, any ATM that is now or hereafter registered with any Network or sponsoring financial institution and such registration shows or reflects that Cardtronics is the ISO for that ATM, such ATM shall be considered a Covered ATM.

“Defendants” means E*TRADE and Cardtronics, the co-defendants in the Lawsuit. When used in the singular, “Defendant” means any one of the four corporate codefendants.

“DOJ Standards” means the Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, app. A.

“E*TRADE” means E*TRADE Access and E*TRADE Bank.

Lawsuit.

“E*TRADE Access” means E*TRADE Access, Inc., a co-defendant in the

“E*TRADE Bank” means E*TRADE Bank, a co-defendant in the Lawsuit.

“Extended Service Program” means an agreement between Cardtronics and a Merchant wherein Cardtronics promises to perform certain maintenance procedures on a Merchant-owned ATM.

“Final Approval” means the approval of this Agreement by a United States District Judge by signature of an order in a form substantially similar to that submitted by the Parties that, among other things, attaches this Agreement as an exhibit, retains jurisdiction for the Court for the Term of this Agreement in order to enforce this Agreement, and has become final and non-appealable.

2

“High Volume Merchants” means the owners of the smallest subset of Merchantowned ATMs without Voice guidance on the Effective Date that collectively account for 80% of all transactions at Merchant-owned ATMs for the previous calendar year.
“Individual Plaintiffs” means Adrienne Asch, Jennifer Bose, Bryan Bashin, Robert Crowley, Norma Crosby, Dwight Sayer, Terri Uttermohlen, and Raymond Wayne.
“ISO” shall mean an entity, such as Cardtronics, that is sponsored by a financial institution and is registered with one or more Networks and through such sponsorship and registration is able to facilitate Transactions at an ATM.
“Lawsuit” means the case Commonwealth of Mass. v. E*TRADE Access, Inc., No. 03-11206 (MEL) now pending in the U.S. District Court for the District of Massachusetts.
“Massachusetts state law” means any statutory, administrative, municipal or common law of the Commonwealth of Massachusetts or any governmental entity therein, including but not limited to the Massachusetts Public Accommodations Act, Mass. Gen. Laws, ch. 272, §§ 92A and 98, and the Massachusetts Anti-Discrimination Act, Mass. Gen. Laws, ch. 151B.
“Merchant” means the independent third party that owes, leases, or otherwise manages a Merchant-owned ATM.
“Merchant-owned ATM” means an ATM that Cardtronics does not own (that is, not Cardtronics-owned) and to which Cardtronics, in its capacity as an ISO, provides processing services and sometimes ancillary services such as maintenance and repair or armored services.
“Networks” shall mean any of the various electronic fund transfer networks, including without limitation Cirrus, MasterCard, Maestro, Plus, Pulse, Visa and NYCE.
“Partial Settlement Agreement” means the Partial Settlement Agreement executed June 9, 2003, among the Commonwealth, NFB, and E*TRADE, in which Cardtronics is the successor in interest to E*TRADE.
“Parties” means the Commonwealth, NFB, the Individual Plaintiffs, and Cardtronics.
“Plaintiffs” means the Commonwealth, NFB, and the Individual Plaintiffs. When used in the singular, “Plaintiff” means any one of these individuals or entities.
“Private Plaintiffs” means NFB and the Individual Plaintiffs.
“PSA” means the Partial Settlement Agreement (q.v.).
“Settlement Date” is April 9, 2007.
3

“Title III of the ADA” means Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 - 12189, and any implementing regulations including but not limited to 28 C.F.R. Part 36, including Appendix A, the DOJ Standards.
“Transaction” means a consumer financial transaction, including typical banking type transactions such as cash withdrawals from accounts (without regard to whether such activity was denied because of the lack of funds), deposits to accounts, report of account balances, transfers between accounts and other routine banking transactions, and the payment and/or purchase of goods and services, such as the purchase of stamps and movie tickets and the payment of utility and cellular telephone bills.
“Upgradeable ATM” means an ATM for which there is a commercially available kit to make that particular make and model ATM capable of Voice guidance.
“Voice-guided” and “Voice guidance,” as to an ATM, means dynamic computersynthesized, digitized human, or recorded audible instructions provided to a Blind patron through a standard headphone jack located on the face of an ATM that has the following features: (1) speech output; (2) tactilely discernible controls; (3) ensures the privacy of the audible output of information as long as the customer does not unplug the earphone mid-Transaction; (4) provides the same degree of privacy of user input as is provided to sighted users; (5) allows the user to review and correct entries without canceling the entire Transaction to the same extent that sighted users of the ATM can so review and correct entries for the particular Transaction; (6) provides audible Transaction prompts to enable completion of each step in the particular Transaction; (7) provides audible operating instructions and orientation to machine layout; (8) allows the user to interrupt audible instructions; (9) repeats audible instructions; and (10) provides audible verifications for all inputs, except that entry of the personal identification number need not be verified audibly with numbers. ATM functions do not include advertising posted on or near the ATM or that might be displayed on the ATM screen. Voice guidance shall be provided in English and may, at Cardtronics’ sole discretion, be provided in one or more other languages. Voice guidance does not include provision of the headphone to be plugged into the ATM’s jack, which headphone shall be the sole responsibility of the customer. An ATM is deemed to have Voice guidance if all of the necessary hardware and software have been built into or installed on the ATM and the Voice guidance successfully operates, subject to Subsection 4.4.3 and Section 15.
“Wholesale Cost” means, as to an ATM, the net price paid by Cardtronics to a manufacturer or distributor for the purchase and delivery of an ATM to a merchant.
PREAMBLE
WHEREAS, Cardtronics operates a nationwide fleet of ATMs consisting of Cardtronics-owned ATMs and Merchant-owned ATMs;
WHEREAS, the Parties seek to secure equal access to ATMs by Blind patrons through Voice guidance on terms that are reasonable and fair;
4

WHEREAS, on or about June 9, 2003, the Parties agreed to the Partial Settlement Agreement that provides for the implementation of Voice guidance on some Cardtronics-owned ATMs;
WHEREAS, the Parties are involved in the Lawsuit that concerns the extent to which the ADA and/or Massachusetts state laws may require Voice guidance on ATMs, and in the lawsuit, the Plaintiffs seek both injunctive relief as well as damages under Massachusetts state laws;
WHEREAS, the Parties desire to resolve amicably all matters between them, including, but not limited to, any matters arising out of or related to the Lawsuit, and to avoid the further expense and inconvenience of the Lawsuit;
WHEREAS, the terms and conditions of this Agreement have been agreed to after and as a result of arms-length negotiations between and among the Parties, in which the Parties consulted counsel of their choice;
WHEREAS, the Parties agree that this Agreement involves the mutual exchange of promises and obligations that are in exchange for and in settlement of claims and liabilities of potentially substantially greater values, where such claims and liabilities have been discounted by the Parties in their judgment as to the risk of success or failure in judicial proceedings and the time-value of such judgments should they ever be rendered;
WHEREAS, Class Counsel conducted an extensive investigation of facts, circumstances, and law underlying the issues raised in the Lawsuit and based on the facts and applicable law, and upon consideration of the benefits this Agreement affords the Class Representatives and the Class, Class Counsel considers it to be in the best interests of the Class to enter into this Agreement;
THEREFORE, in consideration of mutual exchange of promises, covenants and releases herein, the receipt and sufficiency of which the Parties acknowledge, the Parties agree to the following:
MUTUAL PROMISES
1. EFFECTIVE DATE
Section 2 of this Agreement shall be effective immediately the last date any of the signatories, set forth at the end of this Agreement, execute this Agreement. The remaining provisions of this Agreement shall be effective immediately upon Final Approval. The Agreement shall continue in effect until terminated in accordance with the provisions herein.
5

2. PROCEDURES FOR CLASS-WIDE SETTLEMENT

2.1. Amendment of Complaint

Cardtronics agrees to withdraw its opposition to Plaintiffs’ motion for leave to file the Fourth Amended Complaint.

2.2. Certification of Class

The Parties agree to request that the Court certify a class pursuant to Fed. R. Civ. P. 23(b)(2) for the purposes of settling the Lawsuit on a class-wide basis, and further agree that the Court should appoint NFB, Adrienne Asch, Jennifer Bose, Bryan Bashin, Robert Crowley, Terri Uttermohlen, Norma Crosby, Dwight Sayer, and Raymond Wayne as Class Representatives.

2.3. Other Pending Motions

Except as provided in subsections 2.1 and 2.2, the Parties agree to request the Court to stay resolution of all pending motions and, upon Final Approval, to dismiss all such motions as moot.

2.4. Preliminary Approval

As a condition of settlement, the Parties agree that Plaintiffs shall file an unopposed motion with the Court for entry of a Preliminary Approval Order that:

a. Finds that this Agreement has been negotiated in an arm’s-length manner and that the Agreement is fair, reasonable and adequate;

only;

b. Provides that the Class will be certified for the purposes of settlement

c. Holds that the manner of notice described herein is the only notice required, and that such notice satisfies the requirements of due process and Fed. R. Civ. P. 23;

d. Holds that the procedures for Class Members to oppose this Agreement are fair, reasonable and adequate; and

e. Schedules a hearing for Final Approval of this Agreement.

2.5. Notice by Publication

Because class certification is sought solely pursuant to Fed. R. Civ. P. 23(b)(2), notice to class members of the certification is not required and class members may not opt out. See Fed. R. Civ. P. 23(b)(2); Newberg on Class Actions, § 8.13. The parties therefore agree that notice need not be given of the certification of the class. Rule 23(e) provides that notice of the

6

proposed dismissal or compromise of a class action shall be given to all class members in such manner as the court directs. The parties agree to cooperate in the drafting of a notice (“Notice”) that satisfies the requirements of Rule 23(e). The parties further agree that notice as required by Rule 23(e) can be achieved in this case by Cardtronics (1) making the Notice and this Agreement available on its website; (2) mailing a copy of the Notice to the list of organizations attached hereto as Exhibit A; and (3) publishing the Notice as a one-half page advertisement in the Braille Monitor and the Braille Forum and as one-eighth page advertisements in the classified ad sections of The New York Times, Los Angeles Times, and USA Today. Cardtronics shall undertake appropriate notice as described herein and shall bear the cost of doing so.
2.6. Objections to Agreement
Class members who wish to object to approval of this Agreement must provide notice of and explanation of their objection in writing to the Court, with copies to all Counsel, no later than forty-five (45) days after publication of the Notice described herein. Objections received by the Court after this deadline shall be deemed untimely and shall be disregarded. Only those Class members who file timely written objections shall have the right, and only if they expressly seek it in their objection, to present objections orally at the Final Approval Hearing. The parties shall respond to any objections by a date no later than fifteen (15) days prior to the Final Approval Hearing.
2.7. Final Approval Hearing and Final Judgment
The Parties shall petition the Court to hold a Final Approval Hearing and enter a Judgment on a date not less than seventy-five (75) days after publication of the Notice described herein. No later than ten (10) days before the Final Approval Hearing, the Parties shall furnish the Court a proposed Final Judgment requesting, on behalf of the Parties, entry of the Final Judgment in this Lawsuit. The proposed Final Judgment shall:
a. Find that the Notice published to the Class satisfies the requirements of due process and Fed. R. Civ. P. 23;
b. Find that this Agreement is a fair, reasonable and adequate settlement of all of the claims of the Class against the Defendants, reject and overrule any objection to this Agreement, find that each Class member shall be bound by this Agreement including its release, and conclude that this Agreement should be and is approved;
c. Dismiss the Lawsuit on the merits and with prejudice as to all claims in the Lawsuit against all of the Defendants;
d. Retain jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation and enforcement of this Agreement; and
e. Attach and incorporate by reference the terms of this Agreement.
7

2.8. Right to Withdraw from Settlement
In the event any court disapproves of or sets aside this Agreement or any material part hereof for any reason, including a refusal to certify the Class, or a refusal because Notice is deemed insufficient, or holds that it will not enter or give effect to the Final Judgment in substantially the same form described herein, or holds that the entry of the Final Judgment or any material part thereof should be overturned or modified in any material way, then:
a. The Parties shall first meet and confer to attempt to address any shortcomings in the Agreement identified by the court and, if it is possible to reach agreement on terms that accomplish this end, jointly request leave to resubmit the revised agreement for approval substantially as set forth in Subsection 2.4.
b. If the Parties are unable to reach agreement as contemplated in Subsection 2.8.a, they agree jointly to appeal such ruling to the United States Court of Appeals for the First Circuit.
c. If, following such appeal, the Final Judgment or its equivalent in all material respects is not in effect after the termination of all proceedings arising out of such appeal, this Agreement shall become null and void; the Lawsuit may continue; and any and all orders entered pursuant to this Agreement shall be vacated and the Lawsuit shall return to its status prior to the Settlement Date.
2.9. Prior Court Orders
The Parties shall not request the Court to vacate or withdraw any orders entered by the Court in the course of this litigation.
2.10 Best Efforts
The Parties shall cooperate fully with each other, and shall use their best efforts to obtain Court approval of this Agreement and all of its terms and to defend this Agreement from any legal challenge, whether by appeal or collateral attack.
3. VOICE GUIDANCE IMPLEMENTATION
3.1. Cardtronics-Owned ATMs
By December 31, 2007, all Cardtronics-owned ATMs then currently in service on that date shall be Voice-guided, except (1) 1644 Cardtronics-owned Wincor ATMs, deployed in Target stores as of the Settlement Date, need not have audible verification of all inputs to qualify as Voice-guided hereunder, and (2) by June 30, 2008, all BASC ATMs then currently in service on that date shall be Voice-guided. Subject only to Subsection 3.6 with respect to After-acquired ATMs, every Cardtronics-owned ATM installed after the Settlement Date shall, upon installation, be Voice-guided.
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3.2. Merchant-Owned ATMs
3.2.1. As of the Settlement Date, Cardtronics shall sell or otherwise make available to merchants or other third parties only ATMs that are Voice-guided.
3.2.2. With respect to High Volume Merchants, within ninety (90) days of the Effective Date, Cardtronics shall initiate a marketing plan designed to maximize the availability of Voice guidance on High Volume Merchant-owned ATMs. As part of this plan, Cardtronics shall encourage and incentivize High Volume Merchants to execute a Cardtronics’ standard ATM Processing Agreement. Upon each High Volume Merchant’s execution of such ATM Processing Agreement, Cardtronics shall:
a. Upgrade with Voice guidance, at no cost to a High Volume Merchant, any High Volume Merchant-owned Upgradeable ATM; or
b. If the High Volume Merchant’s ATM is not upgradeable, offer to sell to the High Volume Merchant a Voice-guided ATM at Cardtronics’ Wholesale Cost.
Because the ATM market is highly competitive and High Volume Merchants have many options, Commonwealth and NFB recognize that Cardtronics cannot predict the degree of success of its marketing plan and therefore Cardtronics does not represent or warrant any prediction or estimate as to the degree of success thereof.
3.3. July 1, 2010 Deadline
3.3.1. Without regard for the success of the marketing plan to High Volume Merchants, by July 1, 2010, at least ninety percent (90%) of all Transactions at Covered ATMs shall occur on ATMs that are Voice-guided or otherwise accessible to Blind people as provided in Subsection 5.1. Furthermore, by July 1, 2010, a at least ninety percent (90%) of all Transactions occurring within the borders of Massachusetts at then-operating ATMs (including both Cardtronics-owned ATMs and Merchant-owned ATMs) shall occur on ATMs that are Voice-guided or otherwise accessible to Blind people as provided in Subsection 5.1.
3.3.2. On or after July 1, 2010, Cardtronics shall not execute any new contract or renew any existing contract with any merchant unless that merchant’s ATMs are Voice-guided or otherwise accessible to Blind people as provided in Subsection 5.1.
3.4. New Technologies
If any new technology, other than Voice guidance, becomes commercially available that is capable of making the instructions and all information for use at ATMs accessible to and independently usable by Blind patrons, Cardtronics may use that new technology in lieu of Voice guidance. Before using any new technology in lieu of Voiceguidance, Cardtronics shall obtain NFB’s one-time prior written consent (effective for all future uses of the new technology), in addition to that of the Commonwealth to the extent Cardtronics
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contemplates any impact on Massachusetts ATMs, which consent shall not be unreasonably withheld.

3.5 Termination of Partial Settlement Agreement

The Parties agree that the PSA is terminated in its entirety on the entry of Final Judgment.

3.6 After-Acquired ATMs

follows:

After-acquired ATMs shall be included in the requirements of this Section as

a. Within six months after the date on which Cardtronics first provides processing services to After-acquired Merchant-owned ATMs, it shall identify which such ATMs are owned by High-Volume Merchants and shall make the applicable offer required by subsection 3.2.2.

b. After-acquired Cardtronics-owned ATMs must be Voice-guided within twenty-four (24) months from the date Cardtronics obtains an interest.

c. After-acquired ATMs (Cardtronics-owned and Merchant-owned) acquired prior to January 1, 2009 count towards Cardtronics’ compliance with the July 1, 2010, deadline set forth in subsection 3.3.

3.7 Advanced Functionality

If during the effectiveness of this Agreement or thereafter Cardtronics provides one or more new types of Transaction to sighted patrons at Cardtronics-owned ATMs and/or Merchant-owned ATMs that were not available at those particular ATMs as of the Effective Date, Cardtronics shall provide these same functions to Blind patrons at those ATMs within ninety (90) days, unless Cardtronics advises Counsel in writing that making the function accessible is not technically feasible without causing an undue economic burden or delay. In that event, Cardtronics shall notify Counsel of the particulars of the obstacles that prevent the provision of accessible new functions, and consult with Class Counsel, the Commonwealth and NFB with respect to possible alternatives. The Parties agree to work in good faith pursuant to the terms of the Dispute Resolution provision of this Agreement to reach an agreement as to whether new functions can be provided without undue economic burden or delay. Cardtronics shall encourage vendors to support such new functions through Voice guidance and, once the obstacles are eliminated, Cardtronics shall make such new functions accessible with commercially reasonable dispatch. If and when such new functions are added, the act of accessing any new function at the ATM shall be considered a Transaction. Advanced functionality shall not be deemed to include advertising functions, such as advertisements on the ATM screen that are not part of the usage instructions.

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3.8 Divested ATMs
Other than in connection with a sale by Cardtronics of all or substantially all of its ATMs, which transaction would be governed by paragraph 18 of the Agreement, if Cardtronics sells any Cardtronics-owned ATMs, or its interests in any Merchant-owned ATMs, to third parties, neither Cardtronics nor the new owner shall have any obligations under this Agreement with respect to the ATMs that are subject to the transaction.
3.9 Deadline
The Parties and the Court recognize that from time to time unforeseen events, such as exigent business circumstances, labor disputes, natural disasters, personnel issues, and negotiations with third parties, cause delays in the accomplishment of objectives no matter how well intentioned and diligent the Parties may be. Accordingly, with regard to the provisions of this Agreement that require that certain acts be taken within specified periods, the Parties understand and agree that Court approval shall not be required for reasonable extensions of deadlines. In the event that any Party determines that an action required by this Agreement cannot be taken within the specified time period, that Party shall promptly notify the other Parties that it anticipates a delay, the reasons for the delay and a proposed alternative deadline. The Parties shall endeavor to cooperate in reasonably rescheduling such deadlines. However, if the other Party does not agree to the proposed delay, the Parties shall submit the matter to Dispute Resolution.
4. MISCELLANEOUS IMPLEMENTATION REQUIREMENTS
4.1 Web-Based List
Within thirty (30) days of the Effective Date, Cardtronics shall maintain on its Internet-based ATM locator an easily-understood symbol that is accessible to Blind people that will identify whether a particular ATM is Voice-guided.
4.2 Signage
Each Voice-guided Cardtronics-owned ATM and Merchant-owned ATM shall have a sign that identifies to Blind persons that the ATM is a Voice-guided ATM. The signage attached hereto as Exhibit B, or one materially similar, shall be deemed to be fully compliant with these requirements.
4.3 Reserved.
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4.4 Notification, Verification and Monitoring
4.4.1 Reporting
In the form of Excel spreadsheets, which can be electronically transmitted, Cardtronics shall provide the following reports to Class Counsel both on a national and Massachusetts basis and that account for After-acquired ATMs in accordance with this Agreement:
4.4.1.1 Fifteen (15) days before the hearing on Final Approval, (1) a list of the Covered ATMs, identifying whether each is Cardtronics-owned, Merchant-owned or a BASC ATM, providing its location and indicating whether it is Voice-guided and (2) a list of the High Volume Merchants, identifying which ATMs are Upgradeable and reflecting the percentage of transactions each ATM accounted for during the previous calendar year. If any of the information required by the preceding sentence has changed by the Effective Date, then fifteen (15) days after the Effective Date, Cardtronics shall update the report to reflect the accurate information regarding the Covered ATMs as of the Effective Date.
4.4.1.2 Forty-five (45) days after the end of the second calendar quarter following the Effective Date, and each quarter thereafter through July 1, 2010, (1) a list of High Volume Merchants to which Cardtronics has offered the options set forth in 3.2.2, providing the location of each ATM and whether the ATM is Voice-guided; and (2) a list of all Covered ATMs by location, identifying whether each is Voice-guided and reflecting for each ATM and cumulatively, the percentages of all Transactions at Covered ATMs that have occurred on Voiceguided ATMs during the previous quarter.
4.4.1.3 Forty-five (45) days after the end of any calendar year, a list of the High Volume Merchants based on the previous calendar year’s Transactions, providing the location of each ATM and identifying which are Voice-guided.
4.4.1.4 By January 31, 2008, a list of all Cardtronics-owned ATMs, other than BASC ATMs, providing the location of each ATM and identifying which are Voiceguided.
4.4.1.5 By December 31, 2008, a list of BASC ATMs identifying which were Cardtronics-owned as of June 30, 2008 and the date on which each such ATM was made Voice-guided.
4.4.1.6 By August 15, 2010 and each quarter thereafter until the earlier of (1) the expiration of this Agreement or (2) the third consecutive quarter in which 95% of all Transactions are performed on Covered Voice-guided ATMs, a list of all Covered ATMs, whether each is Voice-guided and the percentage of transactions done on Voice-guided machines in the previous quarter. If 95% of all Transactions are performed on Covered Voice -guided ATMs for three consecutive quarters, then the list shall thereafter be provided only annually. (Each such report shall be issued within forty-five (45) days following the applicable quarter and/or year.) For each ATM lacking Voice guidance, the list shall state whether the ATM is After-acquired and the date it became After-acquired. For each After-acquired ATM lacking
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Voice guidance, the list shall state, in the case of Cardtronics-owned ATMs, the estimated date Cardtronics shall install a Voice-guided ATM and, in the case of Merchant-owned ATMs, the date on which the contract will either renew or expire. At such time as 100% of all Transactions in a calendar quarter are executed on Voice-guided ATMs, Cardtronics shall only report thereafter (1) a list of After-acquired ATMs without Voice guidance, the date of acquisition and, if Cardtronics-owned, the date Cardtronics shall install a Voice-guided ATM and, if Merchantowned, the date on which the contract will either renew or expire and (2) any After-acquired ATMs previously reported as without Voice guidance that have since become Voice-guided.
4.4.2. Verification.
4.4.2.1. Cardtronics shall, with each Report set forth in Subsection 4.4.1 verify to Class Counsel and Counsel for the Commonwealth that the results of the Report comply with the requirements of Section 3 of the Agreement. Cardtronics shall inspect a sample of its portfolio of ATMs from time to time to verify continuing compliance including with Section 4.4.5 of the Agreement. Cardtronics shall use either its own technicians or service vendors to report on the operating condition of Voice guidance on a randomly selected group of ATMs. The group of ATMs shall change with each report. Cardtronics shall select the appropriate number of ATMs to be included in the sample analysis each quarter so that the quarterly expense of the monitoring effort will be no greater than $2,500. At the time any ATM is installed as contemplated by Subsections 3.1, 3.2.1 or 3.2.2(b) or upgraded as contemplated by Subsection 3.2.2(a), the individual who performs the installation or upgrade shall test the ATM using the form attached hereto as Exhibit C, and shall sign and date the form. Cardtronics shall report the results of its monitoring efforts to Class Counsel and Counsel for the Commonwealth with each Report and attach copies of forms received during that reporting period from its installers.
4.4.2.2 Upon request of Class or Commonwealth Counsel, Cardtronics shall (1) produce for inspection and copying all documentation which may be pertinent to a determination by the Plaintiffs of whether Cardtronics has complied with the terms of this Agreement, and (2) cooperate in providing the Plaintiffs with reasonable access to Cardtronics employees with knowledge that may assist the Plaintiffs in determining whether Cardtronics has complied with the terms of this Agreement.
4.4.3 Maintenance and Responding to Consumer Calls
4.4.3.1 ATMs required to be Voice-guided by this Agreement shall remain Voice-guided at all times during the term of this Agreement, provided that isolated or temporary interruptions in service due to maintenance or repairs or isolated instances of mechanical failure shall not be a violation of this Agreement, provided further that allowing Voice guidance to remain out of service on an ATM beyond a reasonable period of time and/or repeated mechanical failure due to improper or inadequate maintenance shall constitute a violation of this Agreement. Nothing in this Agreement shall be construed to impose any maintenance or repair obligations on Cardtronics for a Merchant-owned ATM if the Merchant does not have an Extended Service Program contract with Cardtronics.
4.4.3.2 Upon receipt of any call or report that a Cardtronics-owned ATM, which has been listed by Cardtronics as Voice-guided, is not properly operating with
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respect to Voice guidance, Cardtronics shall designate a service technician to repair same within seventy-two (72) hours of receipt of such request. The same standard shall apply to any Merchant-owned ATM if the Merchant has purchased an Extended Service Program from Cardtronics. Transactions at an inoperative or malfunctioning ATM shall not count towards measurement of the 90% threshold (set forth in Section 3.3 above).
4.4.4 Monitoring
4.4.4.1 The Parties agree that NFB shall act as the “Monitor”. For each ATM tested, Cardtronics shall pay NFB a flat fee of $200, within thirty (30) days after presentation of an invoice. Each invoice shall identify the ATM(s) tested and the date(s) of the test(s), and each invoice shall be uniquely numbered so as to allow tracking of invoices. Notwithstanding anything to the contrary in this Section 4.4.4 or in any other provision of this Agreement, Cardtronics shall be obligated to pay no more than $30,000 for any and all NFB ATM tests or inspections during the first year of monitoring, no more than $20,000 for the second year of monitoring and no more than $7500 for the third and each remaining year of the Agreement. Each invoice should be sent to: Cardtronics, 3110 Hayes Road, Suite 300, Houston, Texas Attn: KC Foreman.
4.4.4.2 To verify compliance, within 180 days of receipt of the Report listed in Subsection 4.4.1.1, NFB shall, both on a Massachusetts and on a national basis test operating ATMs equal to one percent of the ATMs listed on that report as Voice-guided to determine whether each is, in fact, Voice-guided. Within 180 days of receipt of any other Report listed in Subsection 4.4.1, the Monitor will test the greater of 28 operating ATMs or operating ATMs equal to one percent of the ATMs that that are newly identified as Voice-guided.
4.4.4.3 Within thirty (30) days of completing the tests on any Report the Monitor will notify Cardtronics, Counsel for the Commonwealth and Class Counsel of the results of the tests.
4.4.4.4. Within thirty (30) days of receipt of the notice from the Monitor, Cardtronics will bring into compliance with this Agreement any ATM that the Monitor reports to be out of compliance and will so notify Class Counsel, Counsel for the Commonwealth, and the Monitor. Nothing in this paragraph 4.4.4.4 shall preclude Cardtronics from removing or ‘delisting’ an ATM previously reported as being ‘Voice-guided’, so long as such correction does not cause Cardtronics to be in noncompliance with Section 3.
4.4.5 Training
Cardtronics shall train its employees who have regular contact with customers regarding customer use and operation of Voice-guided ATMs in accordance with its normal training procedures.
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5. CHANGES IN LAWS GOVERNING ACCESSIBILITY OF ATMS
5.1 New Laws
The Parties acknowledge that after the Effective Date, new statutes or regulations may establish standards for accessibility of ATM services to Blind persons that might be different from Cardtronics’ obligations under this Agreement. The Parties agree that if the new law or regulation directly addresses an obligation imposed upon Cardtronics by this Agreement, the new law or regulation shall control; provided, however, that to the extent any new regulation creates a safe harbor for non-Voice-guided ATMs or establishes a schedule for Voice guidance slower than that required by this Agreement, this Agreement shall control and, in no event, shall the level of access to and/or independent use by Blind persons be lower than that required by this Agreement.
5.2 Notice of Modification of Agreement
If any Party contends that there is a change in any applicable statute or regulation that directly addresses Cardtronics’ obligations under this Agreement, that Party shall notify the other Parties in writing with a statement describing (a) the new statute or regulation; (b) the effect of the new statute or regulation on Cardtronics’ obligations under this Agreement; and (c) the necessary modifications to this Agreement. The proposed modifications shall become effective thirty (30) days after such notification, unless another Party objects in writing to the proposed modifications. In the event of disagreement between the Parties over the appropriate modifications to this Agreement as contemplated by this section, the Parties shall meet and confer in good faith to resolve the disagreement. Failure to reach an agreement shall be considered a dispute to be resolved pursuant to Section 13 of this Agreement.
6. NO ADMISSION OF LIABILITY
6.1 Purpose of Agreement Is To Avoid Further Litigation
This Agreement constitutes a compromise of disputed claims between Plaintiffs and Defendants, and the Parties enter this Agreement solely to terminate all controversies currently pending between them and to avoid the expense, inconvenience and further litigation, without admission of any liability whatsoever by Cardtronics.
6.2 No Admissions
In entering into this Agreement, Cardtronics does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the ADA, any regulations or guidelines promulgated pursuant to the ADA, Massachusetts state laws, or any other applicable laws, regulations or legal requirements in regard to Cardtronics-owned ATMs or Merchant-owned ATMs. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Cardtronics of any such violations or failures to comply with any applicable law. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall
15

be construed as an admission or concession by Commonwealth or NFB with respect the requirements of any applicable law or Cardtronics’ compliance with such applicable law in regard to Cardtronics-owned ATMs or Merchant-owned ATMs.
6.3 No Use of Agreement
The Parties agree that this Agreement shall not be used by NFB or the Commonwealth in any legal, regulatory, equity or administrative proceeding in which Cardtronics is a party, as evidence of any stipulation or agreement by Cardtronics as to the meaning or requirements of Title III of the ADA.
6.4 No Effect of Court Approval or Rejection
The Parties agree that Court approval of this Agreement shall not be deemed to constitute any finding, conclusion, or holding as to the meaning of Title III of the ADA or of Massachusetts state law. If the Court does not approve this Agreement, or if any of the Parties withdraw from this Agreement at any time to the extent permitted herein, this Agreement and any negotiations or communications related thereto shall not be interpreted as any admission by any Party of any fact, legal principle, or conclusion. If, for any reason, settlement is not effectuated or Final Judgment is not entered pursuant to this Agreement, no evidence of this Agreement or of the Preliminary Approval Order or Final Judgment, as proposed or as actually entered by the Court, shall be admissible in the Lawsuit or in any other action in which Cardtronics is a party.
7. RELEASE
7.1 Scope of Release
7.1.1. “Released Claims” means any and all demands, claims, actions, causes of actions, suits, debts, covenants, contracts, agreements, promises, judgments whatsoever, whether or not known or unknown and whether or not such claims are legal, equitable, administrative or of any other nature, for injunctive or declaratory relief, that the Plaintiffs may have had, or may have as of the Effective Date, against Cardtronics concerning the accessibility of Cardtronicsowned ATMs and Merchant-owned ATMs to the Blind. Released claims include, but are not limited to and by way of example only, claims under Title III of the ADA, the Massachusetts Public Accommodations Act and the Massachusetts Equal Rights Act. Released claims include any claims arising under or related to the PSA.
7.1.2. Released Claims also include any claims of the NFB or Individual Plaintiffs for monetary damages of any kind, including punitive or exemplary damages.
7.1.3. Released Claims do not include any claims of Class Members other than the Individual Plaintiffs for monetary damages of any kind, including punitive or exemplary damages.
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7.1.4. Released Claims also include any claims for injunctive or declaratory relief concerning the accessibility of Cardtronics-owned ATMs and Merchant-owned ATMs to the Blind arising under any state or local statutory, administrative, regulatory or code provisions that either (a) directly incorporate Title III of the Americans with Disabilities Act or (b) set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act.
7.1.5. Except as otherwise expressly provided herein, the Released Claims also include any and all claims for attorneys’ fees, expenses, costs or disbursements incurred by Counsel and any other counsel representing Plaintiffs or Class members, or by Plaintiffs or Class members, or any of them, in connection with or related in any manner to the Lawsuit, this Agreement, or the prosecution of motions to obtain entry of Preliminary Approval and/or Final Judgment incurred prior to and including the date of Final Approval.
7.1.6. Released Claims also do not include an action for breach of this Agreement, which shall be the sole relief and remedy in the event any Plaintiff or Class member claims Cardtronics-owned or Merchant-owned ATMs are not accessible to Blind patrons.
7.2 Release of Claims
Plaintiffs and Class members hereby agree that upon entry of a Final Judgment they shall forever release, remise, acquit, satisfy, and discharge each Defendant (and any of each Defendant’s respective parents, subsidiaries, affiliates, partners and its officers, directors, attorneys, employees, agents, successors, and assigns) from any and all Released Claims.
7.3 Covenant Not To Sue
Plaintiffs and the Class members hereby agree that they, acting individually or together, shall not seek to institute, maintain, prosecute, join, support, sue or assert in any action or proceeding, whether judicial or administrative, any of the Released Claims against another Party.
7.4 Subsequent Discovery
In connection with the release and covenant not to sue, Plaintiffs and the Class members acknowledge that they are aware that they may hereafter discover facts, actions, claims and causes of action presently unknown or unsuspected, or facts in addition to or different from those which they now know or believe to be true with respect to the Released Claims. Nevertheless, it is the purpose of this Agreement and the intention of the Plaintiffs and Class members to settle and release such matters and all actions, causes, claims, and causes of action that are Released Claims.
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7.5 Failure to Receive Notice
The failure of any Class member to receive actual notice or any other document describing this Agreement shall not be a basis for invalidating, waiving, abrogating, limiting, ignoring, or mitigating the effects of this Agreement.
7.6 Survival of Consumer Contracts
Nothing in this Agreement shall relieve any Plaintiff or Class member from his, her or its obligation to perform fully any consumer contract between him, her or it and any of the Defendants. All agreements for the purchase of Defendants’ services heretofore made shall remain in effect, and each Defendant shall be entitled to enforce such agreements in accordance with their terms.
7.7 No Effect On Obligations Imposed In This Agreement
Notwithstanding anything stated to the contrary in this Agreement, all of the obligations and rights of the Parties under this Agreement shall expressly survive the release and covenant not to sue.
8. THIRD PARTY BENEFICIARIES
8.1 Acknowledge Beneficiaries
This Agreement, and the settlement contemplated therein, shall inure to the benefit of the Parties as well as each Defendant’s respective parents, subsidiaries, affiliates, partners and its officers, directors, attorneys, employees, agents, successors, and assigns, all of whom shall be considered third-party beneficiaries of this Agreement. This Agreement also inures to the benefit of the Class members, each of whom shall be considered a third-party beneficiary.
8.2 No Other Beneficiaries
Except as expressly identified in the foregoing subsection, this Agreement shall not be construed to create rights in, or to grant remedies to, or to delegate or create any duty, obligation or undertaking established herein to any third party as a beneficiary of this Agreement.
9. ATTORNEYS FEES AND CONTRIBUTION TO THE COMMONWEALTH
9.1 Contribution to the Commonwealth
Cardtronics shall make a contribution of $100,000.00 to the Attorney General’s local consumer aid fund. The amount shall be paid by check within ten (10) days of the Effective Date. Payment shall be delivered to Patricia Correa, Massachusetts Attorney General’s Office, 100 Cambridge St., 11th floor, Boston, MA 02108.
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9.2 Attorneys’ Fees and Costs
Cardtronics shall pay NFB a total amount of $900,000.00 as reimbursement of its litigation costs, including attorney’s fees, incurred in connection with the Lawsuit up to and including the date of Final Approval. The amount shall be paid by check or electronics fund transfer in two equal installments, with the first installment within ten (10) days of the Effective Date and the second installment 180 days thereafter. Payment shall be made to: National Federation of the Blind, 1800 Johnson Street, Baltimore, Maryland 21230, attention Marc Maurer.
10. NOTICE TO PARTIES
Any notice or communication required or permitted to be given to any one of the Parties shall be provided by electronic mail, by facsimile transmission, or by certified U.S. mail, addressed as follows:
To Commonwealth:
Office of the Massachusetts Attorney General Attn: Patricia Correa Assistant Attorney General 100 Cambridge Street, 11th floor Boston, MA 02108 Fax No.: (617) 727-5762 Email: patty.Correa@ago.state.ma.us
To NFB:
Brown, Goldstein & Levy LLP Attn: Daniel F. Goldstein, Esq. 120 E. Baltimore Street Suite 1700 Baltimore, MD 21202 Fax No.: (410) 385-0869 Email: dfg@browngold.com
To Cardtronics:
Michael E. Keller General Counsel Cardtronics Inc. 3110 Hayes Road, Suite 300 Houston, Texas 77082 USA Fax No.: (281) 892-0102 Email: mkeller@cardtronics.com
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Douglas P. Lobel Cooley Godward Kronish LLP One Freedom Square | Reston Town Center 11951 Freedom Drive Reston, VA 20190 Fax No.: (703) 456-8100 Email: dlobel@cooley.com
A party may amend the person to whom notices are to be made pursuant to this Section by written notice to all other parties.
11. DURATION AND TERMINATION
This Agreement shall remain in effect, in whole or in part, for eight years from the Effective Date of this Agreement, except that the Parties may agree in writing to extend the Agreement further or the Court may so order in connection with Subsection 13.3. Notwithstanding any expiration of this Agreement, Sections 6, 7 and 13 shall continue to remain in effect in perpetuity.
12. FURTHER ACTS
Each of the Parties, upon the request of any of the other Parties hereto, agrees to perform such further acts and to execute and deliver such other documents as are reasonably necessary to carry out the provisions of this Agreement.
13. DISPUTE RESOLUTION
Any dispute between the Parties arising out of, or related to, this Agreement, once effective, shall be subject to the following dispute resolution process:
13.1 Notification of Non-Compliance and Opportunity to Cure or Address
If at any time a Party believes that another Party has not complied with any provision of this Agreement, the complaining Party shall deliver prompt written notice to the other Party, including: (a) a reference to the specific provisions of the Agreement that are the subject of the notice; (b) a statement of the issues; (c) a statement of the remedial action sought by the initiating Party; and (d) a brief statement of the specific facts, circumstances and any other arguments supporting the position of the initiating Party. The Party receiving this notice shall respond in writing to the notice within twenty (20) business days of its receipt. The response shall describe the steps that the receiving Party will take, if any, to cure the noncompliance.
13.2 Meet and Confer
Within twenty (20) business days after receipt of the response to the notice or as soon as practicable, the Parties shall meet and confer to attempt to reach an agreement regarding
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the matters stated in the notice. If the Parties are able to agree upon the matters stated in the notice, they shall work together in good faith to resolve the matters stated in the notice and agree upon an appropriate modification of the Agreements.
13.3 Right to File Claim
If the Parties cannot resolve the matters stated in the notice within forty-five (45) days after they meet and confer, the Party who served notice may bring suit seeking damages, injunctive relief and/or specific performance of the Agreement in the United States District Court for the District of Massachusetts. For any dispute between NFB and Cardtronics arising under this Agreement, Court shall award reasonable attorneys’ fees and costs in accordance with the prevailing party standards under the ADA. Cardtronics expressly consents to the entry of an injunction for specific performance of this Agreement if the court concludes Cardtronics breached its obligations under this Agreement.
13.4 Modification of Meet and Confer Deadlines
Any Party may agree to extend any of the deadlines for an opposing Party set forth in this section without the necessity of modifying this Agreement.
14. GOVERNING LAW
The terms and conditions of this Agreement shall be governed, interpreted and construed, and all disputes arising hereunder determined, in accordance with the laws of the State of Massachusetts, without regard to its choice of law rules.
15. FORCE MAJEURE
The performance of Cardtronics under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, malfunctioning or unavailability of parts, equipment or materials through normal supply sources, allegations of infringement of intellectual property or the failure of any utility to supply its services for reasons beyond the reasonable control of Cardtronics. If Cardtronics seeks to invoke this Section for more than ten (10) ATMs at any one time, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action(s) that could not be performed and the specific reason(s) for the nonperformance. Pursuant to Section 13 of this Agreement, the Parties shall thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action.
16. SEVERABILITY
If one or more provisions of this Agreement are at any time found to be invalid by a court, tribunal or other forum of competent jurisdiction, or otherwise rendered unenforceable, such provision or provisions shall be severable from this Agreement so that the validity or
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enforceability of the remaining provisions of this Agreement, shall not be affected thereby, unless the provision or provisions are essential and material covenants of this Agreement.
17. DUTIES OF SIGNATORIES
By signing this Settlement Agreement, each Signatory, on behalf of himself or herself or on behalf of the Party whom he or she represents, confirms and states that he or she has carefully read the Agreement and that he or she has obtained the advice of independent legal counsel in connection with the negotiation of this Agreement, and that he or she knows the contents of the Agreement. Each signatory further represents that he or she has been duly authorized on behalf of the Party that he or she represents to execute this Agreement on behalf of such Party and intends to commit, and hereby commits, the Party to be fully bound to this Agreement.
18. BINDING UPON SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective parents, subsidiaries, heirs, executors, personal representatives, affiliates, agents and general and limited partners, and their respective successors and assigns. Counsel for the Parties shall be notified in writing within thirty (30) days of the existence, name, address and telephone number of any successors and assigns.
19. AUTHORITY TO ENTER AGREEMENT
Each Party represents and warrants to the other Parties that it has the full power and authority to enter into this Agreement and any of the documents to be executed by it pursuant to this Agreement, that it has agreed to the terms of this Agreement and such other documents to be executed by it pursuant to this Agreement, and that this Agreement and such other documents have been duly authorized, executed and delivered by the representatives whose signatures are set forth below.
20. DRAFTING OF AGREEMENT
The Parties and their respective counsel have reviewed and revised this Agreement and the normal rule of construction, providing that any ambiguities are to be resolved against the drafting Party, shall not be employed in the interpretation of this Agreement.
21. NON-WAIVER OF BREACH
No breach of any provision of this Agreement can be waived unless done so expressly and in writing. Express written waiver of any one breach of this Agreement shall not be deemed a waiver of any other breach of any other provision of this Agreement.
22

22. INTEGRATION CLAUSE
All agreements, covenants, representations and warranties, express and implied, oral and written, of the Parties concerning the subject matter of this Agreement are contained or referred to in this Agreement. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any Party to the other Parties concerning the subject matter of this Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties concerning the subject matter of this Agreement, other than those referred to herein, are merged into this Agreement.
23. AMENDMENTS OR MODIFICATIONS
This Agreement shall not be modified, amended, changed or dissolved except in writing and signed by each of the Parties
24. HEADERS IN THIS AGREEMENT
This Agreement contains headings. The headings are for the convenience of reference only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement.
25. SIGNATURE IN COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an original and shall be deemed duly executed and effective upon the signing of the last counterpart by the Parties.
26. TRANSMITTED COPIES
For purposes of enforcing this Agreement, the Parties may enforce this Agreement by using a signature transmitted by facsimile or by electronic copy (e.g., PDF file).
ON BEHALF OF THE COMMONWEALTH OF MASSACHUSETTS:
By: _____________________________
Print: _____________________________
Title: _____________________________
Dated: ________________________, 2007
23

ON BEHALF OF THE NATIONAL FEDERATION OF THE BLIND:

By: _____________________________

Print: _____________________________ Title: _____________________________

Dated: ________________________, 2007

ON BEHALF OF THEMSELVES:

Adrienne Asch:

_____________________________ Dated: ________________, 2007

Jennifer Bose:

_____________________________ Dated: ________________, 2007

Bryan Bashin:

_____________________________ Dated: ________________, 2007

Robert Crowley: _____________________________ Dated: ________________, 2007

Dwight Sayer:

_____________________________ Dated: ________________, 2007

Raymond Wayne: _____________________________ Dated: ________________, 2007

Terri Uttermohlen: _____________________________ Dated: ________________, 2007

Norma Crosby:

_____________________________ Dated: ________________, 2007

24

ON BEHALF OF CARDTRONICS, INC. AND CARDTRONICS LP: By: _____________________________ Print: _____________________________ Title: _____________________________ Dated: ________________________, 2007
25

EXHIBITS Exhibit A—List of Organizations to receive a copy of the Notice (Section 2.5) Exhibit B- Approved signage (Section 4.3) Exhibit C- Installation certification (Section 4.4.2.1)
26

 
 Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 1 of 12 J3-cv-11206-NMG Document 280-1 Filed 04130/10 Page 2 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

":OMMONWEALTH OF MASSACHUSETTS, el aI.,
Plaintiffs
v.

CIVIL ACTION NO. 03-11206-MEL

CARDTRONICS, INC., el al.,

Defendants

ORDER GR>\NTlNG JOINT MOTION FOR PRELIMINARY APPROVAL OF PROPOSED REMEDlA'flON PLAN CONCERNING CLASS ACTION
SETTLEMENT AGREEMENT, AND FOR A FAIRNESS HEARING

Plaintiffs Commonwealth of Massachusetts, National Federation of the Blind, Inc.,

Adrienne Asch, Jennifer Bose, Norma Crosby, Dwight Sayer, Robert Crowley, Jr., Raymond

Wayne, Terri Uttermohlen, and Bryan Bashin and Defendants Cardtronies Inc. and Cardtronics

USA, Inc (successor by conversion to Cardtronics, LP) (collectively "Cardtronics") seek

preliminary approval of a remediation plan ("Proposed Remediation Plan") concerning alleged

violations of a class action settlement agreement that was approved by this Court on December 4,

2007. See Final Order and Judgment ("Final Order") at 12 (Docket No. 279, Dec. 4, 20(7). The

Parties also request that a final fairness hearing be scheduled. For the reasons set forth below,

this motion is hereby granted.

I. Background

The underlying action that resulted in the settlement in this case was brought by the

Commonwealth of Massachusetts, the National Federation of the Blind, Inc. (HNFB"), and eight

blind individuals. Cardtronies owns andlor operates approximately 30,000 ATMs throughout the

United Slates. Currently, Cardtronics owns approximately 18,000 ATMs ("Cardtronics-owned

Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 2 of 12 Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30/10 Page 3 of 13
ATMs") and operates approximately 12,000 ATMs that are owned by independent merchants who are customers ofCardtronics ("Merchant-owned ATMs").
Plaintiffs brought suit under the Americans with Disabilities Act, 42 U.S.C. § 121S1 el seq., and Massachusetts state law. Plaintiffs requested that Defendants' ATMs be made accessible to and independently useable by blind people through the use of Voice-guidance technology.
In 2007, the parties reached a comprehensive and detailed settlement. On December 4, 2007, the Court issued its Final Order, in which it gave final approval to the parties' settlement agreement, incorporated the settlement agreement as Exhibit I to the Final Order ("'Final Order Ex. I "), and retained jurisdiction of all matters relating to the interpretation. ,Idministration, implementation, effectuation and enforcement of the Agreement. final Order at 12-13. II. The Events Leading To This Motion
final Order Ex. I provided that the NFB would monitor compliance with the Final Order by conducting tests of ATMs around the country to ensure that they were Voice-guided and otherwise complied with the Final Order. The NFB began conducting these tests in 2008, and the tests indicated problems with Cardtronics' implementation of the Final Order. This began a meet and confer process. consistent with the requirements of the Final Order, to identify all requirements that Cardtronics had failed to meet, the reasons for those failures and how best to remedy those failures. This meet and confer process included numerous calls and letters, production by the parties of relevant documents and information, and two in-person meetings
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between the parties, which included one meeting between the parties' technical experts in an

effort to improve the scripts' running on the various makes and models of AT'vI.

This process has established that the following requirements of the Final Order have not

been, or will not be, met:

• Approximately 3,800 Cardtronics-owned ATMs are not Voice-guided as required

by the Final Order.

•

Cardtronics has acknowledged that it is not likely to meet the July 1, 20 I0,

deadline for at least ninety percent of all transactions nationally, and within

Massachusetts, to occur on Voice-guided ATMs.

• Many of the scripts on the ATMs are confusing to the blind user; some scripts do

not allow a blind user to complete each step in the transaction and/or do not

adequately describe the layout of the machine.

• Some purportedly Voice-guided ATMs do not comply with the Final Order

because they do not have headphone jacks or tactilely discernible controls.

•

The signage requirements ofthe Final Order have not been met.

•

The ATM locator on Cardtronics' website has not been consistently updated to

accurately identify ATMs that are equipped with Voice-guidance.

The parties have reached agreement on a Proposed Remediation Plan, for which they seek

preliminary approval.

, A "script" consists of software loaded on the ATM that provides an audio description of the machine, so that a blind user knows the location of various controls, and gives audio instructions allowing blind users to withdraw money, check bank balances and accomplish any other transactions available through the ATM.
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Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 4 of 12 Case 1:03-cv-11206-NMG Document 280-1 Filed 04130110 Page 5 of 13
Ill. The Parties' Proposed Remediation Plan The Proposed Remediation Plan provides as follows: (I) All Cardtronics-owned ATMs in Massachusetts will be Voice-guided no later than
June 30. 20]0. (2) By December 31, 2010, at least ninety percent (90%) of all transactions at covered
ATMs occurring within the borders of Massachusetts will occur on ATMs that are Voice-guided. (3) All Cardtronics-owned ATMs nationally will be Voice-guided no later than
December 3], 20 I0, with the exception of Cardtronics-owned ATMs located in 7-Elevcn stores which will be Voice-guided no later than March 31, 2011.
(4) By March 31, 20 I J, at least ninety percent (90%) of all transactions at covered ATMs nationally will occur on ATMs that are Voice-guided.
(5) With the assistance oftbe NFB, Cardtronics has developed enhanced scripts for the great majority of the ATMs it owns. With the exception of Cardtronics-owned ATMs located in 7-Eleven stores, on or before December 31,2010 Cardtronics will install enhanced scripts on all Cardtronics-owned ATMs, except where it is not technologically feasible to do so, in which cases. on or before December 31.2010. Cardtronics shall either (i) replace such ATMs with ATMs on which an enhanced script can and will be installed, or (ii) remove such ATMs from the Cardtronics-owned fleet. Cardtronics-owned ATMs located in 7-Eleven stores will be Voicel,\uided no latcr than March 31, 20 II. Any script on any Cardtronics·owned ATM, including the enhanced scripts, shall meet the requirements set forth in the definition of "Voice-guided" and "Voice-Guidance" set forth in thc Final Orde~ and as supplemented in paragraph 6 of this Order.
2 Final Order Ex. I at 4.
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Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 5 of 12
Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30/10 Page 6 of 13
(6) With the exception ofCardtronics-owned ATMs located in 7-Eleven stores, by December 3 J, 2010, all Cardtronics-owned Voice-guided ATMs and those merchant-owned, Voice-guided ATMs that Cardtronics designates as making up a portion of the ninety percent (90%) transaction requirements of paragraphs 2 and 4 above, will have tactilely discernible controls, that is, operating mechanisms used in conjunction with speech output that can be located and operated by feel. When a numeric keypad is part of the tactilely discernible controls, all function keys will be mapped to the numeric keypad and, except for those remaining Wincor ATMs installed in Target stores prior to June 2007, the numeric keypad will have an "echo" effect such that the user's numeric entries (other than the entry of a personal identification number) are repeated in voice form, All tactilely discernible controls will otherwise comply with applicable regulations, All Cardtronics-owned ATMs located in 7-Eleven stores will meet these requirements no later than March 31, 20 I ) .
(7) With the exception ofCardtronics-owned AT'v1s located in 7-Eleven stores, by December 31, 2010, all Cardtronics-owned ATMs will have appropriate signage as ident! fied in the Final Order Ex. 13 All Cardtronics-owned ATMs located in 7-Eleven stores will meet these requirements no later than March 31, 20 I I. By December 3], 20 I0, Cardtronics will send such signage to each of its Merchant-owned customers that operate a Voice-guided ATM (with the exception of those customers for whom Cardtronics physically placed Braille signage on each of the customer's Voice-guided ATMs after April 9, 2007) requesting that those customers install such signage on their Voice-guided ATMs. Cardtronics will include a letter from the NFB describing the importance of such signage with its request. On or before Fehruary ), 20 II,
) See Final Order Ex_ I at'14.2. -5-

Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 6 of 12 Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30/10 Page 7 of 13
Cardtronics will provide the NFB with the approximate date on which it placed signage on each of the Merchant-owned Voice-guided ATMs or sent the appropriate signage by mail.
(8) By December 31, 2012, Cardtronics will cause to have inspected all Cardtronicsowned. non-branded ATMs to ensure that the Voice-guided features of these ATMs are in working condition. Approximately 10,000 of these inspections shall take place in calendar years 201 0 and 2011. with the balance taking place in calendar year 2012, To the extent Cardtronics can demonstrate to Class counsel that within the first two years of conducting such inspections the Voice-guided features are in compliance with the definition of Voice-guidance. the parties shall meet to discuss the results of these inspections and may agree in writing that Cardtronics shall cause to have inspected a minimum of I ,000 Cardtronics-owned, non-branded ATMs each year for the remainder of the term of the Agreement. These inspections will be documented in a manner showing that the person conducting the inspection used headphones to listen to the voice script on the ATM. Similarly, in the course of conducting its routine inspections of Cardtronicsowned, branded ATMs, such inspections shall be documented in a manner showing that the person conducting the inspection used headphones to listen to the voice script on the ATM, On a monthly basis, Cardtronics shall report the results of all inspections required by this paragraph to Class counsel.
(9) In addition to the reporting requirements identified in the f'inal Order,4 Cardtronics will report monthly betweenlune 1,2010 and December 31,2011. For the period between June 1, 2010 and December 31, 2011, Cardtronics will add to the information it is currently reporting for each Cardtronics-owned ATM whether the enhanced script has been
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Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 7 of 12 Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30/10 Page 8 of 13
installed on the ATM, as well as the month and year of such installation. No later than October 31, 20 I0, for each Cardtronics-owned ATM on which it is not technologically feasible to install an enhanced script, Cardtronics will indicate whether it will replace such ATM with a Voiccguided ATM or remove the ATM from the fleet.
(l0) Cardtronics will keep its ATM locator on its website up to date as to whether a covered ATM is equipped with Voice-guidance.
(11) Notice of the Proposed Remediation Plan will be provided to the Class in the manner described below.
(12) In addition to the testing costs set forth in Final Order Ex. I, Cardtronics will pay $60,000 to the NFB to be used for interim testing and other compliance monitoring by the NFB taking place in 2010 and the first quarter of2011. The NFB shall provide Cardtronics with invoices as testing is completed, to be payable by Cardtronics within 30 days of receipt of each inVOIce.
(13) Cardtronics will pay thc NFB $145,000 for the reasonable fees and costs incurred by the NFB as a result of Cardtronics' failure to comply with the Final Order. This amount includes altomeys' fees and testing costs that the NFB incurred due to the failure ofCardtronics to comply with the Final Order and shall be paid in two equal installments of $72,500, onc upon the effective date ofthis Court's final approval ofthe Proposed Remediation Plan and the second 60 days thereafter.
(14) The requirements set forth in Final Order Ex, I shall remain in effect, in whole or in part, for eight years from the date of this Court's final approval of the Proposed Remediation Plan. The Parties may agree in writing to extend the requirements of Final Order Ex. I further or
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Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 8 of 12 Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30110 Page 9 of 13
the Court may so order in connection with paragraph 13.3. Notwithstanding any expiration of Final Order Ex. I, paragraphs 6, 7 and 13 of Final Order Ex. I shall continue to remain in effect in perpetuity.
(15) To the extent that the requirements set forth herein are inconsistent with any
provision of Final Order Ex. I, this Order controls. All other terms and requirements of the Final Order, including Final Order Ex. I, will remain in full force and effect.
DISCUSSION I, The Proposed Remediation Plan Will be Granted Preliminary Approval.
Where. as here, "all parties ... agree to the proposed modification of the [Final Order], the standards ... to determine whether the modification should be approved are governed by Fed.
R. Civ. P. 23(e)."s This rule provides that approval should be granted when the proposed
modification is "fair, reasonable, and adequate.,,6 The purpose of the preliminary review process is to ascertain whether there is any reason
not to notify the class members of the proposed modification and to proceed with a fairness hearing7 "If the preliminary evaluation of the proposed [modification] does not disclose grounds to doubt its fairness or other obvious deficiencies ... and appears to fall within the range of possible approval. the court should direct that notice under Rule 23(e) be given to the class members of a fonnal fairness hearing ....,,8
5 See. e.g., Dillard v. Chilton County Comm 'n, 2008 WL 912753. at *2 (M.D. Ala. Apr. 3, 2(08). 6 Fed. R. Civ. P. 23(e)(J )(C); see also City P'ship Co. v. Atlantic Acquisition Ltd. P'ship, 100 F.3d 1041, 1043 (1st CiT. 1996) (same). 7 See, e.g., Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982). 8 4 Alba Conte & Herbert B. Newberg. Newberg on Class Actions § II :25 at 38 (4th ed. 2002) (hereinafter "Newberg") (quoting Manual/or Complex Litigation (Third) § 3041 (1995)).
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Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 9 of 12
Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30/10 Page 10 of 13
Among the factors to be considered are (1) the reaction of the class to the settlement; (2) the stage of the proceedings and the amount of discovery completed; (3) the range of reasonableness of the settlement fund in light of the best possible recovery; and (4) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation9 An analysis of these factors supports preliminary approval of the Proposed Remediation Plan.
A. Tbe Reaction of tbe Class to tbe Settlement Although this factor is difficult to assess prior to the issuance of notice to class members and an opportunity to object,IO at this stage, it is important to note that the representative plaintift:~ as well as the Commonwealth and the President of the NFB all believe that the Proposed Remediation Plan is fair, reasonable and adequate. In addition, class counsel and the Attorney General of Massachusetts concur based on their experience with ATM cases and settlements and Title llJ class action litigation, as does Cardtronics' General Counsel. This factor favors approval of the Proposed Remediation Plan. B. Tbe Stage of tbe Proceedings and tbe Amount of Discovery Completed Because this dispute is not in litigation, the parties did not engage in formal discovery in reaching the Proposed Remediation Plan. As set forth above, however, the panics did engage in extensive fact finding, including exchanging documents and participating in numerous telephonic
~ City ojDe/roit v. Grinnel Corp., 495 F.2d 448, 463 (2d Cir. 1974), overruled on other grounds by Missouri v. Jenkins, 491 U.S. 274 (1989); see In re Rela/en Antitrust Litig" 23 I F.R.D.52. 72-74 (D. Mass. 2005) (analyzing fairness using Grinnell factor); In re Lupron ;\1ktg. and Sales Practices Litig., 228 F.R.D. 75, 95-98 (D. Mass. 2005) (same). Other factors relevant to the settlement of a case in litigation -- for example, the risks of establishing damages -- are irrelevant here. 10 See In re Lupron, 228 F.R.D. at 96 (analyzing objections to assess this factor).
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Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 10 of 12 Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30/10 Page 11 of 13
and in-person meetings. These facts support preliminary approval of the Proposed Remediation Plan.
C. The Range of Reasonableness of the Settlement Fund in Light of the Best Possible Recovery
While this case does not involve a settlement fund, it is possible to consider the Proposed Remediation Plan in light oflhe best possible outcome and the delay resulting from litigating this dispute.
The Proposed Remediation Plan includes requirements that go beyond those found in the Final Order, including more extensive monitoring and increased reporting by Cardtronics.
Equally important, a dispute very likely would have delayed the most important goal of the underlying litigation -- making the covered ATMs accessible to the blind. Under the Proposed Remediation Plan, this will be accomplished by March 30, 20 II. Litigating to enforce the terms of the Final Order may well have delayed the date on which the covered ATMs are made accessible.
• ••
Based on the above, the Court grants preliminary approval to the Proposed Remediation Plan. II. Notice to the Class
Rule 23(e)(J) states that "[t]he court must direct notice in a reasonable manner to all class members who would be bound by the proposal." "The court has complete discretion in
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Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 11 of 12 Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30/10 Page 12 of 13
determining what constitutes a reasonable notice scheme, both in terms of how notice is given and what it contains.,,11
Plaintiffs propose that notice oftne Proposed Remediation Plan be: (1) posted on Cardtronics' and NFB's websites; (2) mailed and/or emailed to numerous disability rights organizations; (3) emailed to a Iistserv that includes blind persons; and (4) published as a onehalf page advertisement in the Braille Monitor and the Braille Forum.
The Braille Monitor is the publication of the NFB. It is regularly sent to the NFB's approximately 50,000 members, among others. The Braille Forum, the monthly magazine ofthe American Council of the Blind, has a total circulation of approximately 25,000. In addition, the organizations to which the notice is to be sent include a number composed of, and/or focused on the issues of, blind people. That list also includes all ofthe Protection and Advocacy Systems (P&As) around the United States, federally-funded nonprofit corporations with a mandate to advocate for the rights of individuals with disabilities, and all Centers for Independent Living (CILs), federally-funded, nonprofit corporations that provide services to maximize the independence of individuals with disabilities. Both the P&As and CILs will have the ability to reach blind people who are not involved with any of the mainstream blindness organizations. Finally, the list also includes a number of disability rights organi7~tions.
The Court holds that the notice program proposed by the parties will satisfY the requirements of Rule 23 and due process.
In addition, the Court approves the proposed form of the notice. attached as Exhihit B to the Joint Motion for Preliminary Approval of Proposed Remediation Plan. That notice describes
" 7B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1797.6 (3d ed. -11-

Case 1:03-cv-11206-NMG Document 283 Filed 05/18/10 Page 12 of 12 Case 1:03-cv-11206-NMG Document 280-1 Filed 04/30/10 Page 13 of 13

the nature of the action, including the class, provides a description of the Proposed Remediation Plan, and class members' rights to object to the Plan, including through counsel, should they so choose. As such, the proposed notice meets the requirements of Rule 23 and due process.
Finally, class members who wish to object to the Proposed Remediation Plan must submit their objection in writing to the Court, with copies to all Counsel, within 30 days after the publication of notice as described above. "In order to prevent spurious objections to the settlement, the majority of settlements include a mandatory procedure which objectors must follow if their objections are to be considered." 4 Newberg § 11.56 at 181. This Court approves the parties' proposed procedure for class members to express their objection to the Proposed Remediation Plan.
Accordingly, the Court GRANTS the Joint Motion for Preliminary Approval of Proposed Remediation Plan Concerning Class Action Settlement Agreement, and for a Fairness Hearing and will hold a Fairness Hearing on the Proposed Remediation Plan on
at 2,'.ro""" ..

It is so ordered.
I' Dated: 5 /' i' 0

'~M.
United States District

Judge

2005). -12-

 
 Case 1:03-cv-11206-NMG Document 288 Filed 11/03/10 Page 1 of 6 Case 1:03-cv-11206-NMG Document 286-1 Filed 10/22/10 Page 2 of 7

UNITED STATES DISTRlCT COURT FOR THE DISTRlCT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et aI.,
Plaintiffs v. CARDTRONICS, INC., et al.,

CIVIL ACTION NO. 03-11206-NMO

Defendants

- -' . ;~:-;: I . - -:..:::'..... ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF PROPQSE!) REMEDIATION PLAN CONCERNING CLASS ACTION SETTLEMENT
AGREEMENT
Plaintiffs Commonwealth of Massachusetts, National Federation of the Blind, Inc.,

Adrienne Asch, Jennifer Bose, Nonna Crosby, Dwight Sayer, Robert Crowley, Jr., Raymond Wa}'Tle, Terri UttcJTl1ohlen, and Bryan Bashin and Defendants Cardtronics Inc. and Cardtronics

USA, Inc. (successor by conversion to Cardtronics, LP) (collectively "Cardtronics") seek final

approval of a remediation plan ("Proposed Remediation Plan") concerning alleged violations of a class action settlement agreement that was approved by this Court on December 4, 2007. See

Final Order and Judgment ("Fi nal Order") at12 (Docket No. 279, Dec. 4, 2007).

In its May 18,2010 Order Granting Joint Motion for Preliminary Approval of Proposed

Remediation Plan Concerning Class Action Settlement Agreement, and for a Fairness Hearing ("Preliminary Approval Order" (docket no. 283)), this Court granted preliminary approval of the

parties' Proposed Remediation Plan based on its analysis of the factors set forth on pages nine

Case 1:03-cv-11206-NMG Document 288 Filed 11/03/10 Page 2 of 6 Case 1:03-cv-11206-NMG Document 286-1 Filed 10/22/10 Page 3 of 7
and tcn of that Order. The Court could not fully evaluate one such factor - the reaction of the class to the settlement - because notice to the class had not yet issued.
The parties have infonned the Court that they have completed the notice program ordered by the Court, and no class member bas objected to the Proposed Remediation Plan. This further demonstrates that the Plan should be granted final approval. For this reason, as well as the grounds cited by this Court in its Preliminary Approval Order, the Court grants final approval to the following Proposed Remediation Plan:
(1) All Cardtronics-owned ATMs in Massachusetts will be Voice-guided no later than June 30, 2010.
(2) By December 31, 2010, at least ninety percent (90%) of all transactions at covered ATMs occurring within the borders of Massachusetts will occur on ATMs that are Voice-guided.
(3) All Cardtronics-owned ATMs nationally will be Voice-guided no later than December 31 , 2010, with the exception of Cardtronics-owned ATMs located in 7-Eleven stores which will be Voice-guided no later than March 31, 2011 .
(4) By March 31, 2011, at least ninety percent (90%) of all transactions at covered ATMs nationally will occur on ATMs tbat are Voice-guided.
(5) With the assistance of the NFB, Cardtronics has developed enhanced scripts for
the great majority of the ATMs it owns. With the exception ofCardtronics-owned ATMs located
in 7-Eleven stores, on or before December 31,2010 Cardtronics will install enhanced scripts on all Cardtronics-owned ATMs, except where it is not technologically feasible to do so, in which cases, on or before December 31, 2010, Cardtronics shall either (i) replace such ATMs with ATMs on which an enhanced script can and will be installed, or (ii) remove such ArMs from the
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Cardtronics-owned fleet. Cardtronics-owned ATMs located in 7-Eleven stores will be Voiceguided no later than March 31 , 2011. Any script on any Cardtronics-owned ATM, including the enhanced scripts, shall meet the requirements set forth in the definition of "Voice-guided" and "Voice-Guidance" set forth in the Final Orderl and as supplemented in paragraph 6 of this Order.
(6) With the exception ofCardtronics-owned ATMs located in 7-Eleven stores, by December 31,2010, all Cardtronics-owned Voice-guided ATMs and those merchant-owned, Voice-guided ATMs that Cardtronics designates as making up a portion of the ninety percent (90%) transaction requirements ofparagrapbs 2 and 4 above, will have tactilely discernible controls, that is, operating mechanisms used in conjunction with speech output that can be located and operated by feel. When a numeric keypad is part of the tactilely discernible controls, all function keys will be mapped to the numeric keypad and, except for those remaining Wincor ATMs installed in Target slores prior to June 2007, the numeric keypad will have an "echo" effect such that the user's numeric entries (other than the entry of a personal identification number) are repeated in voice form. All tactilely discernible controls will otherwise comply with applicable regulations. All Cardtronics-owned ATMs located in 7-Eleven stores will meet these requirements no later than March 31, 2011.
(7) With the exception ofCardtronics-owned ATMs located in 7-E1even stores, by December 31, 2010, all Cardtronics-owned ATMs will have appropriate signage as identified in the Final Order Ex. 1.2 All Cardtronics-owned ATMs located in 7-Eleven stores will meet these requirements no later than March 31, 2011. By December 31, 2010, Cardtronics will send such signage to each of its Merchant-owned customers that operate a Voice-guided ATM (with the
I Final Order Ex. I at 4. 2 See Final Order Ex. 1 at ,. 4.2.
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exception of those customers for whom Cardtronics physically placed Braille signage on each of the customer's Voice-guided ATMs after April 9, 2007) requesting tbat those customers install such signage on their Voice-guided ATMs. Cardtronics will include a letter from the NFB describing the importance of such signage with its request. On or before February 1, 2011, Cardtronics will provide the NFB with the approximate date on which it placed signagc on each of the Merchant-owned Voice-guided ATMs or sent the appropriate signage by maii.
(8) By December 31, 2012, Cardtronics will cause to have inspected all Cardtronicsowned, non-branded ATMs to ensure that the Voice-guided features of these ATMs are in
working condition. Approximately 10,000 of these inspections shall take place in calendar years 2010 and 2011, with the balance taking place in calendar year 2012. To the extent Cardtronics can demonstrate to Class counsel that within the first two years of conducting such inspections the Voice·guided features are in compliance with the defmitioD of Voice-guidance, the parties shall meet to discuss the results oftbese inspections and may agree in writing that Cardtronics shall cause to have inspected a minimum of 1,000 Cardtronics-owned, non-branded ATMs each year for the remainder oftbe tenn of tbe Agreement. These inspections will be documented in a manner showing that the person conducting the inspection used headphones to listen to the voice script on the ATM. Similarly, in -the course of conducting its routine inspections ofCardtronicsowned, branded ATMs, such inspections shall be documented in a manner showing that the person conducting the inspection used headphones to listen to the voice script on the ATM . On a monthly basis, Cardtronics shall report the results of all inspections required by this paragraph to Class counsel.
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Case 1:03-cv-11206-NMG Document 288 Filed 11/03/10 Page 5 of 6 Case 1:03-cv-11206-NMG Document 286-1 Filed 10/22/10 Page 6 of7
(9) In addition to the reporting requirements identified in the Final Order,) Cardtronics will report monthly between June I, 2010 and December 31, 2011 . For the period between June 1,2010 and December 31,20 11 , Cardtronics will add to the iofonnatioo it is currently reporting for each Cardtronics-owned ATM whether the enhanced script has been installed on !.he ATM, as well as tbe month and year of such installation. No later than October 3), 20 I0, for each Cardtronics-owned ATM on which it is not technologically feasible to install an enhanced script, Cardtronics will indicate whether it will replace such ATM with a Voice-guided ATM or remove the A TM from the fleet.
(10) Cardtronics will keep its ATM locator on its website up to date as to whether a covered ATM is equipped with Voice·guidance.
(11) In addition to the testing costs set forth in Final Order Ex. I, Cardtronics will pay $60,000 to the NFB to be used for interim testing and other compliance monitoring by the NFB tak.ing place in 2010 and the first quarter of2011. The NFB shall provide Cardtronics with invoices as testing is completed, to be payable by Cardtronics within 30 days of receipt of each mVOlce .
(12) Cardtronics will pay the NFB S145,000 for the reasonable fees and costs incurred by the NFB as a result ofCardtronics' failure to comply with the Final Order. This amount includes attorneys' fees and testing costs that the NFB incurred due to the failure ofCardtronics to comply with the Final Order and shall be paid in two equal installments of $72,500, one upon the effective date of this Court's final approval oftbe Proposed Remediation Plan and the second 60 days thereafter.
) See id. at ' 4.4.1.
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· .

Case 1:03-cv-11206-NMG Document 288 Filed 11/03/10 Page 6 of 6

Case 1:03-cv-11206-NMG Document 286-1 Filed 10/22/10 Page 7 of 7

(13) The requirements set forth in Final Order Ex. 1 shall remain in effect, in whole or in part, for eight years from the date of this Court' s final approval of the Proposed Remediation Plan . The Parties may agree in writing to extend the requirements of Final Order Ex. 1 further or the Court may so order in connection with paragraph 13.3. Notwithstanding any expiration of Final Order Ex. I. paragraphs 6, 7 and 13 afFinal Order Ex. I shall continue to remain in effect in perpetuity.
(14) To the extent that the requirements set forth herein are inconsistent with any
provision afFinal Order Ex . 1, this Order controls. AU other terms and requirements of the Final Order, including Final Order Ex. I, will remain in full force and effect.
Acco rdingly, the Court GRANTS the Ioint Motion for Final Approval of Proposed Remediation Plan Concerning Class Action Settlement Agreement.
It is so ordered.
Dated: 11/3/10 Judge
42809)

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 Case 1:03-cv-11206-NMG Document 290 Filed 07/29/11 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et al.,
Plaintiffs v. CARDTRONICS, INC., et al.,
Defendants

CIVIL ACTION NO. 03-11206-NMG

PLAINTIFFS’ MOTION FOR CONTEMPT Plaintiffs Commonwealth of Massachusetts, National Federation of the Blind, Inc. (“NFB”), Adrienne Asch, Jennifer Bose, Norma Crosby, Dwight Sayer, Robert Crowley, Jr., Raymond Wayne, Terri Uttermohlen, and Bryan Bashin move for an order holding Defendants Cardtronics, LP, and Cardtronics, Inc. (collectively “Cardtronics”) in contempt for violating the Remediation Plan approved by the Court on November 3, 2010. The Remediation Plan set forth ten requirements that must be satisfied in order for Cardtronics to make its ATMs accessible to blind users. Cardtronics has failed to meet all but one of these requirements and, therefore, Plaintiffs request that the Court hold Cardtronics in contempt and enter the sanctions and other relief outlined below. The grounds for Plaintiffs’ motion are set forth more fully in the Memorandum in Support of Plaintiffs’ Motion for Contempt, filed herewith. WHEREFORE, Plaintiffs request that the Court: (1) Declare that Cardtronics is in contempt of this Court’s November 3, 2010
Order;

Case 1:03-cv-11206-NMG Document 290 Filed 07/29/11 Page 2 of 4
(2) Order that Cardtronics pay $100 per month for each Cardtronics-owned ATM that remains active and fails to meet the definition of “voice-guided” under the Court’s November 3, 2010 Order;
(3) Order that Cardtronics pay $100 per month for each merchant-owned ATM that Cardtronics counts towards the 90% transaction requirement of ¶ 4 of the Court’s November 3, 2010 Order, and that remains active and fails to meet the definition of “voice-guided” under the Order;
(4) Order that Cardtronics pay to NFB and/or the Commonwealth $250.00 for each test conducted under the Court’s November 3, 2010 Order and to extend the testing period through December 31, 2012;
(5) Order that Cardtronics continue to submit monthly compliance reports through June 2013; and
(6) Award the NFB the reasonable attorneys’ fees and costs incurred as a result of Cardtronics’ contumacious conduct and in bringing this contempt motion. LOCAL RULE 7.1(A)(2) CERTIFICATION
The undersigned counsel for the plaintiffs hereby certify that they have conferred with counsel for the defendants in a good faith attempt to resolve or narrow the issues raised in this motion.
REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 7.1(D), Plaintiffs believe oral argument will assist the Court with the disposition of the issues raised in this motion.
2

Case 1:03-cv-11206-NMG Document 290 Filed 07/29/11 Page 3 of 4

Respectfully submitted,

NFB AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,

V &KULVWLQH 0 1HWVNL _____________________________ Anthony M. Doniger, BBO # 129420 Christine M. Netski, BBO # 546936 Sugarman, Rogers, Barshak & Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

V 6KDURQ .UHYRU:HLVEDXP _______________________ Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030

V 7LPRWK\ 3 )R[ BBBBBBBBBBBBBBBBBBBBBB Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 (303) 595-9700

COMMONWEALTH OF MASSACHUSETTS By its Attorneys,
MARTHA COAKLEY, ATTORNEY GENERAL

V 0DXUD 7 +HDOH\ ____________________________ Maura T. Healey, BBO # 640856 Assistant Attorney General Chief Civil Rights Division Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2919
DATED: July 29, 2011

3

Case 1:03-cv-11206-NMG Document 290 Filed 07/29/11 Page 4 of 4 CERTIFICATE OF SERVICE
I, Christine M. Netski, hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants.
V &KULVWLQH 0 1HWVNL ____________________ Christine M. Netski netski@srbc.com
435983
4

 
 Case 1:03-cv-11206-NMG Document 308 Filed 12/15/11 Page 1 of 5

United States District Court

District of Massachusetts

________________________________

)

COMMONWEALTH OF MASSACHUSETTS, )

NATIONAL FEDERATION OF THE

)

BLIND, INC., NATIONAL FEDERATION )

OF THE BLIND OF MASSACHUSETTS, ) Civil No.

INC., ADRIENNE ASCH, TERESA

) 03-11206-NMG

JERADLI, PHILIP OLIVER and

)

JENNIFER BOSE,

)

Plaintiffs,

)

)

v.

)

)

E*TRADE ACCESS, INC., E*TRADE )

BANK, CARDTRONICS, INC.,

)

CARDTRONICS USA, INC. and

)

ELECTRONIC FUNDS TRANSFER

)

ASSOCIATION,

)

Defendants.

)

________________________________ )

GORTON, J.

MEMORANDUM & ORDER

This class-action was brought by the National Federation of

the Blind, the Commonwealth of Massachusetts and other interested

parties (collectively, “plaintiffs”) under the Americans with

Disabilities Act (“ADA”) against defendant owners and operators

of automated teller machines (“ATMs”). Plaintiffs demand that

defendants make their ATMs accessible to the blind. In June,

2007, the parties agreed to work together to achieve compliance

and entered into a Settlement Agreement. The Court approved the

Settlement Agreement later that year and retained jurisdiction

over the case to interpret and enforce it. After three years of

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Case 1:03-cv-11206-NMG Document 308 Filed 12/15/11 Page 2 of 5
sporadic progress, the parties entered into and this Court approved a joint Remediation Plan setting forth more precise requirements and deadlines.
Plaintiffs’ pending motion for contempt alleges that defendants have failed to meet all but one of the ten requirements set forth in the Remediation Plan and requests, inter alia, that the Court impose sanctions of $100 per month for every active Cardtronics-owned ATM that currently remains in noncompliance. In their response and cross-motion, defendants claim that they have substantially complied with the Remediation Plan and have expended significant funds to do so. They also assert that plaintiffs’ motion itself breaches the “reasonableness” provision of the Remediation Plan. I. Legal Analysis
A. Standard A district court may hold a party in civil contempt for violating a court order if 1) the party is aware that it is subject to the order, 2) the order is “clear and unambiguous” and 3) the violation is proved by clear and convincing evidence. Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 17 (1st Cir. 1991). While “good-faith efforts alone do not insulate a defendant in a contempt action,” a district court may, if it chooses, decline to find a party in contempt where “diligent efforts result in substantial compliance with the underlying order.” AccuSoft Corp.
-2-

Case 1:03-cv-11206-NMG Document 308 Filed 12/15/11 Page 3 of 5
v. Palo, 273 F.3d 31, 47 (1st Cir. 2001). Whether a party has substantially complied with a court order depends on the particular circumstances of the case, including “the nature of the interest at stake and the degree to which compliance affects that interest.” Id.
B. Application Civil contempt sanctions are warranted in this case. Defendants knew that they were subject to the Remediation Plan, which provided clear instructions for compliance, and they failed to comply fully with most of its requirements on or before the self-imposed deadlines. Nor have defendants “substantially” complied with the Remediation Plan or demonstrated that they have made all reasonable efforts to do so. Instead of admitting their non-compliance and promising better effort, defendants disingenuously claim they have complied in spite of a plethora of evidence to the contrary. Despite knowing that the Remediation Plan requires ATMs with “enhanced scripts” to enable voice guidance, defendants misleadingly report that 90% of their transactions in Massachusetts and 86% of their transactions nationwide now occur on voice-guided ATMs (while, in fact, only 65% and 51%, respectively, of such transactions are in compliance). Defendants also deny that the Remediation Plan imposes the “onerous requirement” of inspecting all of its ATMs nationwide, despite unambiguous language in Paragraph 8 requiring
-3-

Case 1:03-cv-11206-NMG Document 308 Filed 12/15/11 Page 4 of 5
exactly that. In March, 2011, defendants discontinued their practice of producing monthly inspection reports without notice to plaintiffs or authorization from the Court.
Defendants cite an array of exigent circumstances to justify their non-compliance and failure to meet deadlines. While some unforeseen obstacles were to be expected, defendants have had four years to remedy them. The deadlines they have consistently missed were, ironically, the ones they proposed in the first place. See Cobell v. Babbitt, 37 F. Supp. 2d 6, 10 (D.D.C. 1999) (“When a party participates in drafting the relevant order, it does (or is held to have done) so with an understanding of what it can reasonably accomplish.”). The compliance costs defendants have expended thus far, while considerable, do not assuage the Court because every ATM owner and operator in the country is required to incur similar expenses to update their machines to comply with federal law.
Plaintiffs have worked cooperatively with defendants over the past four years to achieve compliance and have, until now, elected the dispute resolution process over litigation in response to defendants’ persistent intransigence. Civil contempt is warranted when, as here, other means of compelling compliance have been tried without success. In re Att’y Gen. of the United States, 596 F.2d 58, 65 (2d Cir. 1979).
In a last-ditch effort to avoid sanctions, defendants promise that all remaining issues will be resolved by March 15,
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Case 1:03-cv-11206-NMG Document 308 Filed 12/15/11 Page 5 of 5
2012. The Court holds defendants to their word and issues a Shakespearean warning: beware the Ides of March. If defendants do not achieve full compliance with the Remediation Plan on or before that date, they will be held in contempt and ordered to pay a fine of $50 per month for every ATM not in full compliance.
ORDER
In accordance with the foregoing, plaintiff’s motion for
contempt (Docket No. 290) is ALLOWED, in part, and DENIED, in
part. Defendants are directed:
1) to achieve full compliance with the Remediation Plan on or before March 15, 2012. Such compliance shall include:
a) the installation of enhanced scripts to enable voice guidance, tactilely discernable controls and appropriate signage on all Cardtronic-owned ATMs not located in 7-Eleven stores, and
b) the inspection of all such ATMs to ensure that the newly installed features are in working condition;
2) to pay to plaintiffs reasonable attorneys’ fees and costs incurred in connection with the filing and prosecution of this motion for contempt, the amount of which shall be determined by the Court after the submission by plaintiffs of supporting pleadings to which defendants may respond.
Defendants’ cross-motion for enforcement of the settlement
agreement (Docket No. 294) is DENIED.
So ordered.
/s/ Nathaniel M. Gorton Nathaniel M. Gorton United States District Judge
Dated December 15, 2011
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 Case 1:03-cv-11206-NMG Document 312 Filed 08/17/12 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et al.,
Plaintiffs v. CARDTRONICS, INC., et al.,
Defendants

CIVIL ACTION NO. 03-11206-NMG

PLAINTIFFS’ SECOND MOTION FOR CONTEMPT Plaintiffs Commonwealth of Massachusetts, National Federation of the Blind, Inc., Adrienne Asch, Jennifer Bose, Norma Crosby, Dwight Sayer, Robert Crowley, Jr., Raymond Wayne, Terri Uttermohlen, and Bryan Bashin respectfully request this Court to find Defendants Cardtronics, LP, and Cardtronics, Inc. in contempt for violating this Court’s Order of December 15, 2011, which required Defendants – no later than March 15, 2012 – to comply fully with the Remediation Plan approved by the Court, and to impose sanctions accordingly. More than four months have elapsed since the Court’s final deadline for compliance and Cardtronics still has not met the vast majority of the requirements of the Remediation Plan that were at issue in Plaintiffs’ initial motion for contempt. In addition, Cardtronics’ motion recent compliance report reveals that it has also violated the Remediation Plan by entering into new contracts with merchants whose ATMs it admits are not voice-guided and placing into service newly-acquired ATMs that it has not demonstrated are voice-guided. As discussed in more detail in the Memorandum in Support of Plaintiffs’ Second Motion for Contempt, filed under seal

Case 1:03-cv-11206-NMG Document 312 Filed 08/17/12 Page 2 of 5
herewith, immediate sanctions are necessary to ensure – once and for all – that Cardtronics satisfies its obligations to Plaintiffs and the members of the class.
WHEREFORE, Plaintiffs request that the Court: (1) Declare that Cardtronics is in contempt of this Court’s December 15, 2011
Order; (2) Order that Cardtronics pay $50 per month for the four month period since
March 15, 2012 for each of the 27,800 Cardtronics-owned ATMs that has not had signage that meets the requirements of Paragraph 7 of the Remediation Plan, in the total amount of $5,560,000; (3) Appoint a master to assist the Court in monitoring Cardtronics’ compliance efforts and, specifically, to direct the master to: (a) work with the parties to design and implement an inspection and
testing program for both Cardtronics-owned ATMs and merchantowned ATMs that Cardtronics seeks to count toward its compliance goals for purposes of determining Cardtronics’ compliance with each of its obligations under the Remediation Plan; (b) ensure that such inspection and testing program is designed and implemented with appropriate input from blind users, and that a meaningful percentage of the compliance testing is conducted by blind users; (c) work with the parties to design and implement an appropriate compliance reporting protocol to be utilized by Cardtronics to
2

Case 1:03-cv-11206-NMG Document 312 Filed 08/17/12 Page 3 of 5
accurately inform Plaintiffs concerning the status of its ongoing compliance efforts; and (d) recommend findings of fact to the Court for purposes of imposing a $50 per month fine on Cardtronics for each ATM that remains out of compliance; (4) Order that the master’s fees, as well as the costs of the inspection and testing program, be paid by Cardtronics; (5) Order Cardtronics to submit monthly compliance reports to Plaintiffs and the Commonwealth through March 31, 2014, in accordance with the reporting protocol approved by the court-appointed master; and (6) Award the NFB reasonable attorneys’ fees and costs incurred as a result of Cardtronics’ contumacious conduct and in bringing this second contempt motion.
LOCAL RULE 7.1(A)(2) CERTIFICATION The undersigned counsel for Plaintiffs hereby certify that they have conferred with counsel for the defendants in a good faith attempt to resolve or narrow the issues raised in this motion.
REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 7.1(D), Plaintiffs believe oral argument will assist the Court with the disposition of the issues raised in this motion.
3

Case 1:03-cv-11206-NMG Document 312 Filed 08/17/12 Page 4 of 5

Respectfully submitted,

NFB AND THE INDIVIDUAL PLAINTIFFS, By their Attorneys,
/s/ Christine M. Netski Christine M. Netski, BBO #546936 Anthony M. Doniger, BBO #129420 Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030

/s/ Sharon Krevor-Weisbaum Daniel F. Goldstein Sharon Krevor-Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030

/s/ Timothy P. Fox Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 (303) 595-9700

COMMONWEALTH OF MASSACHUSETTS, By its Attorneys,
MARTHA COAKLEY, ATTORNEY GENERAL
/s/ Maura T. Healey Maura T. Healey Assistant Attorney General BBO # 640856 Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200, ext. 2068
DATED: August 17, 2012

4

Case 1:03-cv-11206-NMG Document 312 Filed 08/17/12 Page 5 of 5

CERTIFICATE OF SERVICE I, Christine M. Netski, hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as nonregistered participants.

445818

/s/ Christine M. Netski Christine M. Netski

5

Case 1:03-cv-11206-NMG Document 312-1 Filed 08/17/12 Page 1 of 1
EXHIBIT A (FILED UNDER SEAL)

Case 1:03-cv-11206-NMG Document 312-2 Filed 08/17/12 Page 1 of 1
EXHIBIT B (FILED UNDER SEAL)

Case 1:03-cv-11206-NMG Document 312-3 Filed 08/17/12 Page 1 of 1
EXHIBIT C (FILED UNDER SEAL)

Case 1:03-cv-11206-NMG Document 312-4 Filed 08/17/12 Page 1 of 1
EXHIBIT D (FILED UNDER SEAL)

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 1 of 30
EXHIBIT E

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 2 of 30

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS,et a ~ .),

)

Plaintiffs,

)

E*TRADE ACCESS, INC., et al.,

)

) Defendants.

1

CLASS ACTION SETTLEMENT AGREEMENT

By the Plaintiffs:
Commonwealth of Massachusetts Office of the Attorney General One Ashburton Place Boston, MA 02108-1598
National Federation of the Blind 1800 Johnson Street Baltimore, MD 2 1230
Adrienne Asch Bryan Bashin Jennifer Bose Norma Crosby Robert Crowley Dwight Sayer Terri Uttermohlen Raymond Wayne

By the Defendants:
Cardtronics, Inc. Cardtronics LP 3110 Hayes Road, Suite 300 Houston, Texas 77082 USA

Dated: June 22,2007

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 3 of 30

TABLE OF CONTENTS

CLASS ACTION SETTLEMENT AGREEMENT......................................................................... i

DEFINITIONS................................................................................................................................ 1

PREAMBLE .................................................................................................................................. 4

MUTUAL PROMISES ................................................................................................................... 5

1. EFFECTIVE DATE............................................................................................................... 5

2. PROCEDURES FOR CLASS-WIDE SETTLEMENT......................................................... 6

2.1. Amendment of Complaint............................................................................................. 6

2.2. Certification of Class .................................................................................................... 6

2.3. 2.4.

POrtehlei.mr Pi.neanrdyinAgpMprootvioaln.s....................................................................................................................................................................................................

6 6

2.5. Notice by Publication.................................................................................................6...

2.6. Objections to Agreement .............................................................................................. 7

2.7. Final Approval Hearing and Final Judgment ................................................................ 7

2.8. Right to Withdraw from Settlement..............................................................................8

2.9. Prior Court Orders.........................................................................................................8

2.10 Best Efforts ...................................................................................................................8

3. VOICE GUIDANCE IMPLEMENTATION.......................................................................8..

3.1. Cardtronics-Owned ATMs............................................................................................8

3.2. Merchant-Owned ATMs ............................................................................................9...

3.3. July 1, 2010 Deadline ...................................................................................................9

3.4. New Technologies ........................................................................................................9

3.5 Termination of Partial Settlement Agreement ............................................................ 10

3.6 After-Acquired ATMs ................................................................................................ 10

3.7 Advanced Functionality .............................................................................................. 10

3.8 Divested ATMs ........................................................................................................... 11

3.9 Deadline .....................................................................................................................I.1

4. MISCELLANEOUS IMPLEMENTATION REQUIREMENTS........................................ 11

4.1 Web-Based List........................................................................................................... 11

4.2 Signage........................................................................................................................ 11

4.3 Reserved...................................................................................................................... 11

4.4 Notification, Verification and Monitoring..................................................................12

5. CHANGES IN LAWS GOVERNING ACCESSIBILITY OF ATMS................................ 15

5.1 New Laws ................................................................................................................... 15

5.2 Notice of Modification of Agreement......................................................................... 15

6. NO ADMISSION OF LIABILITY......................................................................................15

6.1 Purpose of Agreement Is To Avoid Further Litigation...............................................15

6.2 No Admissions ............................................................................................................ 15

6.3 No Use of Agreement ................................................................................................. 16

6.4 No Effect of Court Approval or Rejection.................................................................. 16

7. RELEASE ............................................................................................................................ 16

7.1 Scope of Release ......................................................................................................... 16

7.2 Release of Claims .....................................................................................................1..7

7.3 Covenant Not To Sue..................................................................................................17

7.4 Subsequent Discovery................................................................................................. 17

7.5 Failure to Receive Notice ............................................................................................ 18

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 4 of 30
7.6 Survival of Consumer Contracts ................................................................................. 18 7.7 No Effect On Obligations Imposed In This Agreement ............................................. 18 THIRD PARTY BENEFICIARIES ...................................................................................1..8 8.1 Acknowledge Beneficiaries ........................................................................................ 18 8.2 No Other Beneficiaries ............................................................................................... 18 ATTORNEYS FEES AND CONTRIBUTION TO THE COMMONWEALTH ............... 18 9.1 Contribution to the Commonwealth ............................................................................ 18 9.2 Attorneys' Fees and Costs .......................................................................................... 19 NOTICE TO PARTIES ....................................................................................................... 19 DURATION AND TERMINATION .................................................................................. 20 FURTHER ACTS ...............................................................................................................2.0 DISPUTE RESOLUTION ................................................................................................... 20 13.1 Notification of Non-Compliance and Opportunity to Cure or Address......................20 13.2 Meet and Confer .........................................................................................................20 13.3 Right to File Claim.....................................................................................................2.1 13.4 Modification of Meet and Confer Deadlines .............................................................2.1 GOVERNING LAW............................................................................................................21 FORCE MAJEURE .........................................................................................................2..1.. SEVERABILITY ................................................................................................................2. 1 DUTIES OF SIGNATORIES..........................................................................................2..2.. BINDING UPON SUCCESSORS....................................................................................2..2. AUTHORITY TO ENTER AGREEMENT ........................................................................22 DRAFTING OF AGREEMENT.........................................................................................2. 2 NON-WAIVER OF BREACH ...........................................................................................2. 2 INTEGRATION CLAUSE ..................................................................................................23 AMENDMENTS OR MODIFICATIONS .......................................................................... 23 HEADERS IN THIS AGREEMENT .................................................................................. 23 SIGNATURE IN COUNTERPARTS ................................................................................. 23 TRANSMITTED COPIES ..................................................................................................23

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 5 of 30
This Class Action Settlement Agreement ("Agreement") is entered into by and between Cardtronics, Inc. and Cardtronics, LP (jointly "Cardtronics"), the Commonwealth of Massachusetts ("Commonwealth"), and the National Federation of the Blind ("NFB"), Adrienne Asch, Jennifer Bose, Bryan Bashin, Robert Crowley, Norma Crosby, Dwight Sayer, Terri Uttermohlen, and Raymond Wayne (the "Individual Plaintiffs"). The NFB and Individual Plaintiffs enter this Agreement individually and on behalf of a class of persons similarly situated (hereinafter referred to as the "Class" and defined below). Cardtronics, the Commonwealth, the NFB, and the Individual Plaintiffs (individually and on behalf of the Class) shall individually be referred to as a "Party" and jointly as the "Parties."
DEFINITIONS
"After-acquired ATM" means either a Cardtronics-owned ATM or a Merchantowned ATM in which Cardtronics first obtains an interest through Cardtronics' purchase of an ATM portfolio from a third party ATM operator or processor subsequent to the Effective Date or a Merchant-owned ATM for which Cardtronics otherwise becomes the operator or processor subsequent to the Effective Date.
" A T M means an Automated Teller Machine (9.v.).
"Automated Teller Machine" means a self-service electronic information processing device installed in public locations for the primary purpose of conducting consumer financial transactions directly through the device. Such consumer financial transactions may include not only typical banking type transactions such as cash withdrawals from accounts, deposits to accounts, reports of account balances, transfers between accounts, and other routine banking transactions; but may also include the payment andlor purchase of goods and services through the device, such as, for example, the purchase of stamps and movie tickets, as well as the payment of utility and cellular telephone bills.
"BASC ATMs" means Cardtronics-owned ATMs that Cardtronics acquired in a transaction with BASC that do not exceed in number 177 ATMs.
"Blind" means total blindness or central vision acuity not to exceed 201200 in the better eye, with corrective lenses, as measured by the Snellen test, or visual acuity greater than 201200, but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle not greater than 20 degrees.
"Cardtronics-owned ATM" means an ATM that Cardtronics owns, including those ATMs that were the subject of the Partial Settlement Agreement.
"Class" means all persons who are Blind patrons of Covered ATMs.
"Class Counsel" means Daniel F. Goldstein of the law firm Brown Goldstein & Levy LLP, Baltimore MD, Christine Netski of the law firm Sugarman, Rogers, Barshak & Cohen, P.C., Boston, MA, and Timothy Fox and Amy Robertson of the law firm Fox & Robertson, Denver CO.

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 6 of 30

"Class Representatives" mean the persons and/or entities appointed as Class Representatives by the Court.

"Counsel" means: for the Commonwealth, the Attorney General of the Commonwealth of Massachusetts or an Assistant Attorney General acting as her designee; for NFB, Daniel F. Goldstein of the law firm Brown Goldstein & Levy LLP, Baltimore MD; and for Cardtronics, Douglas P. Lobe1 of the law firm Cooley Godward Kronish LLP, Reston VA, and Joseph I. Kociubes of the law firm Bingham McCutcheon LLP, Boston MA.

"Court" means the U.S. District Court for the District of Massachusetts, and specifically the Honorable U.S. District Judge Morris E. Lasker or his designated successor.

"Covered ATM" means any (1) Cardtronics-owned ATM, Merchant-owned ATM or BASC ATM as of the Effective Date or (2) any After-acquired ATM; provided, however if in the future Cardtronics provides ATM maintenance, armored courier, or processing services not as an ISO, but solely as a third party service provider, any ATM at which Cardtronics provides such third party services shall not be considered a Covered ATM. For the purpose of this definition, any ATM that is now or hereafter registered with any Network or sponsoring financial institution and such registration shows or reflects that Cardtronics is the IS0 for that ATM, such ATM shall be considered a Covered ATM.

"Defendants" means E*TRADE and Cardtronics, the co-defendants in the Lawsuit. When used in the singular, "Defendant" means any one of the four corporate codefendants.

"DOJ Standards" means the Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, app. A.

"E*TRADEVmeans E*TRADE Access and E*TRADE Bank.

Lawsuit.

"E*TRADE Access" means E*TRADE Access, Inc., a co-defendant in the

"E*TRADE Bank" means E*TRADE Bank, a co-defendant in the Lawsuit.

"Extended Service Program" means an agreement between Cardtronics and a Merchant wherein Cardtronics promises to perform certain maintenance procedures on a Merchant-owned ATM.

"Final Approval" means the approval of this Agreement by a United States District Judge by signature of an order in a form substantially similar to that submitted by the Parties that, among other things, attaches this Agreement as an exhibit, retains jurisdiction for the Court for the Term of this Agreement in order to enforce this Agreement, and has become final and non-appealable.

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"High Volume Merchants" means the owners of the smallest subset of Merchantowned ATMs without Voice guidance on the Effective Date that collectively account for 80% of all transactions at Merchant-owned ATMs for the previous calendar year.
"Individual Plaintiffs" means Adrienne Asch, Jennifer Bose, Bryan Bashin, Robert Crowley, Norma Crosby, Dwight Sayer, Terri Uttermohlen, and Raymond Wayne.
"ISO" shall mean an entity, such as Cardtronics, that is sponsored by a financial institution and is registered with one or more Networks and through such sponsorship and registration is able to facilitate Transactions at an ATM.
"Lawsuit" means the case Commonwealth of Mass. v. E*TRADE Access, Inc., No. 03-11206 (MEL) now pending in the U.S. District Court for the District of Massachusetts.
"Massachusetts state law" means any statutory, administrative, municipal or common law of the Commonwealth of Massachusetts or any governmental entity therein, including but not limited to the Massachusetts Public Accommodations Act, Mass. Gen. Laws,
ch. 272, $8 92A and 98, and the Massachusetts Anti-Discrimination Act, Mass. Gen. Laws, ch.
151B.
"Merchant" means the independent third party that owes, leases, or otherwise manages a Merchant-owned ATM.
"Merchant-owned ATM" means an ATM that Cardtronics does not own (that is, not Cardtronics-owned) and to which Cardtronics, in its capacity as an ISO, provides processing services and sometimes ancillary services such as maintenance and repair or armored services.
"Networks" shall mean any of the various electronic fund transfer networks, including without limitation Cirrus, Mastercard, Maestro, Plus, Pulse, Visa and NYCE.
"Partial Settlement Agreement" means the Partial Settlement Agreement executed June 9, 2003, among the Commonwealth, NFB, and E*TRADE, in which Cardtronics is the successor in interest to E*TRADE.
"Parties" means the Commonwealth, NFB, the Individual Plaintiffs, and Cardtronics.
"Plaintiffs" means the Commonwealth, NFB, and the Individual Plaintiffs. When used in the singular, "Plaintiff' means any one of these individuals or entities.
"Private Plaintiffs" means NFB and the Individual Plaintiffs.
"PSA" means the Partial Settlement Agreement (9.v.).
"Settlement Date" is April 9, 2007.

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"Title I11 of the ADA" means Title I11 of the Americans with Disabilities Act, 42
U.S.C. $ 5 12181 - 12189, and any implementing regulations including but not limited to 28
C.F.R. Part 36, including Appendix A, the DOJ Standards.
"Transaction" means a consumer financial transaction, including typical banking type transactions such as cash withdrawals from accounts (without regard to whether such activity was denied because of the lack of funds), deposits to accounts, report of account balances, transfers between accounts and other routine banking transactions, and the payment and/or purchase of goods and services, such as the purchase of stamps and movie tickets and the payment of utility and cellular telephone bills.
"Upgradeable ATM" means an ATM for which there is a commercially available kit to make that particular make and model ATM capable of Voice guidance.
"Voice-guided" and "Voice guidance," as to an ATM, means dynamic computersynthesized, digitized human, or recorded audible instructions provided to a Blind patron through a standard headphone jack located on the face of an ATM that has the following features: (1) speech output; (2) tactilely discernible controls; (3) ensures the privacy of the audible output of information as long as the customer does not unplug the earphone mid-Transaction; (4) provides the same degree of privacy of user input as is provided to sighted users; (5) allows the user to review and correct entries without canceling the entire Transaction to the same extent that sighted users of the ATM can so review and correct entries for the particular Transaction; (6) provides audible Transaction prompts to enable completion of each step in the particular Transaction; (7) provides audible operating instructions and orientation to machine layout; (8) allows the user to interrupt audible instructions; (9) repeats audible instructions; and (10) provides audible verifications for all inputs, except that entry of the personal identification number need not be verified audibly with numbers. ATM functions do not include advertising posted on or near the ATM or that might be displayed on the ATM screen. Voice guidance shall be provided in English and may, at Cardtronics' sole discretion, be provided in one or more other languages. Voice guidance does not include provision of the headphone to be plugged into the ATM's jack, which headphone shall be the sole responsibility of the customer. An ATM is deemed to have Voice guidance if all of the necessary hardware and software have been built into or installed on the ATM and the Voice guidance successfully operates, subject to Subsection 4.4.3 and Section 15.
"Wholesale Cost" means, as to an ATM, the net price paid by Cardtronics to a manufacturer or distributor for the purchase and delivery of an ATM to a merchant.
PREAMBLE
WHEREAS, Cardtronics operates a nationwide fleet of ATMs consisting of Cardtronics-owned ATMs and Merchant-owned ATMs;
WHEREAS, the Parties seek to secure equal access to ATMs by Blind patrons through Voice guidance on terms that are reasonable and fair;

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WHEREAS, on or about June 9, 2003, the Parties agreed to the Partial Settlement Agreement that provides for the implementation of Voice guidance on some Cardtronics-owned ATMs;
WHEREAS, the Parties are involved in the Lawsuit that concerns the extent to which the ADA and/or Massachusetts state laws may require Voice guidance on ATMs, and in the lawsuit, the Plaintiffs seek both injunctive relief as well as damages under Massachusetts state laws;
WHEREAS, the Parties desire to resolve amicably all matters between them, including, but not limited to, any matters arising out of or related to the Lawsuit, and to avoid the further expense and inconvenience of the Lawsuit;
WHEREAS, the terms and conditions of this Agreement have been agreed to after and as a result of arms-length negotiations between and among the Parties, in which the Parties consulted counsel of their choice;
WHEREAS, the Parties agree that this Agreement involves the mutual exchange of promises and obligations that are in exchange for and in settlement of claims and liabilities of potentially substantially greater values, where such claims and liabilities have been discounted by the Parties in their judgment as to the risk of success or failure in judicial proceedings and the time-value of such judgments should they ever be rendered;
WHEREAS, Class Counsel conducted an extensive investigation of facts, circumstances, and law underlying the issues raised in the Lawsuit and based on the facts and applicable law, and upon consideration of the benefits this Agreement affords the Class Representatives and the Class, Class Counsel considers it to be in the best interests of the Class to enter into this Agreement;
THEREFORE, in consideration of mutual exchange of promises, covenants and releases herein, the receipt and sufficiency of which the Parties acknowledge, the Parties agree to the following:
MUTUAL PROMISES
1. EFFECTIVE DATE
Section 2 of this Agreement shall be effective immediately the last date any of the signatories, set forth at the end of this Agreement, execute this Agreement. The remaining provisions of this Agreement shall be effective immediately upon Final Approval. The Agreement shall continue in effect until terminated in accordance with the provisions herein.

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2. PROCEDURES FOR CLASS-WIDE SETTLEMENT

2.1. Amendment of Complaint

Cardtronics agrees to withdraw its opposition to Plaintiffs' motion for leave to file the Fourth Amended Complaint.

2.2. Certification of Class

The Parties agree to request that the Court certify a class pursuant to Fed. R. Civ. P. 23(b)(2) for the purposes of settling the Lawsuit on a class-wide basis, and further agree that the Court should appoint NFB, Adrienne Asch, Jennifer Bose, Bryan Bashin, Robert Crowley, Terri Uttermohlen, Norma Crosby, Dwight Sayer, and Raymond Wayne as Class Representatives.

2.3. Other Pending Motions

Except as provided in subsections 2.1 and 2.2, the Parties agree to request the Court to stay resolution of all pending motions and, upon Final Approval, to dismiss all such motions as moot.

2.4. Preliminary Approval

As a condition of settlement, the Parties agree that Plaintiffs shall file an unopposed motion with the Court for entry of a Preliminary Approval Order that:

a. Finds that this Agreement has been negotiated in an arm's-length manner and that the Agreement is fair, reasonable and adequate;

only;

b. Provides that the Class will be certified for the purposes of settlement

c. Holds that the manner of notice described herein is the only notice required, and that such notice satisfies the requirements of due process and Fed. R. Civ. P. 23;

d. Holds that the procedures for Class Members to oppose this Agreement are fair, reasonable and adequate; and

e. Schedules a hearing for Final Approval of this Agreement.

2.5. Notice by Publication

Because class certification is sought solely pursuant to Fed. R. Civ. P. 23(b)(2),
notice to class members of the certification is not required and class members may not opt out.
See Fed. R. Civ. P. 23(b)(2); Newberg on Class Actions, 5 8.13. The parties therefore agree that
notice need not be given of the certification of the class. Rule 23(e) provides that notice of the

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proposed dismissal or compromise of a class action shall be given to all class members in such manner as the court directs. The parties agree to cooperate in the drafting of a notice ("Notice") that satisfies the requirements of Rule 23(e). The parties further agree that notice as required by Rule 23(e) can be achieved in this case by Cardtronics (1) making the Notice and this Agreement available on its website; (2) mailing a copy of the Notice to the list of organizations attached hereto as Exhibit A; and (3) publishing the Notice as a one-half page advertisement in the Braille Monitor and the Braille Forum and as one-eighth page advertisements in the classified ad
sections of The New York Times, Los Angeles Times, and USA Today. Cardtronics shall
undertake appropriate notice as described herein and shall bear the cost of doing so.
2.6. Objections to Agreement
Class members who wish to object to approval of this Agreement must provide notice of and explanation of their objection in writing to the Court, with copies to all Counsel, no later than forty-five (45) days after publication of the Notice described herein. Objections received by the Court after this deadline shall be deemed untimely and shall be disregarded. Only those Class members who file timely written objections shall have the right, and only if they expressly seek it in their objection, to present objections orally at the Final Approval Hearing. The parties shall respond to any objections by a date no later than fifteen (15) days prior to the Final Approval Hearing.
2.7. Final Approval Hearing and Final Judgment
The Parties shall petition the Court to hold a Final Approval Hearing and enter a Judgment on a date not less than seventy-five (75) days after publication of the Notice described herein. No later than ten (10) days before the Final Approval Hearing, the Parties shall furnish the Court a proposed Final Judgment requesting, on behalf of the Parties, entry of the Final Judgment in this Lawsuit. The proposed Final Judgment shall:
a. Find that the Notice published to the Class satisfies the requirements of due process and Fed. R. Civ. P. 23;
b. Find that this Agreement is a fair, reasonable and adequate settlement of all of the claims of the Class against the Defendants, reject and overrule any objection to this Agreement, find that each Class member shall be bound by this Agreement including its release, and conclude that this Agreement should be and is approved;
c. Dismiss the Lawsuit on the merits and with prejudice as to all claims in the Lawsuit against all of the Defendants;
d. Retain jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation and enforcement of this Agreement; and
e. Attach and incorporate by reference the terms of this Agreement.

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2.8. Right to Withdraw from Settlement
In the event any court disapproves of or sets aside this Agreement or any material part hereof for any reason, including a refusal to certify the Class, or a refusal because Notice is deemed insufficient, or holds that it will not enter or give effect to the Final Judgment in substantially the same form described herein, or holds that the entry of the Final Judgment or any material part thereof should be overturned or modified in any material way, then:
a. The Parties shall first meet and confer to attempt to address any shortcomings in the Agreement identified by the court and, if it is possible to reach agreement on terms that accomplish this end, jointly request leave to resubmit the revised agreement for approval substantially as set forth in Subsection 2.4.
b. If the Parties are unable to reach agreement as contemplated in Subsection 2.8.a, they agree jointly to appeal such ruling to the United States Court of Appeals for the First Circuit.
c. If, following such appeal, the Final Judgment or its equivalent in all material respects is not in effect after the termination of all proceedings arising out of such appeal, this Agreement shall become null and void; the Lawsuit may continue; and any and all orders entered pursuant to this Agreement shall be vacated and the Lawsuit shall return to its status prior to the Settlement Date.
2.9. Prior Court Orders
The Parties shall not request the Court to vacate or withdraw any orders entered by the Court in the course of this litigation.
2.10 Best Efforts
The Parties shall cooperate fully with each other, and shall use their best efforts to obtain Court approval of this Agreement and all of its terms and to defend this Agreement from any legal challenge, whether by appeal or collateral attack.
3. VOICE GUIDANCE IMPLEMENTATION
3.1. Cardtronics-Owned ATMs
By December 31, 2007, all Cardtronics-owned ATMs then currently in service on that date shall be Voice-guided, except (1) 1644 Cardtronics-owned Wincor ATMs, deployed in Target stores as of the Settlement Date, need not have audible verification of all inputs to qualify as Voice-guided hereunder, and (2) by June 30, 2008, all BASC ATMs then currently in service on that date shall be Voice-guided. Subject only to Subsection 3.6 with respect to After-acquired ATMs, every Cardtronics-owned ATM installed after the Settlement Date shall, upon installation, be Voice-guided.

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3.2. Merchant-Owned ATMs
3.2.1. As of the Settlement Date, Cardtronics shall sell or otherwise make available to merchants or other third parties only ATMs that are Voice-guided.
3.2.2. With respect to High Volume Merchants, within ninety (90) days of the Effective Date, Cardtronics shall initiate a marketing plan designed to maximize the availability of Voice guidance on High Volume Merchant-owned ATMs. As part of this plan, Cardtronics shall encourage and incentivize High Volume Merchants to execute a Cardtronics' standard ATM Processing Agreement. Upon each High Volume Merchant's execution of such ATM Processing Agreement, Cardtronics shall:
a. Upgrade with Voice guidance, at no cost to a High Volume Merchant, any High Volume Merchant-owned Upgradeable ATM; or
b. If the High Volume Merchant's ATM is not upgradeable, offer to sell to the High Volume Merchant a Voice-guided ATM at Cardtronics' Wholesale Cost.
Because the ATM market is highly competitive and High Volume Merchants have many options, Commonwealth and NFB recognize that Cardtronics cannot predict the degree of success of its marketing plan and therefore Cardtronics does not represent or warrant any prediction or estimate as to the degree of success thereof.
3.3. July 1,2010 Deadline
3.3.1. Without regard for the success of the marketing plan to High Volume Merchants, by July 1, 2010, at least ninety percent (90%) of all Transactions at Covered ATMs shall occur on ATMs that are Voice-guided or otherwise accessible to Blind people as provided in Subsection 5.1. Furthermore, by July 1, 2010, a at least ninety percent (90%) of all Transactions occurring within the borders of Massachusetts at then-operating ATMs (including both Cardtronics-owned ATMs and Merchant-owned ATMs) shall occur on ATMs that are Voice-guided or otherwise accessible to Blind people as provided in Subsection 5.1.
3.3.2. On or after July 1,2010, Cardtronics shall not execute any new contract or renew any existing contract with any merchant unless that merchant's ATMs are Voice-guided or otherwise accessible to Blind people as provided in Subsection 5.1.
3.4. New Technologies
If any new technology, other than Voice guidance, becomes commercially available that is capable of making the instructions and all information for use at ATMs accessible to and independently usable by Blind patrons, Cardtronics may use that new technology in lieu of Voice guidance. Before using any new technology in lieu of Voiceguidance, Cardtronics shall obtain NFB's one-time prior written consent (effective for all future uses of the new technology), in addition to that of the Commonwealth to the extent Cardtronics

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contemplates any impact on Massachusetts ATMs, which consent shall not be unreasonably withheld.

3.5 Termination of Partial Settlement Agreement

The Parties agree that the PSA is terminated in its entirety on the entry of Final Judgment.

3.6 After-Acquired ATMs

follows:

After-acquired ATMs shall be included in the requirements of this Section as

a. Within six months after the date on which Cardtronics first provides processing services to After-acquired Merchant-owned ATMs, it shall identify which such ATMs are owned by High-Volume Merchants and shall make the applicable offer required by subsection 3.2.2.

b. After-acquired Cardtronics-owned ATMs must be Voice-guided within twenty-four (24) months from the date Cardtronics obtains an interest.

c. After-acquired ATMs (Cardtronics-owned and Merchant-owned) acquired prior to January 1, 2009 count towards Cardtronics' compliance with the July 1, 2010, deadline set forth in subsection 3.3.

3.7 Advanced Functionality

If during the effectiveness of this Agreement or thereafter Cardtronics provides one or more new types of Transaction to sighted patrons at Cardtronics-owned ATMs and/or Merchant-owned ATMs that were not available at those particular ATMs as of the Effective Date, Cardtronics shall provide these same functions to Blind patrons at those ATMs within ninety (90) days, unless Cardtronics advises Counsel in writing that making the function accessible is not technically feasible without causing an undue economic burden or delay. In that event, Cardtronics shall notify Counsel of the particulars of the obstacles that prevent the provision of accessible new functions, and consult with Class Counsel, the Commonwealth and NFB with respect to possible alternatives. The Parties agree to work in good faith pursuant to the terms of the Dispute Resolution provision of this Agreement to reach an agreement as to whether new functions can be provided without undue economic burden or delay. Cardtronics shall encourage vendors to support such new functions through Voice guidance and, once the obstacles are eliminated, Cardtronics shall make such new functions accessible with commercially reasonable dispatch. If and when such new functions are added, the act of accessing any new function at the ATM shall be considered a Transaction. Advanced functionality shall not be deemed to include advertising functions, such as advertisements on the ATM screen that are not part of the usage instructions.

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3.8 Divested ATMs
Other than in connection with a sale by Cardtronics of all or substantially all of its ATMs, which transaction would be governed by paragraph 18 of the Agreement, if Cardtronics sells any Cardtronics-owned ATMs, or its interests in any Merchant-owned ATMs, to third parties, neither Cardtronics nor the new owner shall have any obligations under this Agreement with respect to the ATMs that are subject to the transaction.
3.9 Deadline
The Parties and the Court recognize that from time to time unforeseen events, such as exigent business circumstances, labor disputes, natural disasters, personnel issues, and negotiations with third parties, cause delays in the accomplishment of objectives no matter how well intentioned and diligent the Parties may be. Accordingly, with regard to the provisions of this Agreement that require that certain acts be taken within specified periods, the Parties understand and agree that Court approval shall not be required for reasonable extensions of deadlines. In the event that any Party determines that an action required by this Agreement cannot be taken within the specified time period, that Party shall promptly notify the other Parties that it anticipates a delay, the reasons for the delay and a proposed alternative deadline. The Parties shall endeavor to cooperate in reasonably rescheduling such deadlines. However, if the other Party does not agree to the proposed delay, the Parties shall submit the matter to Dispute Resolution.
4. MISCELLANEOUS IMPLEMENTATION REQUIREMENTS
4.1 Web-Based List
Within thirty (30) days of the Effective Date, Cardtronics shall maintain on its Internet-based ATM locator an easily-understood symbol that is accessible to Blind people that will identify whether a particular ATM is Voice-guided.
4.2 Signage
Each Voice-guided Cardtronics-owned ATM and Merchant-owned ATM shall have a sign that identifies to Blind persons that the ATM is a Voice-guided ATM. The signage attached hereto as Exhibit B, or one materially similar, shall be deemed to be fully compliant with these requirements.
4.3 Reserved.

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4.4 Notification, Verification and Monitoring
4.4.1 Reporting
In the form of Excel spreadsheets, which can be electronically transmitted, Cardtronics shall provide the following reports to Class Counsel both on a national and Massachusetts basis and that account for After-acquired ATMs in accordance with this Agreement:
4.4.1.1 Fifteen (15) days before the hearing on Final Approval, (1) a list of the Covered ATMs, identifying whether each is Cardtronics-owned, Merchant-owned or a BASC ATM, providing its location and indicating whether it is Voice-guided and (2) a list of the High Volume Merchants, identifying which ATMs are Upgradeable and reflecting the percentage of transactions each ATM accounted for during the previous calendar year. If any of the information required by the preceding sentence has changed by the Effective Date, then fifteen (15) days after the Effective Date, Cardtronics shall update the report to reflect the accurate information regarding the Covered ATMs as of the Effective Date.
4.4.1.2 Forty-five (45) days after the end of the second calendar quarter following the Effective Date, and each quarter thereafter through July 1, 2010, (1) a list of High Volume Merchants to which Cardtronics has offered the options set forth in 3.2.2, providing the location of each ATM and whether the ATM is Voice-guided; and (2) a list of all Covered ATMs by location, identifying whether each is Voice-guided and reflecting for each ATM and cumulatively, the percentages of all Transactions at Covered ATMs that have occurred on Voiceguided ATMs during the previous quarter.
4.4.1.3 Forty-five (45) days after the end of any calendar year, a list of the High Volume Merchants based on the previous calendar year's Transactions, providing the location of each ATM and identifying which are Voice-guided.
4.4.1.4 By January 31, 2008, a list of all Cardtronics-owned ATMs, other than BASC ATMs, providing the location of each ATM and identifying which are Voiceguided.
4.4.1.5 By December 3 1, 2008, a list of BASC ATMs identifying which were Cardtronics-owned as of June 30, 2008 and the date on which each such ATM was made Voice-guided.
4.4.1.6 By August 15, 2010 and each quarter thereafter until the earlier of (1) the expiration of this Agreement or (2) the third consecutive quarter in which 95% of all Transactions are performed on Covered Voice-guided ATMs, a list of all Covered ATMs, whether each is Voice-guided and the percentage of transactions done on Voice-guided machines in the previous quarter. If 95% of all Transactions are performed on Covered Voice -guided ATMs for three consecutive quarters, then the list shall thereafter be provided only annually. (Each such report shall be issued within forty-five (45) days following the applicable quarter andlor year.) For each ATM lacking Voice guidance, the list shall state whether the ATM is After-acquired and the date it became After-acquired. For each After-acquired ATM lacking

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Voice guidance, the list shall state, in the case of Cardtronics-owned ATMs, the estimated date Cardtronics shall install a Voice-guided ATM and, in the case of Merchant-owned ATMs, the date on which the contract will either renew or expire. At such time as 100% of all Transactions in a calendar quarter are executed on Voice-guided ATMs, Cardtronics shall only report thereafter (1) a list of After-acquired ATMs without Voice guidance, the date of acquisition and, if Cardtronics-owned, the date Cardtronics shall install a Voice-guided ATM and, if Merchantowned, the date on which the contract will either renew or expire and (2) any After-acquired ATMs previously reported as without Voice guidance that have since become Voice-guided.
4.4.2. Verification.
4.4.2.1. Cardtronics shall, with each Report set forth in Subsection 4.4.1 verify to Class Counsel and Counsel for the Commonwealth that the results of the Report comply with the requirements of Section 3 of the Agreement. Cardtronics shall inspect a sample of its portfolio of ATMs from time to time to verify continuing compliance including with Section 4.4.5 of the Agreement. Cardtronics shall use either its own technicians or service vendors to report on the operating condition of Voice guidance on a randomly selected group of ATMs. The group of ATMs shall change with each report. Cardtronics shall select the appropriate number of ATMs to be included in the sample analysis each quarter so that the quarterly expense of the monitoring effort will be no greater than $2,500. At the time any ATM is installed as contemplated by Subsections 3.1, 3.2.1 or 3.2.2(b) or upgraded as contemplated by Subsection 3.2.2(a), the individual who performs the installation or upgrade shall test the ATM using the form attached hereto as Exhibit C, and shall sign and date the form. Cardtronics shall report the results of its monitoring efforts to Class Counsel and Counsel for the Commonwealth with each Report and attach copies of forms received during that reporting period from its installers.
4.4.2.2 Upon request of Class or Commonwealth Counsel, Cardtronics shall (1) produce for inspection and copying all documentation which may be pertinent to a determination by the Plaintiffs of whether Cardtronics has complied with the terms of this Agreement, and (2) cooperate in providing the Plaintiffs with reasonable access to Cardtronics employees with knowledge that may assist the Plaintiffs in determining whether Cardtronics has complied with the terms of this Agreement.
4.4.3 Maintenance and Responding to Consumer Calls
4.4.3.1 ATMs required to be Voice-guided by this Agreement shall remain Voice-guided at all times during the term of this Agreement, provided that isolated or temporary interruptions in service due to maintenance or repairs or isolated instances of mechanical failure shall not be a violation of this Agreement, provided further that allowing Voice guidance to remain out of service on an ATM beyond a reasonable period of time and/or repeated mechanical failure due to improper or inadequate maintenance shall constitute a violation of this Agreement. Nothing in this Agreement shall be construed to impose any maintenance or repair obligations on Cardtronics for a Merchant-owned ATM if the Merchant does not have an Extended Service Program contract with Cardtronics.
4.4.3.2 Upon receipt of any call or report that a Cardtronics-owned ATM, which has been listed by Cardtronics as Voice-guided, is not properly operating with

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respect to Voice guidance, Cardtronics shall designate a service technician to repair same within seventy-two (72) hours of receipt of such request. The same standard shall apply to any Merchant-owned ATM if the Merchant has purchased an Extended Service Program from Cardtronics. Transactions at an inoperative or malfunctioning ATM shall not count towards measurement of the 90% threshold (set forth in Section 3.3 above).
4.4.4 Monitoring
4.4.4.1 The Parties agree that NFB shall act as the "Monitor". For each ATM tested, Cardtronics shall pay NFB a flat fee of $200, within thirty (30) days after presentation of an invoice. Each invoice shall identify the ATM(s) tested and the date(s) of the test(s), and each invoice shall be uniquely numbered so as to allow tracking of invoices. Notwithstanding anything to the contrary in this Section 4.4.4 or in any other provision of this Agreement, Cardtronics shall be obligated to pay no more than $30,000 for any and all NFB ATM tests or inspections during the first year of monitoring, no more than $20,000 for the second year of monitoring and no more than $7500 for the third and each remaining year of the Agreement. Each invoice should be sent to: Cardtronics, 3110 Hayes Road, Suite 300, Houston, Texas Attn: KC Foreman.
4.4.4.2 To verify compliance, within 180 days of receipt of the Report listed in Subsection 4.4.1.1, NFB shall, both on a Massachusetts and on a national basis test operating ATMs equal to one percent of the ATMs listed on that report as Voice-guided to determine whether each is, in fact, Voice-guided. Within 180 days of receipt of any other Report listed in Subsection 4.4.1, the Monitor will test the greater of 28 operating ATMs or operating ATMs equal to one percent of the ATMs that that are newly identified as Voice-guided.
4.4.4.3 Within thirty (30) days of completing the tests on any Report the Monitor will notify Cardtronics, Counsel for the Commonwealth and Class Counsel of the results of the tests.
4.4.4.4. Within thirty (30) days of receipt of the notice from the Monitor, Cardtronics will bring into compliance with this Agreement any ATM that the Monitor reports to be out of compliance and will so notify Class Counsel, Counsel for the Commonwealth, and the Monitor. Nothing in this paragraph 4.4.4.4 shall preclude Cardtronics from removing or 'delisting' an ATM previously reported as being 'Voice-guided', so long as such correction does not cause Cardtronics to be in noncompliance with Section 3.
4.4.5 Training
Cardtronics shall train its employees who have regular contact with customers regarding customer use and operation of Voice-guided ATMs in accordance with its normal training procedures.

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5. CHANGES IN LAWS GOVERNING ACCESSIBILITY OF ATMS
5.1 New Laws
The Parties acknowledge that after the Effective Date, new statutes or regulations may establish standards for accessibility of ATM services to Blind persons that might be different from Cardtronics' obligations under this Agreement. The Parties agree that if the new law or regulation directly addresses an obligation imposed upon Cardtronics by this Agreement, the new law or regulation shall control; provided, however, that to the extent any new regulation creates a safe harbor for non-Voice-guided ATMs or establishes a schedule for Voice guidance slower than that required by this Agreement, this Agreement shall control and, in no event, shall the level of access to andlor independent use by Blind persons be lower than that required by this Agreement.
5.2 Notice of Modification of Agreement
If any Party contends that there is a change in any applicable statute or regulation that directly addresses Cardtronics' obligations under this Agreement, that Party shall notify the other Parties in writing with a statement describing (a) the new statute or regulation; (b) the effect of the new statute or regulation on Cardtronics' obligations under this Agreement; and (c) the necessary modifications to this Agreement. The proposed modifications shall become effective thirty (30) days after such notification, unless another Party objects in writing to the proposed modifications. In the event of disagreement between the Parties over the appropriate modifications to this Agreement as contemplated by this section, the Parties shall meet and confer in good faith to resolve the disagreement. Failure to reach an agreement shall be considered a dispute to be resolved pursuant to Section 13 of this Agreement.
6. NO ADMISSION OF LIABILITY
6.1 Purpose of Agreement Is To Avoid Further Litigation
This Agreement constitutes a compromise of disputed claims between Plaintiffs and Defendants, and the Parties enter this Agreement solely to terminate all controversies currently pending between them and to avoid the expense, inconvenience and further litigation, without admission of any liability whatsoever by Cardtronics.
6.2 No Admissions
In entering into this Agreement, Cardtronics does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the ADA, any regulations or guidelines promulgated pursuant to the ADA, Massachusetts state laws, or any other applicable laws, regulations or legal requirements in regard to Cardtronics-owned ATMs or Merchant-owned ATMs. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Cardtronics of any such violations or failures to comply with any applicable law. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 20 of 30
be construed as an admission or concession by Commonwealth or NFB with respect the requirements of any applicable law or Cardtronics' compliance with such applicable law in regard to Cardtronics-owned ATMs or Merchant-owned ATMs.
6.3 No Use of Agreement
The Parties agree that this Agreement shall not be used by NFB or the Commonwealth in any legal, regulatory, equity or administrative proceeding in which Cardtronics is a party, as evidence of any stipulation or agreement by Cardtronics as to the meaning or requirements of Title I11 of the ADA.
6.4 No Effect of Court Approval or Rejection
The Parties agree that Court approval of this Agreement shall not be deemed to constitute any finding, conclusion, or holding as to the meaning of Title I11 of the ADA or of Massachusetts state law. If the Court does not approve this Agreement, or if any of the Parties withdraw from this Agreement at any time to the extent permitted herein, this Agreement and any negotiations or communications related thereto shall not be interpreted as any admission by any Party of any fact, legal principle, or conclusion. If, for any reason, settlement is not effectuated or Final Judgment is not entered pursuant to this Agreement, no evidence of this Agreement or of the Preliminary Approval Order or Final Judgment, as proposed or as actually entered by the Court, shall be admissible in the Lawsuit or in any other action in which Cardtronics is a party.
7. RELEASE
7.1 Scope of Release
7.1.1. "Released Claims" 'means any and all demands, claims, actions, causes of actions, suits, debts, covenants, contracts, agreements, promises, judgments whatsoever, whether or not known or unknown and whether or not such claims are legal, equitable, administrative or of any other nature, for injunctive or declaratory relief, that the Plaintiffs may have had, or may have as of the Effective Date, against Cardtronics concerning the accessibility of Cardtronicsowned ATMs and Merchant-owned ATMs to the Blind. Released claims include, but are not limited to and by way of example only, claims under Title I11 of the ADA, the Massachusetts Public Accommodations Act and the Massachusetts Equal Rights Act. Released claims include any claims arising under or related to the PSA.
7.1.2. Released Claims also include any claims of the NFB or Individual Plaintiffs for monetary damages of any kind, including punitive or exemplary damages.
7.1.3. Released Claims do not include any claims of Class Members other than the Individual Plaintiffs for monetary damages of any kind, including punitive or exemplary damages.

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 21 of 30
7.1.4. Released Claims also include any claims for injunctive or declaratory relief concerning the accessibility of Cardtronics-owned ATMs and Merchant-owned ATMs to the Blind arising under any state or local statutory, administrative, regulatory or code provisions that either (a) directly incorporate Title I11 of the Americans with Disabilities Act or (b) set forth standards or obligations coterminous with or equivalent to Title I11 of the Americans with Disabilities Act.
7.1.5. Except as otherwise expressly provided herein, the Released Claims also include any and all claims for attorneys' fees, expenses, costs or disbursements incurred by Counsel and any other counsel representing Plaintiffs or Class members, or by Plaintiffs or Class members, or any of them, in connection with or related in any manner to the Lawsuit, this Agreement, or the prosecution of motions to obtain entry of Preliminary Approval and/or Final Judgment incurred prior to and including the date of Final Approval.
7.1.6. Released Claims also do not include an action for breach of this Agreement, which shall be the sole relief and remedy in the event any Plaintiff or Class member claims Cardtronics-owned or Merchant-owned ATMs are not accessible to Blind patrons.
7.2 Release of Claims
Plaintiffs and Class members hereby agree that upon entry of a Final Judgment they shall forever release, remise, acquit, satisfy, and discharge each Defendant (and any of each Defendant's respective parents, subsidiaries, affiliates, partners and its officers, directors, attorneys, employees, agents, successors, and assigns) from any and all Released Claims.
7.3 Covenant Not To Sue
Plaintiffs and the Class members hereby agree that they, acting individually or together, shall not seek to institute, maintain, prosecute, join, support, sue or assert in any action or proceeding, whether judicial or administrative, any of the Released Claims against another Party.
7.4 Subsequent Discovery
In connection with the release and covenant not to sue, Plaintiffs and the Class members acknowledge that they are aware that they may hereafter discover facts, actions, claims and causes of action presently unknown or unsuspected, or facts in addition to or different fi-om those which they now know or believe to be true with respect to the Released Claims. Nevertheless, it is the purpose of this Agreement and the intention of the Plaintiffs and Class members to settle and release such matters and all actions, causes, claims, and causes of action that are Released Claims.

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 22 of 30
7.5 Failure to Receive Notice
The failure of any Class member to receive actual notice or any other document describing this Agreement shall not be a basis for invalidating, waiving, abrogating, limiting, ignoring, or mitigating the effects of this Agreement.
7.6 Survival of Consumer Contracts
Nothing in this Agreement shall relieve any Plaintiff or Class member from his, her or its obligation to perform fully any consumer contract between him, her or it and any of the Defendants. All agreements for the purchase of Defendants' services heretofore made shall remain in effect, and each Defendant shall be entitled to enforce such agreements in accordance with their terms.
7.7 No Effect On Obligations Imposed In This Agreement
Notwithstanding anything stated to the contrary in this Agreement, all of the obligations and rights of the Parties under this Agreement shall expressly survive the release and covenant not to sue.
8. THIRD PARTY BENEFICIARIES
8.1 Acknowledge Beneficiaries
This Agreement, and the settlement contemplated therein, shall inure to the benefit of the Parties as well as each Defendant's respective parents, subsidiaries, affiliates, partners and its officers, directors, attorneys, employees, agents, successors, and assigns, all of whom shall be considered third-party beneficiaries of this Agreement. This Agreement also inures to the benefit of the Class members, each of whom shall be considered a third-party beneficiary.
8.2 No Other Beneficiaries
Except as expressly identified in the foregoing subsection, this Agreement shall not be construed to create rights in, or to grant remedies to, or to delegate or create any duty, obligation or undertaking established herein to any third party as a beneficiary of this Agreement.
9. ATTORNEYS FEES AND CONTRIBUTION TO THE COMMONWEALTH
9.1 Contribution to the Commonwealth
Cardtronics shall make a contribution of $100,000.00 to the Attorney General's local consumer aid fund. The amount shall be paid by check within ten (10) days of the Effective Date. Payment shall be delivered to Patricia Correa, Massachusetts Attorney General's Office, 100 Cambridge St., 1lthfloor, Boston, MA 02108.

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 23 of 30
9.2 Attorneys' Fees and Costs
Cardtronics shall pay NFB a total amount of $900,000.00 as reimbursement of its litigation costs, including attorney's fees, incurred in connection with the Lawsuit up to and including the date of Final Approval. The amount shall be paid by check or electronics fund transfer in two equal installments, with the first installment within ten (10) days of the Effective Date and the second installment 180 days thereafter. Payment shall be made to: National Federation of the Blind, 1800 Johnson Street, Baltimore, Maryland 2 1230, attention Marc Maurer.
10. NOTICE TO PARTIES
Any notice or communication required or permitted to be given to any one of the Parties shall be provided by electronic mail, by facsimile transmission, or by certified U.S. mail, addressed as follows:
To Commonwealth:
Office of the Massachusetts Attorney General Attn: Patricia Correa Assistant Attorney General 100 Cambridge Street, 11t" floor Boston, MA 02108 Fax No.: (617) 727-5762 Email: patty.Correa@ago.state.ma.us
To NFB:
Brown, Goldstein & Levy LLP Attn: Daniel F. Goldstein, Esq. 120 E. Baltimore Street Suite 1700 Baltimore, MD 21202 Fax No.: (410) 385-0869 Email: dfg@browngold.com
To Cardtronics:
Michael E. Keller General Counsel Cardtronics Inc. 3110 Hayes Road, Suite 300 Houston, Texas 77082 USA Fax No.: (281) 892-0102 Email: mkeller@cardtronics.com

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 24 of 30
Douglas P. Lobe1 Cooley Godward Kronish LLP
One Freedom Square 1 Reston Town Center
11951 Freedom Drive Reston, VA 20190 Fax No.: (703) 456-8 100 Email: dlobel@cooley.com
A party may amend the person to whom notices are to be made pursuant to this Section by written notice to all other parties.
11. DURATION AND TERMINATION
This Agreement shall remain in effect, in whole or in part, for eight years from the Effective Date of this Agreement, except that the Parties may agree in writing to extend the Agreement further or the Court may so order in connection with Subsection 13.3. Notwithstanding any expiration of this Agreement, Sections 6, 7 and 13 shall continue to remain in effect in perpetuity.
12. FURTHER ACTS
Each of the Parties, upon the request of any of the other Parties hereto, agrees to perfom such further acts and to execute and deliver such other documents as are reasonably necessary to carry out the provisions of this Agreement.
13. DISPUTE RESOLUTION
Any dispute between the Parties arising out of, or related to, this Agreement, once effective, shall be subject to the following dispute resolution process:
13.1 Notification of Non-Compliance and Opportunity to Cure or Address
If at any time a Party believes that another Party has not complied with any provision of this Agreement, the complaining Party shall deliver prompt written notice to the other Party, including: (a) a reference to the specific provisions of the Agreement that are the subject of the notice; (b) a statement of the issues; (c) a statement of the remedial action sought by the initiating Party; and (d) a brief statement of the specific facts, circumstances and any other arguments supporting the position of the initiating Party. The Party receiving this notice shall respond in writing to the notice within twenty (20) business days of its receipt. The response shall describe the steps that the receiving Party will take, if any, to cure the noncompliance.
13.2 Meet and Confer
Within twenty (20) business days after receipt of the response to the notice or as soon as practicable, the Parties shall meet and confer to attempt to reach an agreement regarding

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 25 of 30
the matters stated in the notice. If the Parties are able to agree upon the matters stated in the notice, they shall work together in good faith to resolve the matters stated in the notice and agree upon an appropriate modification of the Agreements.
13.3 Right to File Claim
If the Parties cannot resolve the matters stated in the notice within forty-five (45) days after they meet and confer, the Party who served notice may bring suit seeking damages, injunctive relief and/or specific performance of the Agreement in the United States District Court for the District of Massachusetts. For any dispute between NFB and Cardtronics arising under this Agreement, Court shall award reasonable attorneys' fees and costs in accordance with the prevailing party standards under the ADA. Cardtronics expressly consents to the entry of an injunction for specific performance of this Agreement if the court concludes Cardtronics breached its obligations under this Agreement.
13.4 Modification of Meet and Confer Deadlines
Any Party may agree to extend any of the deadlines for an opposing Party set forth in this section without the necessity of modifying this Agreement.
14. GOVERNING LAW
The terms and conditions of this Agreement shall be governed, interpreted and construed, and all disputes arising hereunder determined, in accordance with the laws of the State of Massachusetts, without regard to its choice of law rules.
15. FORCE MAJEURE
The performance of Cardtronics under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, malfunctioning or unavailability of parts, equipment or materials through normal supply sources, allegations of inhngement of intellectual property or the failure of any utility to supply its services for reasons beyond the reasonable control of Cardtronics. If Cardtronics seeks to invoke this Section for more than ten (10) ATMs at any one time, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action(s) that could not be performed and the specific reason(s) for the nonperformance. Pursuant to Section 13 of this Agreement, the Parties shall thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action.
16. SEVERABILITY
If one or more provisions of this Agreement are at any time found to be invalid by a court, tribunal or other forum of competent jurisdiction, or otherwise rendered unenforceable, such provision or provisions shall be severable from this Agreement so that the validity or

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 26 of 30
enforceability of the remaining provisions of this Agreement, shall not be affected thereby, unless the provision or provisions are essential and material covenants of this Agreement.
17. DUTIES OF SIGNATORIES
By signing this Settlement Agreement, each Signatory, on behalf of himself or herself or on behalf of the Party whom he or she represents, confirms and states that he or she has carefully read the Agreement and that he or she has obtained the advice of independent legal counsel in connection with the negotiation of this Agreement, and that he or she knows the contents of the Agreement. Each signatory further represents that he or she has been duly authorized on behalf of the Party that he or she represents to execute this Agreement on behalf of such Party and intends to commit, and hereby commits, the Party to be fully bound to this Agreement.
18. BINDING UPON SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective parents, subsidiaries, heirs, executors, personal representatives, affiliates, agents and general and limited partners, and their respective successors and assigns. Counsel for the Parties shall be notified in writing within thirty (30) days of the existence, name, address and telephone number of any successors and assigns.
19. AUTHORITY TO ENTER AGREEMENT
Each Party represents and warrants to the other Parties that it has the full power and authority to enter into this Agreement and any of the documents to be executed by it pursuant to this Agreement, that it has agreed to the terms of this Agreement and such other documents to be executed by it pursuant to this Agreement, and that this Agreement and such other documents have been duly authorized, executed and delivered by the representatives whose signatures are set forth below.
20. DRAFTING OF AGREEMENT
The Parties and their respective counsel have reviewed and revised this Agreement and the normal rule of construction, providing that any ambiguities are to be resolved against the drafting Party, shall not be employed in the interpretation of this Agreement.
21. NON-WAIVER OF BREACH
No breach of any provision of this Agreement can be waived unless done so expressly and in writing. Express written waiver of any one breach of this Agreement shall not be deemed a waiver of any other breach of any other provision of this Agreement.

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 27 of 30

22. INTEGRATION CLAUSE
All agreements, covenants, representations and warranties, express and implied, oral and written, of the Parties concerning the subject matter of this Agreement are contained or referred to in this Agreement. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any Party to the other Parties concerning the subject matter of this Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties concerning the subject matter of this Agreement, other than those referred to herein, are merged into this Agreement.
23. AMENDMENTS OR MODIFICATIONS
This Agreement shall not be modified, amended, changed or dissolved except in writing and signed by each of the Parties
24. HEADERS IN THIS AGREEMENT
This Agreement contains headings. The headings are for the convenience of reference only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement.
25. SIGNATURE IN COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an original and shall be deemed duly executed and effective upon the signing of the last counterpart by the Parties.

26. TRANSMITTED COPIES
For purposes of enforcing this Agreement, the Parties may enforce this Agreement by using a signature transmitted by facsimile or by electronic copy (e.g.,PDF file).

ON BEHALF OF THE COMMONWEALTH OF MASSACHUSETTS:

By: Print: Title: Dated:

,2007

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 28 of 30

ON BEHALF OF THE NATIONAL FEDERATION OF THE BLIND:

By:

Print: Title:

Dated:

,2007

ON BEHALF OF THEMSELVES: Adrienne Asch:

Dated:

Jennifer Bose:

Dated:

Bryan Bashin:

Dated:

Robert Crowley:

Dated:

Dwight Sayer:

Dated:

Raymond Wayne:

Dated:

Terri Uttermohlen:

Dated:

Norma Crosby:

Dated:

,2007 ,2007 ,2007 ,2007 ,2007 ,2007 ,2007 ,2007

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 29 of 30

ON BEHALF OF CARDTRONICS, INC. AND CARDTRONICS LP:

By:

Print:

Title:

Dated:

,2007

Case 1:03-cv-11206-NMG Document 312-5 Filed 08/17/12 Page 30 of 30
EXHIBITS Exhibit A-List of Organizations to receive a copy of the Notice (Section 2.5) Exhibit B- Approved signage (Section 4.3) Exhibit C- Installation certification (Section 4.4.2.1)

Case 1:03-cv-11206-NMG Document 312-6 Filed 08/17/12 Page 1 of 2
EXHIBIT F

Case 1:03-cv-11206-NMG Document 312-6 Filed 08/17/12 Page 2 of 2

 
 United States District Court

District of Massachusetts

________________________________

)

COMMONWEALTH OF MASSACHUSETTS, )

NATIONAL FEDERATION OF THE

)

BLIND, INC., NATIONAL FEDERATION )

OF THE BLIND OF MASSACHUSETTS, ) Civil No.

INC., ADRIENNE ASCH, TERESA

) 03-11206-NMG

JERADLI, PHILIP OLIVER and

)

JENNIFER BOSE,

)

Plaintiffs,

)

)

v.

)

)

E*TRADE ACCESS, INC., E*TRADE )

BANK, CARDTRONICS, INC.,

)

CARDTRONICS USA, INC. and

)

ELECTRONIC FUNDS TRANSFER

)

ASSOCIATION,

)

Defendants.

)

________________________________ )

MEMORANDUM & ORDER

GORTON, J.

Defendants own or operate approximately 47,500 ATMs

nationwide. As part of a 2007 class action settlement and 2010

Remediation Plan, both of which were approved by this Court, defendants agreed to take certain steps to accommodate blind

users. They have consistently failed to meet their agreed-upon

deadlines and plaintiffs now move for the imposition of sanctions

in accordance with this Court’s prior warnings to defendant.

For the reasons that follow, plaintiffs’ motion will be allowed and three of the four conditions proposed by plaintiffs

will be imposed. The fourth condition, a monetary fine, will be

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assessed in some significant amount but the exact amount will be determined on the basis of an upcoming hearing. I. Background
This class-action was brought under the Americans with Disabilities Act (“ADA”) by the National Federation of the Blind (“NFB”) and the Commonwealth of Massachusetts against the defendant owners and operators of ATM machines to make those machines accessible to the blind. In June, 2007, the parties entered into a Settlement Agreement requiring gradual but deliberate compliance with benchmarks leading toward complete access. The Court approved the Settlement Agreement later that year and retained jurisdiction over the case to interpret and enforce it. After three years of sporadic progress, the parties entered into and this Court approved a joint Remediation Plan which set forth more tangible requirements and deadlines.
In July, 2011, plaintiffs filed their first motion for contempt, alleging that defendants had failed to meet all but one of the ten requirements set forth in the Remediation Plan. After extended briefing by defendants, in December, 2011, the Court concluded that defendants’ failure to satisfy self-imposed deadlines first established by the 2007 Settlement Agreement and subsequently through the 2010 Remediation Agreement warranted civil sanctions. See Docket No. 308.
In spite of defendants’ consistent failure to make good upon
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its promises, the Court gave defendants until March 15, 2012 to
comply fully with all of its obligations under the Remediation
Agreement or face significant monetary sanctions. The Court
specifically instructed defendants that compliance required
defendants to install “enhanced scripts to enable voice guidance,
tactilely discernable controls and appropriate signage” on all
Cardtronic-owned ATMs not located in 7-Eleven stores and the
“inspection of all such ATMs to ensure that the newly installed
features are in working condition.”
Plaintiffs filed this second motion for contempt in August,
2012. They allege that, yet again, defendants have failed to
heed this Court’s warning and have not complied with eight of the
ten requirements imposed by the Remediation Plan. Several of the
failures identified by plaintiffs include:
1) the classification of ATMs with text-to-speech capability as “voice-guided” for purposes of the Plan, apparently reversing defendant’s prior position,
2) misleading correspondence from Cardtronics in March, 2012 that certified that their ATMs were 99.7% compliant, only to reverse that assurance in June, 2012 by identifying some 2,100 ATMs which had “operational issues” that rendered their voice guidance systems inoperable,
3) the acquisition of 9,100 new ATMs without requiring their compliance with the Remediation Plan, and,
4) perhaps most troubling, the failure to install Braille signage on all of its ATMs in accordance with the Plan despite this Court’s specific instruction to do so.
As a result of these alleged failures, plaintiffs ask the
Court to impose four sanctions: a) a fine of $50 per ATM per
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month as forewarned by this Court in its December, 2011 order; b) appointment of a special master to monitor more closely the enforcement of the terms of the Plan; c) extension of the monthly reporting requirements through March 31, 2014; and d) payment of attorneys’ fees and costs to plaintiffs.
Perhaps taking this Court’s prior admonishments to heart, defendants concede that they have failed to comply with the Remediation Plan and, reflective of that failure, consent to the imposition of three of the four sanctions proposed by plaintiffs. Defendants urge the Court not to impose monetary sanctions or at least to defer imposition thereof until a special master can make more specific findings regarding the extent to which sanctions are merited. In particular, defendants purport to have worked toward compliance with the Plan in good faith. II. Legal Analysis
This Court has already found that civil sanctions are warranted (per its December, 2011 order) but granted defendants’ request for a three-month reprieve on the basis of their assurance that they would be in compliance by March 15, 2012. Defendants’ continued failure to satisfy their obligations to plaintiffs and to this Court leave it with no alternative but to impose civil sanctions.
Consistent with the Court’s earlier finding, sanctions remain warranted because:
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1) defendants have long been aware that they are subject to the conditions and deadlines contained within the Remediation Plan;

2) they have had multiple opportunities to understand and implement the requirements of the Plan; and

3) having conceded their failure to meet at least some of the requirements imposed by the Plan, the defendants’ violation is clear and they must be prepared to face the consequences.

See Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 17 (1st Cir. 1991)

(listing three requirements for civil contempt finding).

Because the extent of defendants’ violation remains to be

ascertained, the Court will convene a hearing before determining

the amount of the monetary fine to be levied.

The Court will otherwise impose the conditions agreed to by

defendants, i.e. the extension of reporting requirements until at

least March, 2014, the appointment of a special master to insure

compliance with the Remediation Plan and the payment of

reasonable attorneys’ fees and costs associated with the filing

of this motion.

ORDER

In accordance with the foregoing, plaintiffs’ second motion

for contempt (Docket No. 312) is ALLOWED, subject to further

specificity to be determined after an upcoming hearing.

So ordered.

Dated March 21, 2013

/s/ Nathaniel M. Gorton Nathaniel M. Gorton United States District Judge

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 464 F.Supp.2d 52 (2006)
Commonwealth of MASSACHUSETTS, The National Federation of the Blind, Inc., The National Federation of the Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs,
Theresa Jeraldi, and Philip Oliver, Plaintiffs, v.
E*TRADE ACCESS, INC., E*Trade Bank, Cardtronics, LP, and Cardtronics, Inc., Defendants.
No. 03-CV-11206-MEL.
United States District Court, D. Massachusetts.
February 21, 2006.
534 *53 *54 Patricia Correa, Attorney General's Office, Anthony M. Doniger, Christine M. Netski, Sugarman, Rogers, Barshak & Cohen, Boston, MA, Daniel F. Goldstein, Sharon Krevor-Weisbaum, Brown, Goldstein & Levy, LLP, Baltimore, MD, Amy F. Robertson, Timothy P. Fox, Fox & Robertson, PC, Denver, CO, for Plaintiffs.
Douglas P. Lobel, Cooley Godward LLP, Reston, VA, Jenny K. Cooper, Joseph L. Kociubes, Bingham Mccutchen LLP, Boston, MA, Leigh-Ann M. Durant, Nixon Peabody, LLP, Boston, MA, for Defendants.
MEMORANDUM AND ORDER
LASKER, District Judge.
The Commonwealth of Massachusetts, the National Federation of the Blind, Inc., the National Federation of the Blind of Massachusetts, Inc., and a number of blind Massachusetts residents (collectively, "Plaintiffs") sue E*Trade Access, Inc. and E*Trade Bank (collectively, "E*Trade"), and Cardtronics, LP and Cardtronics, Inc. 55 (collectively, "Cardtronics")[1], alleging violations *55 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12182 and 12183. The Plaintiffs seek injunctive relief ordering the Defendants to modify their Automated Teller Machines ("ATMs") so that the blind may have access to and independently use such ATMs.
In February 2005, this Court denied E*Trade's motion for judgment on the pleadings. E*Trade asserted that judgment on the pleadings was appropriate because the Plaintiffs seek relief 0907 specifically, the installation of voice-guidance technology 0907 not required or authorized under the current implementing regulations of the United States Department of Justice ("DOJ"). While I found that the remedy of voice-guidance technology is neither mandated nor required by standard 4.34.5, I ruled that:
The Plaintiffs have put forward a legally sufficient claim that under the existing regulations the Defendants' ATMs are not accessible to or independently usable by the blind. It appears that the Plaintiffs may be able to prove a set of facts that would entitle them to some relief, aside from voice-guidance technology, required by the current DOJ regulations. Although their preferred remedy of voice-guidance technology is not available under the existing regulations, the Plaintiffs can seek "the necessary modifications to the ATMs they [E*Trade] operate or operate and lease, so that blind people may have access to and independently use these ATMs."
Order of February 22, 2005 at 9.
The Plaintiffs now move for partial summary judgment and declaratory and injunctive relief under Count V of the Third Amendment Complaint; the Defendants cross-move for summary judgment on Counts I through V.

I. Analysis
A. Count V
Count V alleges a violation of the ADA's new facilities mandate, 42 U.S.C. § 12183(a)(1). Discrimination for purposes of this subsection includes
a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter.
The Plaintiffs move for summary judgment on the grounds that blind persons do not have access to and cannot independently use Cardtronics-owned ATMs constructed or installed after January 26, 1993, and seek an injunction specifying that the ATMs be brought into compliance with the ADA Accessibility Guidelines ("ADAAG") standard 4.34.5. 28 C.F.R. § 36.401, App. A, 4.34.5 (1991).
Cardtronics responds that: (1) the Plaintiffs request an impermissibly vague and unenforceable "obey the law" injunction; and (2) the Plaintiffs present no factual basis justifying summary judgment on approximately 25,000 ATMs nationwide. Moreover, the Defendants submit that summary judgment should be granted in their favor on 56 Count V because § 12183(a)(1) does not apply to ATMs. According *56 to the Defendants, § 12183(a)(1) encompasses only the construction of facilities for occupancy, not devices that might later be affixed to such facilities.
The Plaintiffs' motion for summary judgment on Count V is DENIED, because genuine issues of material fact remain. While the Plaintiffs present evidence demonstrating that approximately one dozen tested ATMs fail to provide appropriate accommodations and instructions for use by blind individuals, they have made no systematic showing that the entire fleet of Cardtronics-owned ATMs is not accessible to and independently usable by the blind. Although it would be unreasonable and unnecessary to require the Plaintiffs to test every post-January 26, 1993 Cardtronics ATM in order to demonstrate non-compliance with § 12183(a)(1), at the least the Plaintiffs must present a more comprehensive showing that documents the specific types of accessibility problems or design defects encountered in a larger sample of ATMs nationwide, and that explains why and how it is appropriate to conclude that those documented problems pervade the entire Cardtronics fleet. Indeed, it may be that the information necessary to reach such a conclusion may be secured by the relatively simple devices of requests for admissions or interrogatories addressed to the Defendants. However, the Court cannot grant summary judgment as to 25,000 ATMs based only on an extrapolation from the extremely limited data of record. Accordingly, summary judgment for the Plaintiffs is DENIED without prejudice to renewal on the basis of a more substantial factual showing.
The Defendants' motion for summary judgment on Count V is also DENIED. The Defendants assert that § 121.83 (a)(1) concerns only the construction of buildings and other facilities for occupancy and does not reach devices, such as ATMs, that might later be affixed to such facilities. In support of this argument, Cardtronics first refers to the language of § 12183(a)(1) and contends that an ATM is manufactured rather than "constructed", and used rather than "occupied". Next, the Defendants point to the DOJ's implementing regulations, which measure the statutory requirement of "first occupancy" by the date that one obtains "building permits" or "certifications of occupancy" for the "facility", and which define "structural impracticability" in relation to "terrain". 28 C.F.R. §§ 36.401(a)(2) and 36.401(c)(1) (1991). The Defendants submit that the events of first occupancy and obtaining building permits clearly do not apply to ATM construction and installation, and that terrain affects only the design of a building, not the design of an ATM. Finally, the Defendants argue that the case law under § 12183 demonstrates that this section of the ADA applies only to the design of facilities for occupancy, and not to fixtures or devices like ATMs. See, e.g., Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F.Supp.2d 707, 710 (D.Colo.2004)(holding that § 12183(a)(1) does not apply to claims concerning alleged inaccessibility caused

by movable display racks inside a clothing retailer, because "[t]he legislative history bears out the argument that design and construction refers to actions taken during the building process").
Although these arguments command serious attention, I find that applicable DOJ regulations and interpretative guidelines demonstrate that the new construction mandate does apply to ATMs that are affixed to or built into facilities. DOJ regulations define "facility", for ADA purposes, as "all or any portion of buildings, structures, sites, 57 complexes, equipment, rolling stock or other conveyances, *57 roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located." 28 C.F.R. § 36.104 (1991). Interpretive guidance issued by the Access Board and adopted by the DOJ has specified that to be covered by ADAAG, equipment must be "fixed or built into the structure of a building". 56 Fed.Reg. 35,408 at *12 (July 26, 1991). ATMs fall within the category of built-in equipment subject to regulation under the statute. Id. at *28 (stating that "the legislative history of the ADA specifically mentions automatic teller machines (ATMs) as covered by the accessibility requirements"); see also ADA Title Technical Assistance Manual, § III-5.3000 (1994 Supp.), available at http://wvvw.ada. gov/taman3up.html ("Only equipment that is fixed or built in to the facility is covered by the accessibility standards (e.g., public pay telephones or built-in ATMs)."). Moreover, the Access Board's "Accessibility Guidelines Checklist For Buildings and Facilities", issued in October 1992 to help insure compliance with § 12183(a), includes a technical requirements survey form to assess whether ATMs comply with the statute's requirements. Survey form 22, entitled "Automated Teller Machines", specifically asks: "Are instructions and information for use made accessible to and independently usable by people with visual impairments?" Available at http://www. access-board.gov/adaag/checklist/ATMs. html.
In sum, relevant regulations and guidelines issued by the DOJ and the Access Board seem clearly to establish that built-in ATMs are facilities covered by the new construction mandate. The Defendants present no evidence suggesting that any ATMs at issue in this case are movable structures not contemplated during the building process, as was the case with the display racks at issue in Colorado Cross Disability Coalition. In fact, representations made to the Court indicate that the merchant-owned E*Trade ATMs are "typically physically embedded in walls or floors so that they cannot easily be removed . . . and are hard-wired into a store's electrical system and telephone lines." (Defs. R. 12(b)(7) Mtn., at 6.) Accordingly, because § 12183 applies to built-in ATMs, summary judgment for the Defendants on Count V is DENIED.
B. Count II
The Defendants move for summary judgment on Count II, which alleges a violation of § 12182(b)(2)(A)(ii), the reasonable modification mandate. Under this subsection of the statute, discrimination is defined as:
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
42 U.S.C. § 12182(b)(2)(A)(11).
In contrast to the other counts of the complaint, Count II focuses on whether the Defendants must modify their policies, not whether they should redesign or retrofit the physical structure of the ATMs. The Plaintiffs contend that because the Defendants do not operate traditional brick-andmortar banks with tellers, the only method by which a client can withdraw funds is through the use of an ATM. Thus, the Plaintiffs allege that E*Trade's policy of offering fee-free ATM transactions to its customers only at its own ATMs is discriminatory end should be modified. 58 Specifically, *58 because blind individuals cannot use E*Trade's inaccessible ATMs, they must pay a surcharge to conduct their banking at an accessible ATM not owned or operated by the Defendants. The Plaintiffs submit that the Court can order a modification under subsection (ii) without specifying precisely how the Defendants' policy must be altered, so long as it is reasonable to modify the policy. See, e.g., Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1087 (9th Cir.2004)(directing defendants to "modify its policies regarding companion seating to ensure that a companion of a wheelchair-bound patron be given priority in the use of companion seats . . . [up until] ten (10) minutes prior to show time."). The Plaintiffs suggest that the Defendants can modify their policies to grant blind depositors fee-free transactions at accessible ATMs owned or operated by other companies.

The Defendants respond by asserting that a reasonable modification claim pursuant to subsection (ii) requires specificity, because "an individualized inquiry must be made to determine whether a specific modification for a particular person's disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration." PGA Tour, Inc. v. Martin, 532 U.S. 661, 688, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001); see also Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir.2003) (plaintiff bears initial burden to prove that he "requested a reasonable modification in that policy or practice which, if granted, would have afforded him access to the desired goods; that the requested modification 0907 or a modification like it 0907 was necessary to afford that access; and that the defendant nonetheless refused to modify the policy or practice."); Guckenberger v. Boston Univ., 974 F.Supp. 106, 146 (D.Mass.1997)("In the reasonable modifications context, the plaintiff has the initial burden of proving that a modification was requested and that the requested modification is generally reasonable"). Finally, the Defendants argue that the Plaintiffs never requested a reasonable modification.
Under subsection (b)(2)(A)(ii), which is at play here, a plaintiff bears the burden of establishing that he requested a specific reasonable accommodation to a policy which, if granted, would afford him access to the desired goods or services. Once the plaintiff meets that burden of showing that a modification is reasonable in a general sense, the defendant must make the modification unless he can show that such a change would work a fundamental alteration.
The Plaintiffs have requested a modification to the Defendants' policies. Although the letter sent by the Plaintiffs on November 20, 2002 specifically mentions accessibility pursuant to the ADAAG, thereby indicating that the design of the ATMs is potentially problematic, it also broadly states that ATMs "are inaccessible in violation of Title III of the Americans with Disabilities Act". The letter requests that the ATMs be made accessible, but does not specify whether that must occur solely through alterations to the ATMs themselves or whether a modification in policies could also serve as a suitable remedy. Under subsection (ii), a disabled plaintiff is required to request a reasonable modification in order to inform the operator of a public accommodation of his disability and to allow that operator to undertake suitable modifications. Here, the Plaintiffs' letter was sufficient for this purpose: "Please notify us within two weeks of this letter's date whether you agree to make your ATM's [sic] accessible, and, if so, whether there is any reason that you cannot reasonably accomplish this task within two years. 59 Otherwise, we will proceed *59 with litigation as necessary to ensure the accessibility of your fleet." Moreover, in Count II of the complaint the Plaintiffs do specifically request a modification of the Defendants' policies, and the Plaintiffs' opposition papers suggest the possible modification that blind depositors be granted fee-free transactions at accessible ATMs operated by other companies.
I conclude that this suggested modification to the Defendants' policies 0907 allowing blind customers to use accessible ATMs operated by other companies without a surcharge 0907 is generally reasonable. The record in this case establishes that ATMs with voice-guidance technology are accessible to and independently usable by the blind. This Court cannot require the Defendants to employ voice-guidance technology, as such technology is not required by the ADAAG. However, various ATM owners and operators have voluntarily installed new ATMs, or upgraded existing ATMs, to be voice accessible. Permitting blind individuals to use these ATMs without an additional surcharge is a reasonable way to accommodate blind trade customers and does not, on its face, fundamentally alter the nature of the Defendants' services or business. E*Trade does not operate physical banks, but instead uses an exclusively mail and electronic business model. The suggested accommodation would allow the Defendants to continue to operate under this model and to provide electronic transactions to all customers, while also granting blind individuals access to and independent use of ATMs without paying a surcharge for such services. Accordingly, the burden now shifts to the Defendants to demonstrate that the suggested modification would fundamentally alter the nature of their electronic banking services. Summary judgment for the Defendants on Count II is DENIED.
C. Count III
The Defendants move for summary judgment on Count III, which alleges a violation of § 12182(b)(2)(A)(iii), the auxiliary aids man late. Subsection (iii) defines discrimination as:

a failure to take such steps as may be reasonably necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.
42 U.S.C. § 12182(b)(2)(A)(iii). The Defendants contend that to prevail under this subsection, a plaintiff must identify the absent auxiliary aid and the necessary steps that can be taken to insure that such aid is provided. The Plaintiffs respond that they need only demonstrate a denial of service by virtue of the absence of an auxiliary aid, and the burden then shifts to the Defendants to prove the affirmative defenses of undue burden or fundamental alteration.
I find that to establish a denial of services because of the absence of an auxiliary aid, the Plaintiffs have the burden of identifying the aid which they contend is missing. In cases granting relief under § 12182(b)(2)(A)(iii), the plaintiff routinely requests and identifies the specific auxiliary aid sought. For example, in Lindgren v. Camphill Village Minnesota, Inc., a case relied upon by the Plaintiffs, the court held that an element of a subsection (iii) claim is proof that the defendant failed to take steps to ensure that the plaintiff was not denied services because 60 of the absence of auxiliary aids. 2002 WL 1332796, at *5 (D.Minn.2002). The court ruled that these *60 necessary steps had to be "the steps Plaintiffs ask for." Id. In Lindgren, because the plaintiff "identified the accommodation 0907 additional respite care 0907 the cost of which on its face does not appear to exceed the benefit", the plaintiff had stated a sufficient claim. Id. at *6-7. Case law under subsection (iii) uniformly demonstrates that relief is granted only when an auxiliary aid to remedy the alleged discrimination can be identified. E.g., Roberts v. Kinder-Care Learning Centers, Inc., 83 F.2d 844 (8th Cir.1996)(identifying full-time, individualized care for disabled child); Dryer v. Flower Hosp., 383 F.Supp.2d 934 (N.D.Ohio 2005)(identifying access to oxygen ports for visitors at hospital); Burriola v. Greater Toledo YMCA, 133 F.Supp.2d 1034 (N.D.Ohio 2001)(identifying specific training and techniques for use with autistic child); Naiman v. New York University, 1997 WL 249970 (S.D.N.Y.1997)(identifying qualified sign language interpreter s); Mayberry v. Von Valtier, 843 F.Supp. 1160 (E.D.Mich.1994)(identifying interpreter for deaf patient); Bunjer v. Edwards, 985 F.Supp. 165 (D.D.C.1997) (identifying sign at drive-thru menu instructing deaf patrons to proceed to window).
In the instant case, the Plaintiffs present evidence that they have been denied the services of Defendants' ATMs, which are not accessible to and independently usable by the blind. However, they have not identified steps or auxiliary aids 0907 other than voice-guidance technology not mandated by the ADAAC 0907 available to remedy that denial of services. To avoid summary judgment, the Plaintiffs must do more than simply request that the ATMs be made accessible to or independently usable by the blind; they must specify what aids or steps can serve as the means to that end.
Given the serious questions presented by this case and the number of people affected, the Plaintiffs are accorded ninety (90) days to identify an auxiliary aid or service that, if provided, render the Defendants' ATMs accessible to and independently usable by the blind. If the Plaintiffs fail to make such a showing, summary judgment on Count III will be GRANTED to the Defendants.
D. Count IV
The Defendants move for summary judgment on Count IV, which alleges a violation of § 12182(b)(2)(A)(iv), the communication barrier removal mandate. Under this subsection of the statute, discrimination is defined as:
a failure to remove architectural barriers; and communications barriers that are structural in nature, in existing facilities . . . where such removal is readily achievable.
42 § 12182(b)(2)(A)(iv). The Defendants argue that a plaintiff bears the burden of both identifying an existing barriers and showing that it can be removed in a readily achievable manner. Coldrado Cross Disability Coalition v. Hermanson Family Ltd., 264 F.3d 999, 1007 (10th Cir.2001)("Plaintiff must initially introduce evidence tending to establish that the proposed method of architectural barrier removal is readily achievable"); Brother v. CPL Investments, Inc., 317 F.Supp.2d 1358, 1370 (S.D.Fla.2004)("Plaintiff bears the initial burden of suggesting a method of removal for each barrier identified, and proffering evidence that their suggested method is readily

achievable"); Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1365, 1085 (D.Haw.2000)("To succeed on an ADA claim . . . due to an architectural barrier, the plaintiff must also prove . . . removal of a barrier is readily achievable")(emphasis in original).
61 While there is no First Circuit case that directly addresses the burden of proof under *61 this subsection of the statute, I agree that under § 12182(b)(2)(A)(iv), a plaintiff bears the burden of introducing evidence to establish that a suggested method of barrier removal is readily achievable. 42 U.S.C. § 12181(9). Only if a plaintiff satisfies this initial showing does the burden shift to the defendant to prove that the requested barrier removal method is not readily achievable. Practically speaking, there may often be an information imbalance between a plaintiff and a defendant, with the defendant possessing the additional experience and knowledge gained from owning and operating the facility containing the architectural or communications barrier. Nevertheless, a plaintiff should at a minimum provide a general removal plan and discuss its feasibility, bearing in mind both structural concerns and estimated costs.
In this case, the Plaintiffs have not met their burden of proffering a plan for barrier removal that is readily achievable. They have failed to indicate how the ATMs at issue can be made accessible to blind people other than through the use of voice-guidance technology, which is not mandated by the ADAAG. Absent any other suggestion as to how the Defendants can remove barriers which impede the accessibility and use of ATMs by the blind, summary judgment for the Defendants on Count IV is appropriate. Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1370 (S.D.Fla.2001)(plaintiff "completely failed to suggest a plan of modification, much less demonstrate that such modification would be readily achievable").
As in the ruling on Count III above, the Plaintiffs are granted ninety (90) days to specify how communications barriers can be removed consistently with the ADAAG, so that the ATMs in question will be made accessible to and independently usable by the blind. If the Plaintiffs fail to make such a showing, summary judgment on Count IV will be GRANTED to the Defendants.
E. Count I
Finally, the Defendants move for summary judgment on Count I, which alleges a violation of § 12182(a), the ADA's general prohibition against discrimination. This subsection provides that:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by a person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). The Defendants argue that section (a) does not provide an independent basis for recovery when a plaintiff seeks recovery under the more specific provisions of § 12182(b). Rather, the Defendants assert, "the question of whether [a party] has violated" the general rule of § 12182(a) "depends upon a proper construction of the term `discrimination'" as defined in § 12182(b). Martin, 532 U.S. at 681-82, 121 S.Ct. 1879. The Defendants therefore contend that because they are entitled to summary judgment on all the Plaintiffs' claims pursuant to section § 12182(b), they are also entitled to summary judgment on the Plaintiffs' claim under section (a). However, as outlined above, summary judgment has been denied for the Defendants on Count II, pursuant to § 12182(b)(2)(A)(ii), and has not yet been granted on Counts III and IV, pursuant to §§ 12182(b)(2) (A)(iii) and 12182(b)(2)(A)(iv). Accordingly, the Defendants' motion for summary judgment on Count I is DENIED 62 without prejudice *62 to renewal depending on the future direction of the case.
* * * * * *
In conclusion, summary judgment for both the Plaintiffs and the Defendants is DENIED as to Count V. However, the Plaintiffs' motion is subject to renewal under a more fully developed record.
Summary judgment for Cardtronics on Counts I and II is DENIED.

As to Count III, the Plaintiffs are granted ninety (90) days to identify an auxiliary aid or service. If they fail to make such a showing, summary judgment on Count III will be GRANTED to Cardtronics.
As to Count IV, the Plaintiffs are granted ninety (90) days to specify how communications barriers can be removed consistently with the ADAAG. If they fail to make such a showing, summary judgment on Count IV will be GRANTED to Cardtronics.
It is so ordered.
[1] Cardtronics acquired the ATM business of E*Trade on June 2, 2004. Cardtronics is now the country's largest independent owner/operator of ATMs, with a network of over 25,000 ATMs nationwide. While this network consists of both ATMS owned or leased by Cardtronics as well as ATMs owned by third-parties but operated by Cardtronics, only the Cardtronics-owned ATMs are the subject of the Plaintiff's motion for partial summary judgment.
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 Com. of Mass v. E*Trade Access, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 2511059 Only the Westlaw citation is currently available.
United States District Court, D. Massachusetts.
COMMONWEALTH OF MASSACHUSETTS, The National Federation of the Blind, Inc., The National Federation of the Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi, and Philip
Oliver Plaintiffs, v.
E*TRADE ACCESS, INC. and E*Trade Bank Defendants. No. 03-CV-11206-MEL. | Feb. 22, 2005.
Attorneys and Law Firms
Patricia Correa, Attorney General’s Office, Anthony M. Doniger, Christine M. Netski, Sugarman, Rogers, Barshak & Cohen, Boston, MA; Daniel F. Goldstein, Sharon Krevor-Weisbaum, Brown, Goldstein & Levy, LLP, Baltimore, MD, for Plaintiffs.
Douglas P. Lobel, David A. Vogel, Arnold & Porter LLP, McLean, VA; Jenny K. Cooper, Joseph L. Kociubes, Bingham McCutchen, LLP, Boston, MA, for Defendants.
Opinion
MEMORANDUM AND ORDER
LASKER, J.
*1 The Commonwealth of Massachusetts, the National Federation of the Blind, Inc., the National Federation of the Blind of Massachusetts, Inc., and a number of blind Massachusetts residents (collectively, “Plaintiffs”) sue E*Trade Access, Inc. and E*Trade Bank (collectively, “E*Trade”) alleging discrimination against the blind. E*Trade now moves for judgment on the pleadings, asserting that the Plaintiffs fail to state a claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12182 and 12183, because they seek relief not required or authorized under the current implementing regulations of the United States Department of Justice (“DOJ”).
I. Background
E*Trade operates a network of over 11,000 Automated Teller Machines (“ATMs”) nationwide, approximately 700 of which are located in Massachusetts. E*Trade’s network consists of two types of ATMs: a limited number that it has title to, and a larger number that are owned and operated by third-party merchants. In June 2003, E*Trade agreed to retrofit all ATMs which it owns to make them accessible to the blind. The present lawsuit concerns the remaining ATMs operated by third-parties.
The Complaint alleges that E*Trade has failed to make ATM banking services accessible to and independently usable by the blind, and that E*Trade operates and/or controls and/or leases ATMs that are inaccessible to and not independently usable by the blind, in violation of Title III of the ADA and the regulations promulgated thereunder, 28 C.F.R. pt. 36 et seq., the Massachusetts Public Accommodations Act (“MPAA”), M.G.L. c. 272 §§ 92A and 98, and the Massachusetts Equal Rights Act (“MERA”), M.G.L. c. 93 § 103. The Plaintiffs seek injunctive relief ordering E*Trade to make the necessary modifications to ATMs that they operate and/or lease so that the blind may have access to and independently use such ATMs.
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Com. of Mass v. E*Trade Access, Inc., Not Reported in F.Supp.2d (2005)
II. Motion for Judgment on the Pleadings
E*Trade contends that the sole relief requested by the Plaintiffs is the installation of voice-guidance technology, in the form of headphone jacks, and that under the DOJ’s current regulations no such relief may be granted. E*Trade argues that the DOJ’s existing regulations for ATMs, first specified by the Architectural and Transportation Barriers Compliance Board (“Access Board”) in the 1991 ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”), require that instructions and all information for use of ATMs be “made accessible to and independently usable by persons with vision impairments.” Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. pt. 26, App. A § 4.34.5 (1994). E*Trade contends that the 1991 ADAAG do not mandate or require headphone jacks: “In light of the evolving technology in this area and to allow flexibility in design, the Board has stated the requirement for accessibility to persons with vision impairments in general performance terms.” Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities, 36 C.F.R. pt. 1191 (1991). According to E*Trade, despite adopting a flexible approach the Access Board rejected mandating voice guided technology in the form of headphone jacks: “Until such time as additional research can be conducted into the issues of security and privacy at ATMs, the Board does not propose to include requirements for such measures.” Id. In contrast, the Access Board specifically stated that Braille and large print instructions, “when used in conjunction with tactually marked keys or other means of identification, do serve as one source of accommodation for persons with vision impairments.” Id.
*2 E*Trade contends that: (1) the Plaintiffs’ sole allegation is that the ATMs at issue in this case fail to comply with the ADA because they lack headphone jacks: “The only effective means to make ATMs accessible to blind people is through voice-guidance technology”, Amend. Compl. ¶ 28, and (2) the DOJ’s regulations adopting the 1991 ADAAG do not require voice-guidance technology, and it is these regulations, not the more general statutory provisions of the ADA itself, that establish accessibility obligations under the ADA: “Congress unambiguously intended compliance with the specific regulations of the Attorney General and the Access Board to be sufficient to satisfy the requirements under Title III of the ADA.” United States v. National Amusements, Inc., 180 F.Supp.2d 251, 257 (D.Mass.2001). Therefore, E*Trade maintains that because any claim about inaccessibility of ATMs is limited by the language of the DOJ’s regulations, which do not mandate voice-guidance technology, the Plaintiffs have not stated a claim under the ADA and judgment on the pleadings should be granted for E*Trade.
Finally, E*Trade argues that the DOJ’s forthcoming adoption of the revised 2004 ADAAG will be dispositive of the Plaintiffs’ claims and will moot this suit. E*Trade recognizes that the proposed 2004 ADAAG may impose voice-guidance technology on all new ATMs, in which case the DOJ will decide whether the 2004 ADAAG should also apply retroactively. E*Trade therefore asserts that if the DOJ does not apply the 2004 ADAAG regarding voice-guidance technology to existing ATMs, the Plaintiffs will have no ADA claims; if the DOJ decides the new regulations apply retroactively the DOJ will specify which ATMs must be retrofitted and on what timeline, and the Plaintiffs will be entitled to relief that aligns with new industry standards. According to E*Trade, the Court should therefore follow “primary jurisdiction” doctrine and defer to the DOJ’s policy-making authority by dismissing or staying this suit until the DOJ issues final regulations. See U.S. Public Interest Research Group v. Atlantic Salmon of Maine, LLC, 339 F.3d 23, 34 (1st Cir.2003).
E*Trade contends that the sole relief sought by the Plaintiffs is voice-guidance technology, as admitted in their responses to E*Trade’s second set of interrogatories, and that because such relief is not available under the current regulations judgment on the pleadings must be entered for E*Trade. The Plaintiffs respond that aside from legal objections to the interrogatories, they merely admitted that “voice guidance technology is the most effective means of making ATMs independently usable by blind people within the meaning of 28 C.F.R. pt. 36 App. A section 4.35.” Plaintiffs’ Response to Defendants’ Second Set of Interrogatories at 3. Plaintiffs maintain that their answer did not concede that alternative forms of relief are unavailable, and indeed stressed the legal responsibility of E*Trade to assert affirmative defenses.
*3 The Plaintiffs further contend that E*Trade misconstrues the Complaint, which seeks broad equitable relief for E*Trade’s failure to make ATMs “accessible to and independently usable” by blind persons, as required by the 1991 ADAAG. Plaintiffs argue that voice-guidance technology has not been rejected as a method of compliance with the ADAAG; rather, the Access Board decided against mandating any specific approach and instead “stated the requirements for accessibility for persons with vision impairments in general performance terms” in order to “maintain its position of flexibility in this area.” Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities, 36 C.F.R. pt. 1191 (1991). Plaintiffs assert that their Complaint is not focused exclusively on voice-guidance technology, but instead seeks injunctive relief consistent with the ADAAG’s performance-based standards. “Plaintiffs request that the Court ... enjoin each of the Defendants from continuing to violate the ADA and Massachusetts law and order all Defendants immediately to make the necessary modifications to the ATMs they operate or operate and lease, so that blind people may have access to and independently use these ATMs.” Amend. Compl. at 14. Although the Plaintiffs maintain that voice-guidance technology is
2

Com. of Mass v. E*Trade Access, Inc., Not Reported in F.Supp.2d (2005)
the most effective method currently available to make ATMs accessible to the blind, their Complaint leaves open the possibility that other options can satisfy the ADA’s legal mandate.
Finally, the Plaintiffs assert that the 2004 ADAAG rulemaking process does not affect their claims. According to the Plaintiffs, even if the 2004 ADAAG, once adopted, do not apply retroactively, and even if the DOJ establishes a safe harbor for entities that are in compliance with the 1991 ADAAG, the ATMs at issue in this case would not be eligible because, as the DOJ explained in its advance notice of proposed rulemaking, “This safe harbor option would, of course, have no effect on noncompliant elements. To the extent that elements in existing facilities are not already in compliance with scoping and technical requirements in the current ADA Standards, existing public accommodations would be required to remove barriers, to the extent readily achievable, to make elements comply with the revised ADA Standards.” Nondiscrimination on the Basis of Disability in Public Accommodations and in Commercial Facilities; Proposed Rule, 69 Fed.Reg. 58,771 (2004) (to be codified at 28 C.F.R. pts. 35, 36) (proposed September 30, 2004). The Plaintiffs argue that because E*Trade’s ATMs are not accessible to and independently usable by the blind, they are not in compliance with existing DOJ regulations. Therefore, according to the Plaintiffs, whether the 2004 ADAAG are adopted by the DOJ and include a safe harbor provision is irrelevant to this case, because the ATMs at issue must still be made accessible to and independently usable by the blind.
III.
*4 The DOJ’s current regulations for ATMs require that instructions and all information for use be “made accessible to and independently usable by persons with vision impairments.” Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. pt. 26, App. A § 4.34.5 (1994). The 1991 ADAAG do not mandate or require headphone jacks: “In light of the evolving technology in this area and to allow flexibility in design, the Board has stated the requirement for accessibility to persons with vision impairments in general performance terms.” Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities, 36 C.F.R. pt. 1191 (1991). The statutory language and structure of the ADA indicate that Congress intended that the DOJ’s regulations and the ADAAG, when passed, would set forth standards sufficient to satisfy ADA obligations; the DOJ’s regulations therefore establish the limits of ADA liability. National Amusements, 180 F.Supp.2d at 258-59. Accordingly, the remedy of voice-guidance technology, which is not mandated or required by the current DOJ regulations, may not be imposed on the Defendants in this case under the law as it stands, and the DOJ’s policymaking authority may not be compromised or preempted by the Court.
Nevertheless, judgment on the pleadings may not be entered “unless it appears beyond a doubt that the nonmoving party can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Feliciano v. Rhode Island, 160 F.3d 780, 788 (1st Cir.1998). The Plaintiffs have put forward a legally sufficient claim that under the existing regulations the Defendants’ ATMs are not accessible to or independently usable by the blind. It appears that the Plaintiffs may be able to prove a set of facts that would entitle them to some relief, aside from voice-guidance technology, required by the current DOJ regulations. Although their preferred remedy of voice-guidance technology is not available under the existing regulations, the Plaintiffs can seek “the necessary modifications to the ATMs they [E*Trade] operate or operate and lease, so that blind people may have access to and independently use these ATMs.” Amend. Compl. at 14. Accordingly, E*Trade’s motion for judgment on the pleadings is DENIED.
E*Trade has alternatively moved for a stay of the proceedings pending a determination by the DOJ as to what course it will take with the 2004 ADAAG. This is an issue which should be separately discussed and decided. Accordingly, the Court will arrange for a meeting to determine what further proceedings are appropriate.
It is so ordered.
3

 
 Commonwealth of Massachusetts v. E*Trade Access, Inc., Not Reported in F.Supp.2d...
2006 WL 3741935 Only the Westlaw citation is currently available.
United States District Court, D. Massachusetts.
COMMONWEALTH OF MASSACHUSETTS, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc., Adrienne Asch, Jennifer Bose, Theresa Jeraldi and Philip Oliver, Plaintiffs, v. E*TRADE ACCESS, INC., E*Trade Bank, Cardtronics, LP, and Cardtronics, Inc. Defendants. No. Civ.A. 03–11206–MEL. | Oct. 10, 2006.
Attorneys and Law Firms Patricia Correa, Attorney General’s Office, Anthony M. Doniger, Christine M. Netski, Sugarman, Rogers, Barshak & Cohen, Boston, MA, Daniel F. Goldstein, Sharon Krevor–Weisbaum, Brown, Goldstein & Levy, LLP, Baltimore, MD, Amy F. Robertson, Timothy P. Fox, Fox & Robertson, PC, Denver, CO, for Plaintiff. Douglas P. Lobel, Cooley Godward LLP, Reston, VA, Jenny K. Cooper, Joseph L. Kociubes, Bingham McCutchen LLP, Leigh–Ann M. Durant, Nixon Peabody, LLP, Boston, MA, for Defendant. Opinion LASKER, J.
*1 The defendants have moved for “clarification” of the Court’s February 24, 2006 Order. They propose that “the Court should clarify that plaintiffs’ cause of action in Count V, ADA § 12183(a)(1), requires plaintiffs to prove ATMs are attached to building constructed after January 19, 1993.” The proposal is denied. The plaintiffs are correct in stating, in response to the motion for clarification, that “the Court concluded that Plaintiffs have established that the Cardtronics-owned ATMs at issue—all of which are installed after January 26, 1993—fall within the parameters of the new construction mandate”, and that “[a]fter extensive briefing by the parties, the Court ruled that “ ‘relevant regulations and guidelines issued by the DOJ and the Access Board seem clearly to establish that built-in ATMs are facilities covered by the new construction mandate.” ’ I recognize that there are strong arguments in support of defendants’ position that $12183 (a)(1) may be construed to require plaintiffs to prove that ATMs are attached to buildings constructed after January 19, 1993, but I find the arguments profferred by the plaintiffs to be more persuasive on this unexplored subject.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et al.,
Plaintiffs v. CARDTRONICS, INC., et al.,
Defendants

CIVIL ACTION NO. 03-11206-NMG

JOINT MOTION FOR PRELIMINARY APPROVAL OF AMENDED AND RESTATED CLASS ACTION SETTLEMENT AGREEMENT
AND FOR FAIRNESS HEARING INTRODUCTION
Pursuant to Fed. R. Civ. P. 23(e), Plaintiffs, Commonwealth of Massachusetts, National Federation of the Blind (“NFB”), and Jennifer Bose, Bryan Bashin, Robert Crowley, Norma Crosby, Dwight Sayer, Terri Uttermohlen and Raymond Wayne (the “Individual Plaintiffs”), and Defendants, Cardtronics, Inc. and Cardtronics USA, Inc. (jointly “Cardtronics”), hereby submit this Joint Motion for Preliminary Approval of Amended and Restated Class Action Settlement Agreement and for Fairness Hearing.
In support of their Motion, and as fully set forth in the Memorandum of Law in Support of their Joint Motion for Preliminary Approval of Amended and Restated Class Action Settlement Agreement and for Fairness Hearing, the parties state as follows. After more than three years of litigating Cardtronics’ alleged failure to comply with the parties’ 2007 Settlement Agreement and 2010 Remediation Plan, and after lengthy settlement negotiations and multiple mediation sessions before the Court-appointed Special Master, the parties have entered into an

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Amended and Restated Class Action Settlement Agreement (“Amended Agreement”). The Amended Agreement is attached hereto as Exhibit A.
In the Amended Agreement, Cardtronics agrees to develop and install enhanced voiceguidance software for its fleet of ATMs on or before March 31, 2017. Cardtronics also agrees to ensure that all ATMs in its existing fleet will have NFB-approved signage. In addition, the Amended Agreement contemplates a robust field inspection and testing program, as well as detailed compliance reporting. The Court-appointed Special Master will serve as “Arbiter” during term of the Amended Agreement to determine, through a rigorous software approval process, whether the enhanced software satisfies the agreed-upon voice-guidance standards and to certify Cardtronics’ compliance with those standards.
In addition, although the Amended Agreement is designed to avoid future disputes between the parties to the greatest extent possible, it provides that any such disputes that may arise will be decided by the Arbiter, which will minimize the expense and delay associated with any attempts to enforce the Amended Agreement. The Amended Agreement provides further that the Arbiter will assess liquidated damages against Cardtronics in the event he finds that Cardtronics has breached the Amended Agreement. The parties have also agreed on a proposed form of Notice of Proposed Amended and Restated Class Action Settlement for publication to the class members, as set forth in Exhibit B.
WHEREFORE, the parties respectfully request that this Court issue an order: 1. Finding that the Amended and Restated Class Action Settlement Agreement is fair,
reasonable and adequate, and on those grounds, granting preliminary approval;
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2. Holding that the proposed plan to provide notice to the class of the Amended and Restated Class Action Settlement Agreement is the only notice required and that such notice satisfies the requirements of due process and Rule 23;
3. Holding that the schedule and procedures for Class Members to object to the Amended and Restated Class Action Settlement Agreement are fair, reasonable and adequate;
4. Scheduling a Fairness Hearing to determine whether the proposed Amended and Restated Class Action Settlement Agreement is fair, reasonable and adequate and, therefore, whether final approval is appropriate; and
5. Staying the resolution of all pending motions. A proposed Order is attached hereto as Exhibit C.
Respectfully submitted, By the Parties:

PLAINTIFF COMMONWEALTH OF MASSACHUSETTS, MARTHA COAKLEY, ATTORNEY GENERAL

DEFENDANT CARDTRONICS, INC.

/s/ Genevieve C. Nadeau Genevieve C. Nadeau, BBO # 677566 Assistant Attorney General Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 genevieve.nadeau@state.ma.us

/s/ Douglas P. Lobel Douglas P. Lobel (admitted pro hac vice) David A. Vogel (admitted pro hac vice) COOLEY LLP One Freedom Square|Reston Town Center 11951 Freedom Drive Reston, Virginia 20190 (703) 720-7000 dlobel@cooley.com dvogel@cooley.com

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PLAINTIFFS NATIONAL FEDERATION OF THE BLIND AND THE INDIVIDUAL PLAINTIFFS

/s/ Christine M. Netski Christine M. Netski, BBO #546936 Anthony M. Doniger, BBO #129420 Sugarman, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030 netski@srbc.com doniger@srbc.com

/s/ Sharon Krevor-Weisbaum Sharon Krevor-Weisbaum (admitted pro hac vice) Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030 skw@browngold.com

/s/ Timothy P. Fox Timothy P. Fox (admitted pro hac vice) Amy F. Robertson (admitted pro hac vice) Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 tfox@creeclaw.org arobertson@creeclaw.org

DATED: November 24, 2014

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CERTIFICATE OF SERVICE

I, Genevieve C. Nadeau, hereby certify that this Joint Motion for Preliminary Approval of Amended and Restated Class Action Settlement Agreement and for Fairness Hearing, filed through the CM/ECF system, will be sent electronically to the below named registered participants identified on the Notice of Electronic Filing, and that paper copies will be sent to those indicated as non-registered participants, if any, on this date.

Christine M. Netski Anthony M. Doniger Sugarman, Rogers, Barshak & Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 (617) 227-3030 netski@srbc.com doniger@srbc.com
Sharon Krevor-Weisbaum Daniel F. Goldstein Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030 skw@browngold.com dfg@browngold.com
David R. Cohen Co. LPA 24400 Chagrin Blvd., Suite 300 Cleveland, OH 44122 (216) 831-0001 david@specialmaster.biz

Timothy P. Fox Amy R. Robertson Civil Rights Education and
Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 (303) 595-9700 tfox@creeclaw.org arobertson@creeclaw.org
Douglas P. Lobel David A. Vogel Cooley LLP One Freedom Square Reston Town Center 11951 Freedom Drive Reston, Virginia 20190 (703) 720-7000 dlobel@cooley.com dvogel@cooley.com

Dated: November 24, 2014

/s/ Genevieve C. Nadeau

x

Genevieve C. Nadeau

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, eta!.,
Plaintiffs
V.
CARDTRONICS, INC., eta!., Defendants

CIVIL ACTION NO. 03-11206-NMG

, ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF AMENDED AND RESTATED CLASS ACTION SETTLEMENT AGREEMENT AND PLAINTIFFS' UNOPPOSED PETITION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS Plaintiffs, Commonwealth of Massachusetts, National Federation ofthe Blind ("NFB"), and Jennifer Bose, Bryan Bashin, Robert Crowley, Norma Crosby, Dwight Sayer, Terri Uttermohlen and Raymond Wayne (the "Individual Plaintiffs"), and Defendants, Cardtronics, Inc. and Cardtronics USA, Inc. Uointly "Cardtronics"), seek final approval of the Amended and Restated Class Action Settlement Agreement ("Amended Agreement") that was approved preliminarily by this Court on December 2, 2014. See Order Granting Joint Motion for Preliminary Approval ofProposed Amended and Restated Class Action Settlement Agreement ("Preliminary Approval Order," Dkt. 391). Specifically, Plaintiffs have moved the Court for an Order: (1) finding that the Amended Agreement is fair, reasonable and adequate; (2) finding that the Notice published to the class satisfies the requirements of due process and Fed. R. Civ. P. 23; (3) approving an award of attorneys' fees and costs to Plaintiffs in the amount of$397,536.70, plus additional reasonable fees and costs incurred by Plaintiffs between March I, 2015 and May 7,

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2015, as agreed to by the parties; (4) attaching and incorporating by reference the terms ofthe Amended Agreement; (5) dismissing all pending motions in this action; and (6) retaining jurisdiction over this matter for purposes of enforcing the decisions of the court-appointed Arbiter concerning compliance with the Amended Agreement. I. History of Litigation and Recent Settlement Negotiations
Cardtronics currently owns and/or operates approximately 95,000 ATMs throughout the United States. Approximately 40,000 of these ATMs are owned by Cardtronics and approximately 55,000 are owned by independent merchants who are customers ofCardtronics. In the underlying action that resulted in the original settlement in this class action, Plaintiffs alleged that ATMs owned and/or operated by Cardtronics were not accessible to the blind, in violation of the Americans with Disabilities Act and Massachusetts state law, and requested that Cardtronics' ATMs be made accessible to and independently useable by the blind through the use of voice-guidance technology.
An ATM with voice-guidance has a headphone jack into which a blind user can plug his or her headphones. Software loaded on the ATM then provides an audio description of the machine so that a blind user knows the location of the various controls, and gives audio instructions allowing a blind user to independently withdraw money, check account balances and accomplish any other transactions offered through the ATM. Thus, for an ATM to be accessible, it must be configured such that a blind user, through only touch and sound, can complete the same transactions that are available to a sighted user.
In June 2007, after four years of hard-fought litigation and several failed attempts at settlement, the parties reached a detailed class action settlement agreement ("Settlement Agreement"). On December 4, 2007, the Court issued its Final Order granting final approval to
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the Settlement Agreement and retaining jurisdiction over all matters relating to the interpretation and enforcement of the Settlement Agreement. (Dkt. 279 at 12-13). In the Settlement Agreement, Cardtronics agreed to make virtually all Cardtronics-owned ATMs voice-guided. In addition, the Settlement Agreement required that each ATM have Braille signage in a form agreed to by the parties. Cardtronics also agreed to cease entering into new contracts with merchants who maintained inaccessible ATMs and to encourage its merchant customers to make their machines accessible. Finally, Cardtronics agreed to ensure that 90% of transactions on all ATMs covered by the Settlement Agreement would occur on voice-guided machines.
The parties included a detailed definition of"voice-guidance" in the Settlement Agreement in an effort to ensure that blind users would receive specific and organized audible instructions to complete the essential steps of a given transaction. Cardtronics' fleet, however, includes many different makes and models of ATMs, with varying capacities to be upgraded to meet this definition, and the results of Plaintiffs' compliance testing in 2008 and early 2009 led to disputes between the parties concerning the degree to which the ATMs met the requirements of the Settlement Agreement. In accordance with the dispute resolution provision of the Settlement Agreement, Plaintiffs initiated discussions with Cardtronics to address this issue. The parties met several times between May and December 2009, during the course of which Cardtronics acknowledged that it had failed to meet its obligations under the Settlement Agreement and that customized voice-guidance software would be required to bring various ATM makes and models into compliance. In December 2009, Plaintiffs tested and approved multiple versions of voice-guidance software that Cardtronics developed in an effort to come into compliance. During the following several months, the parties then negotiated a Remediation Plan that was approved by the Court on November 3, 2010. (Dkt. 288). Under the Remediation Plan, Cardtronics was given
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additional time to bring its fleet into compliance with the requirements of the Settlement Agreement and, among other obligations, was required to install the NFB-approved software to the vast majority of its owned machines by December 31, 2010.
Alleging that Cardtronics failed to meet the requirements of the Remediation Plan, Plaintiffs filed a contempt motion on July 29,2011. (Dkt. 290). In December 2011, the Court found that contempt sanctions against Cardtronics were warranted, but provided Cardtronics an opportunity to avoid the imposition of a fine based upon Cardtronics' representation that it would fully comply with all of its obligations under the Remediation Plan no later than March 15, 2012. (Dkt. 308).
During the months following the Court's March 15, 2012 deadline for compliance, Plaintiffs' testing led Plaintiffs to conclude that Cardtronics had fallen short of meeting its obligations with respect to voice-guidance. In addition, Cardtronics installed Braille signage across its entire fleet that it believed complied with the 2010 ADA accessibility guidelines, but that Plaintiffs contended did not meet the requirements of the Settlement Agreement and Remediation Plan.2 Plaintiffs therefore filed a second motion for contempt in August 2012. (Dkt. 312). In addition to requesting contempt sanctions, Plaintiffs requested- and Cardtronics agreed- that the Court appoint a special master to assist the parties in designing and implementing a more reliable inspection and testing program (with input from blind users), to assist the parties in designing and implementing a more effective compliance reporting protocol and to recommend findings of fact to the Court for purposes of imposing contempt sanctions for any continuing violations. (Dkt. 312 at 2-3).
2 The signage required by the Settlement Agreement includes Braille on the headphone jack, the card slot, the receipt chute and the cash dispenser. (Dkt. 279 at Exhibit I B).
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On March 21, 2013, the Court issued an Order finding that contempt sanctions against Cardtronics remained warranted, but stating further that the extent of Cardtronics' violations remained to be ascertained. (Dkt. 338). Following a hearing, the Court appointed David R. Cohen as Special Master on May 22, 2013, and directed that he (1) make a specific finding concerning the
number of non-comp ~t ATMs as of March 15, 2012, (2) estimate the degree by which
Cardtronics' failure to comply reduced the ability of blind users to access the non-compliant ATMs, and (3) recommend a specific monetary sanction consistent with the Court's Orders and relevant case law. (Dkt. 351).
In accordance with the Court's May 22, 2013 Order, the parties had an initial conference with the Special Master in Boston on June 28, 2013. The parties and the Special Master then met at Cardtronics' laboratory in Frisco, Texas on July 29-30, 2013 , to review and test the voice-guidance on ATM models that were representative of the ATMs in the field, and to come to an agreement on what information Cardtronics would include in future monthly reports.
After the testing in Frisco was completed, the parties exchanged their respective interpretations of the test resu Its. It became apparent during this process that the parties disagreed concerning how compliance with the "voice-guidance" requirements ofthe Settlement Agreement and Remediation Plan should be measured. In addition to these factual disputes, which were quite complex given the size and makeup ofCardtronics' fleet, a threshold legal issue that remained unresolved was whether the resolution of these disputed issues would require a jury trial.
The parties briefed these and other relevant legal issues and met with the Special Master in Boston on November 20 and 21 , 2013, to discuss their respective positions and to explore the possibility of resolving the contempt proceeding through an amended settlement agreement. All
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parties expressed willingness to enter into settlement discussions in an effort to avoid further and protracted litigation.
The parties participated in full-day mediation sessions with the Special Master in Washington, D.C., on February 27, February 28, March 6 and March 7, 2014, but were unable to reach consensus on a number of issues. The parties continued their negotiations in full-day sessions with the Special Master in Boston on April 8 and 9, 2014, and ultimately reached an agreement in principle on May 28, 2014. The parties then drafted and executed an Amended and Restated Settlement Agreement. In summary, the parties have agreed as follows:
• Cardtronics' future compliance will be measured against clear and comprehensive voice-guidance standards;
• Cardtronics will develop software for its ATMs that satisfies these voice-guidance standards;
• A blind tester selected by the NFB will participate in the evaluation ofthe software for compliance with these voice-guidance standards;
• The Special Master, acting as "Arbiter," will determine whether the software satisfies these voice-guidance standards;
• Only software approved by the Arbiter will qualify as satisfying these voice-guidance standards;
• Cardtronics will pay the reasonable fees and expenses incurred by the Arbiter and the NFB-selected blind tester during the software testing and approval process;
• Cardtronics will install approved voice-guidance software on, and affix NFB-approved Braille decals to, its ATMs no later than March 31, 2017;
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• Cardtronics will divest itself of any ATM in its existing fleet that has not been upgraded with approved voice-guidance software by March 31, 2017;
• With respect to ATMs acquired after the date of the Amended Agreement, Cardtronics will provide approved Braille decals and install approved software within clearly-defined time frames following acquisition;
• All ATMs covered by the Amended Agreement will have tactilely discernable controls;
• Cardtronics will inspect all Cardtronics-owned, branded ATMs at least once every nine months and all Cardtronics-owned, non-branded ATMs at least once every 18 months during the term of the Amended Agreement;
• Cardtronics will inspect at least I ,000 merchant-owned ATMs at least once every 12 months);
• The NFB may conduct up to 600 inspections of Cardtronics ATMs in the field at Cardtronics' expense;
• Cardtronics will provide Plaintiffs and the Arbiter with comprehensive monthly reports on the status of its compliance and quarterly reports on the composition of its fleet;
• Cardtronics will maintain on its website an accessible ATM locator through which consumers can determine where particular ATMs in Cardtronics' fleet are located and whether each ATM is voice-guided;
• Cardtronics will establish an internal "Accessibility Center ofExcellence" whose mission shall be to deliver industry-leading voice-guidance to consumers at ATMs in Cardtronics' fleet;
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• Cardtronics will pay $1,250,000 to the NFB to promote equal access for Blind persons;
• Cardtronics will pay $250,000 to the Commonwealth of Massachusetts, to be used by the Attorney General to promote equal access for Blind persons or other individuals with disabilities;
• The Arbiter will resolve all disputes concerning Cardtronics' compliance with the Amended Agreement;
• The Arbiter will assess liquidated damages if he finds that Cardtronics has breached any of its obligations under the Amended Agreement;
• Plaintiffs will release all claims concerning Cardtronics' compliance with the Settlement Agreement and Remediation Plan;
• The NFB and the Individual Plaintiffs will release all claims for monetary damages ofany kind, including punitive or exemplary damages, and any claims for contempt sanctions;
• Class members (except for the named Plaintiffs) will not release claims for monetary damages unrelated to Cardtronics' alleged contempt, including punitive or exemplary damages; and
• Cardtronics will pay the reasonable attorneys' fees and expenses incurred by plaintiffs' counsel in connection with negotiating the Amended Agreement and obtaining final approval ofthe Amended Agreement by the Court.
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In the Amended Agreement, the parties have agreed that the Court shall dismiss all pending motions as moot and that the Court shall retain jurisdiction for purposes ofenforcing the decisions of the Arbiter concerning compliance with the Amended Agreement.
II. Preliminary Approval
As mentioned, on December 2, 2014, this Court granted the parties' Joint Motion for Preliminary Approval of Proposed Amended and Restated Class Action Settlement Agreement and for a Fairness Hearing and scheduled a Fairness Hearing on the proposed Amended Agreement for May 7, 2015. In the Preliminary Approval Order, the Court approved the parties' proposed plan for notifying class members of the Amended Agreement, as well as the notice to be utilized for this purpose ("Notice").
III. Notice to the Class
Following this Court's preliminary approval of the Amended Agreement, the parties implemented the approved notice program. Specifically, the Notice was posted on the websites of Cardtronics and the NFB on or about December 8, 2014. On December 10,2014, the National Council on Independent Living distributed the Notice to its email database of 3,854 recipients. In addition, on December 31, 2014, the National Disability Rights Network ("NDRN") sent the Notice by email to the Legal Director for each ofthe 57 Protection & Advocacy ("P&A") agencies throughout the country and, on January 5, 2015, NDRN also sent the Notice to the Executive Director of each P&A. Finally, the Notice was published in the February 2015 edition ofboth The ; Braille Forum and The Braille Monitor.
This Court has not received any objections from class members to the Amended Agreement.
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DISCUSSION I. The Amended Agreement Is Granted Final Approval
A court may approve the settlement of a class action only upon finding that it is "fair, reasonable and adequate." Fed. R. Civ. P. 23(e)(2); see also City P 'ship Co. v. Atlantic Acquisition Ltd. P 'ship, 100 F.3d 1041, 1043 (lst Cir. 1996) (same). The First Circuit has recognized a clear policy of encouraging settlements in class action cases, and has stated that " [w]hen sufficient discovery has been provided and the parties have bargained at arms-length, there is a presumption in favor of the settlement." City P 'ship Co. , I 00 F.3d at I 043. As one court in this district observed, "[t]here is no single test in the First Circuit for determining fairness, reasonableness and adequacy of a proposed class action settlement." In re Relafen Antitrust Litigation, 231 F.R.D. 52, 72 (D. Mass. 2005) (quoting In re Compact Disc Minimum Adver. Price Antitrust Litig., 216 F.R.D. 197, 206 (D. Me. 2003)). Nevertheless, several courts in this district have considered the following factors set forth in City ofDetroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), overruled on other grounds by Missouri v. Jenkins, 491 U.S. 274 (I 989), in assessing whether a settlement is fair, reasonable and adequate:
(I) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks ofmaintaining the class action through trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. See In re Relafin, 231 F.R.D. at 72-74 (analyzing fairness using Grinnell factors); In re Lupron Mktg. & Sales Practices Litig., 228 F.R.D. 75, 95-98 (D. Mass. 2005) (same). An analysis of the
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t\11\.a I Grinnell factors that are relevant in this case clearly supports preliHtiRary approval of the Amended Agreement.
For all of the reasons set forth in the Court's Preliminary Approval Order, an analysis of these factors strongly supports this Court's final approval of the Amended Agreement as fair, reasonable and adequate.
II. Notice to the Class
Rule 23(e)(l) states that "notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs ." The notice must satisfy Rule 23, as well as due process requirements. Cf Besinga v. United States, 923 F.2d 133, 136-37 (9th Cir. 1991) (noting that the requirements of due process and Fed. R. Civ. P. 23 are similar). "[I]t is the court's duty to ensure that the notice ordered is reasonably calculated to reach the absent class members." Reppert v. Marvin Lumber and Cedar Co., 359 F.3d 53, 56 (1st Cir. 2004) (citations omitted). "The court has complete discretion in determining what constitutes a reasonable notice scheme, both in terms of how notice is given and what it contains." 7B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1797.6 (3d ed. 2005). " When individual notice is infeasible, notice by publication in a newspaper of national circulation ... is an acceptable substitute." Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781, 786 (7th Cir. 2004).
This Court finds that the notice program approved in its Preliminary Approval Order and now implemented by the parties was the best notice practicable under the circumstances and
satisfies the requirements ofdue process and Fed. R. Civ. P. 23. The parties represented that there
was no readily accessible list of the potential class members in this case and that such a list likely could not be created without enormous effort and expenditure. Nevertheless, through publication ofthe Notice in the Braille Monitor and Braille Forum, the parties likely provided notice to tens of
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thousands of blind individuals since those publications are from organizations specifically made

up of blind members, and focused on the issues of, blind individuals. The other organizations to

whom the Notice was sent include all of the Protection and Advocacy Systems around the United

States, federally-funded nonprofit corporations with a mandate to advocate for the rights of

individuals with disabilities, all Centers for Independent Living (federally-funded, nonprofit

corporations that provide services to maximize the independence of individuals with disabilities)

and a number ofdisability rights organizations. Providing the Notice to these organizations likely

resulted in reaching many additional blind individuals, including those who are not involved in any

of the mainstream blindness organizations.

This Court also finds that the content of the Notice complies with Rule 23 and due process.

"[T]he notice should be designed to inform each class member of what is happening in the action

and what the consequences of the dismissal or compromise may be." Wright & Miller, supra,

§ 1797.6 . The Notice met this standard, as it advised class members, in plain language, of:

The nature ofthe case;

The terms ofthe Amended Agreement, including the reliefobtained and the

class claims released by the Amended Agreement;

The deadline and method for objecting to the Amended Agreement;

The date and location of the final approval hearing;

Contact information for class counsel; and

•

Instructions on how to access the case docket via PACER or in person at the

courthouse.

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III. Attorneys' Fees and Costs Plaintiffs' counsel have submitted an Unopposed Petition for an Award ofAttorneys' Fees
and Costs, pursuant to Fed. R. Civ. P. 23(h) and 54(d)(2). Specifically, Plaintiffs' counsel request that the Court approve an award of attorneys' fees and costs in the amount of $397,536.70, plus additional reasonable fees and costs incurred by Plaintiffs between March 1, 2015 and May 7, 2015, as agreed to by the parties.
In evaluating a fee petition in a case such as this, the Court is to consider "the reasonableness of the hours spent and the hourly rate sought." Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518,529 (lstCir. 1991) (quoting in re Spillance, 884 F.2d 642,647 (1st Cir. 1989)). After due consideration of the filings of Plaintiffs' counsel and the relevant case law cited therein, this Court finds that a fee award in the amount of$397,536.70 is within the bounds of reasonableness under the circumstances of this case. The time spent by Plaintiffs' counsel in litigating this phase ofthis complex case clearly was justified. The Court also finds that the rates charged by Plaintiffs' counsel are commensurate with the rates charged by Boston attorneys of comparable experience in comparable matters. For these reasons, the Court approves the fee award agreed to by the parties in accordance with the Amended Agreement. IT IS HEREBY ORDERED AND DECREED THAT:
1. This Court has jurisdiction over the subject matter of this lawsuit and over all ofthe parties to the lawsuit, including the named Plaintiffs, all members of the class and Defendants.
2. The Court adopts and incorporates the findings of the Preliminary Approval Order and hereby approves the Amended Agreement as fair, reasonable and adequate in all respects. This is especially so in view of the complexity, expense and probable duration of further litigation, the risks of establishing liability, the intensive negotiations of experienced counsel with the
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assistance ofthe Special Master and the reasonableness of the relief obtained, particularly considering the range of possible outcomes and the attendant risks of continued litigation.
3. The Court finds that the Notice published to the class satisfied the requirements of due process and Fed. R. Civ. P. 23.
4. The Court finds that the attorneys' fees and costs sought by Plaintiffs' counsel are
reasonable and approves an award of fees and costs, in the amount of$~536.70, plus additional
reasonable fees and costs incurred by Plaintiffs between March 1, 2015 and May 7, 2015, as agreed to by the parties. 1
5. The Court dismisses as moot all pending motions. 6. The Court attaches hereto as Exhibit 1 and incorporates into this Order the terms of the Amended Agreement. 7. The Court retains jurisdiction over this matter for purposes of enforcing the decisions of the court-appointed Arbiter concerning compliance with the Amended Agreement.
It is so ordered.

Dated: 5(7/l ~

71~~fr!§
United States Distric Judge

1 In order to recover fees and costs incurred between March I, 201 5 and May 7, 201 5, Plaintiffs must submit a final invoice to Cardtronics by June 8, 2015. Plainti ffs may seek relief from the Court if the parties are unable to agree that such additional fees and costs are reasonable.
14

 
 Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 1 of 43
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:03−cv−11206−NMG

CLOSED

Commonwealth of Massachusetts et al v. E*Trade Access, Inc., et al Assigned to: Judge Nathaniel M. Gorton Cause: 28:1983 Civil Rights
Special Master

Date Filed: 06/25/2003 Date Terminated: 12/04/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

David R. Cohen Co. LPA

represented by David R. Cohen 24400 Chagrin Blvd Suite 300 Cleveland, OH 44122 216−831−0001 Fax: 866−357−3535 Email: david@specialmaster.biz LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Commonwealth of Massachusetts

represented by Patricia Correa Office of Town Counsel 333 Washington Street Brookline, MA 02445 617/730−2190 Email: pcorrea@brooklinema.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine M. Netski Sugarman, Rogers, Barshak & Cohen 101 Merrimac Street Boston, MA 02114 617−227−3030 Fax: 617−523−4001 Email: netski@srbc.com ATTORNEY TO BE NOTICED

Genevieve C. Nadeau Office of the Attorney General One Ashburton Place Boston, MA 02108 617−963−2121 Fax: 617−727−5762 Email: genevieve.nadeau@state.ma.us ATTORNEY TO BE NOTICED

Maura T. Healey Massacusetts Attorney General's Office One Ashburton Place 18th Flr. Boston, MA 02108 617−727−2200 ext. 2068 Fax: 617−727−5762 Email: maura.healey@state.ma.us ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 2 of 43

National Federation of the Blind, Inc.

represented by Anthony M. Doniger Sugarman, Rogers, Barshak & Cohen 9th Floor 101 Merrimac Street Boston, MA 02114 617−227−3030 Fax: 617−523−4001 Email: doniger@srbc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine M. Netski Sugarman, Rogers, Barshak & Cohen 9th Floor 101 Merrimac Street Boston, MA 02114 617−227−3030 Fax: 617−523−4001 Email: netski@srbc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Goldstein Brown, Goldstein & Levy, LLP 120 E. Baltimore Street Suite 1700 Baltimore, MD 21201 410−962−1030 Fax: 410−385−0869 Email: dfg@browngold.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon Krevor−Weisbaum Brown, Goldstein & Levy, LLP 120 E. Baltimore Street Suite 1700 Baltimore, MD 21202−6701 410−962−1030 Fax: 410−385−0869 Email: skw@browngold.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
National Federation of the Blind of Massachusetts, Inc.

represented by Anthony M. Doniger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon Krevor−Weisbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 3 of 43

Plaintiff Adrienne Asch
Plaintiff Richard Downs TERMINATED: 03/22/2004

represented by Amy F. Robertson Civil Rights Education and Enforcement Center 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: arobertson@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony M. Doniger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine M. Netski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel F. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Krevor−Weisbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy P. Fox Civil Rights Education and Enforcement Center 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Anthony M. Doniger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine M. Netski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel F. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Krevor−Weisbaum

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 4 of 43

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Theresa Jeraldi

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony M. Doniger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon Krevor−Weisbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Philip Oliver

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony M. Doniger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon Krevor−Weisbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 5 of 43

Plaintiff Jennifer Bose

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F. Goldstein (See above for address) LEAD ATTORNEY

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) ATTORNEY TO BE NOTICED

V. Defendant E*Trade Access, Inc.

represented by David A. Vogel Cooley Godward LLP One Freedom Square Reston Town Center 11951 Freedom Dr. Reston,, VA 02109−5656 703−456−8576 Fax: 703−456−8100 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas P. Lobel Cooley Godward LLP One Freedom Square * Reston Town Center 11951 Freedom Dr. Reston, VA 20190−5656 703−456−8000 Fax: 703−456−8100 Email: dlobel@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jenny K. Cooper Ropes & Gray − MA Prudential Tower 800 Boylston Street Boston, MA 02199−3600 617−951−8473 Email: jenny.cooper@ropesgray.com TERMINATED: 04/16/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Kociubes Bingham McCutchen LLP − MA One Federal Street Boston, MA 02110−1726 617−951−8000 Fax: 617−951−8736

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 6 of 43

Email: joe.kociubes@bingham.com TERMINATED: 04/16/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph F. Yenouskas Goodwin Procter LLP 901 New York Avenue, NW Washington, DC 20001 202−346−4000 Fax: 202−346−4444 Email: jyenouskas@goodwinprocter.com TERMINATED: 09/22/2004 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant E*Trade Bank

represented by Douglas P. Lobel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jenny K. Cooper (See above for address) TERMINATED: 04/16/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph L. Kociubes (See above for address) TERMINATED: 04/16/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph F. Yenouskas (See above for address) TERMINATED: 09/22/2004 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Electronic Funds Transfer Association

represented by Leigh−Ann M. Durant Nixon Peabody, LLP 100 Summer Street Boston, MA 02110 617−345−1258 Fax: 617−345−1300 ATTORNEY TO BE NOTICED

Defendant
Cardtronics, LP TERMINATED: 05/19/2010

represented by Douglas P. Lobel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol E. Head Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617−963−2690

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 7 of 43

Email: carol.head@state.ma.us TERMINATED: 04/16/2014 ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) ATTORNEY TO BE NOTICED

Jenny K. Cooper (See above for address) TERMINATED: 04/16/2014 ATTORNEY TO BE NOTICED

Joseph L. Kociubes (See above for address) TERMINATED: 04/16/2014 ATTORNEY TO BE NOTICED

Defendant Cardtronics, Inc.

represented by Douglas P. Lobel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol E. Head (See above for address) TERMINATED: 04/16/2014 ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) ATTORNEY TO BE NOTICED

Jenny K. Cooper (See above for address) TERMINATED: 04/16/2014 ATTORNEY TO BE NOTICED

Joseph L. Kociubes (See above for address) TERMINATED: 04/16/2014 ATTORNEY TO BE NOTICED

Defendant Cardtronics USA, Inc.

represented by Douglas P. Lobel Cooley Godward LLP One Freedom Square Reston Town Center 11951 Freedom Dr. Reston, VA 20190−5656 703−456−8000 Fax: 703−456−8100 Email: dlobel@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol E. Head (See above for address) TERMINATED: 04/16/2014 ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) ATTORNEY TO BE NOTICED

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 8 of 43

Jenny K. Cooper (See above for address) TERMINATED: 04/16/2014 ATTORNEY TO BE NOTICED

Interested Party ATM Industry Association

represented by Juan Alexander Concepcion Nixon & Peabody, LLP 100 Summer Street Boston, MA 02110 617−345−1140 Fax: 866−560−0766 Email: jconcepcion@nixonpeabody.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leigh−Ann M. Durant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party America's Community Bankers

represented by Juan Alexander Concepcion (See above for address) ATTORNEY TO BE NOTICED

Leigh−Ann M. Durant (See above for address) ATTORNEY TO BE NOTICED

Interested Party
Independent Community Bankers of America

represented by Juan Alexander Concepcion (See above for address) ATTORNEY TO BE NOTICED

Leigh−Ann M. Durant (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/25/2003
06/25/2003 06/25/2003 07/01/2003 07/01/2003 07/16/2003 07/16/2003

# Docket Text
1 COMPLAINT against E*Trade Access, Inc., E*Trade Bank Filing fee: $ 150, receipt number 48490, filed by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc..(Holahan, Sandra) (Entered: 06/26/2003)
Summons Issued as to E*Trade Access, Inc., E*Trade Bank. (Holahan, Sandra) (Entered: 06/26/2003)
Case assigned to Magistrate Judge Bowler for any future reference. (Holahan, Sandra) (Entered: 06/26/2003)
2 SUMMONS Returned Executed E*Trade Access, Inc. served on 6/27/2003, answer due 7/17/2003. (Holahan, Sandra) (Entered: 07/11/2003)
3 SUMMONS Returned Executed E*Trade Bank served on 6/27/2003, answer due 7/17/2003. (Holahan, Sandra) (Entered: 07/11/2003)
4 MOTION for Extension of Time to 7/24/2003 to File Answer re 1 Complaint, by E*Trade Access, Inc., E*Trade Bank.(Holahan, Sandra) (Entered: 07/18/2003)
5 CORPORATE DISCLOSURE STATEMENT by E*Trade Access, Inc., E*Trade Bank. (Holahan, Sandra) (Entered: 07/18/2003)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 9 of 43

07/17/2003 07/17/2003 07/17/2003 07/22/2003
07/22/2003
07/23/2003
07/29/2003 08/05/2003 08/05/2003 08/13/2003
08/21/2003 08/22/2003 08/25/2003
09/12/2003 09/12/2003 09/12/2003 09/22/2003

6 MOTION for Leave to Appear Pro Hac Vice by Douglas P. Lobel and Joseph F. Yenouskas Filing fee $ 100.00, receipt number 49030. filed by E*Trade Access, Inc., E*Trade Bank; c/s.(Tebo, Susan) (Entered: 07/22/2003)
7 Certificate of Good Standing by Douglas P. Lobel re 6 MOTION for Leave to Appear Pro Hac Vice by Douglas P. Lobel and Joseph F. Yenouskas Filing fee $ 100.00, receipt number 49030. (Tebo, Susan) (Entered: 07/22/2003)
8 Certificate of Good Standing by Joseph F. Yenouskas re 6 MOTION for Leave to Appear Pro Hac Vice by Douglas P. Lobel and Joseph F. Yenouskas Filing fee $ 100.00, receipt number 49030. (Tebo, Susan) (Entered: 07/22/2003)
9 AMENDED COMPLAINT against E*Trade Access, Inc., E*Trade Bank , filed by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Tebo, Susan) (Entered: 07/23/2003)
10 CERTIFICATE OF SERVICE filed by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver re 9 Amended Complaint. (Tebo, Susan) (Entered: 07/23/2003)
Judge Morris E. Lasker : Electronic ORDER entered granting 6 Motion for Leave to Appear Pro Hac Vice Added Douglas P. Lobel for E*Trade Access, Inc. and E*Trade Bank, Joseph F. Yenouskas for E*Trade Access, Inc. and E*Trade Bank cc/cl (Howarth, George) (Entered: 07/23/2003)
Judge Morris E. Lasker : ORDER entered −Motion Allowed re 4 MOTION for Extension of Time to 7/24/2003 to File Answer re 1 Complaint, filed by E*Trade Access, Inc., E*Trade Bank.cc/cl(Howarth, George) (Entered: 07/29/2003)
11 MOTION to Stay or, in the alternative, to transfer to the Eastern District of Virgina by E*Trade Access, Inc., E*Trade Bank.(Holahan, Sandra) (Entered: 08/07/2003)
12 MEMORANDUM in Support re 11 MOTION to Stay or, in the alternative, to transfer to the Eastern District of Virginia filed by E*Trade Access, Inc., E*Trade Bank. (Holahan, Sandra) (Entered: 08/07/2003)
13 UNOPPOSED MOTION for Extension of Time to 8/28/2003 to File response to motion to stay, or in the alternative, to transfer by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Holahan, Sandra) (Entered: 08/15/2003)
14 ASSENTED MOTION for Extension of Time to 9/12/2003 to File Answer re 9 Amended Complaint, by E*Trade Access, Inc., E*Trade Bank.(Holahan, Sandra) (Entered: 08/21/2003)
Judge Morris E. Lasker : ORDER entered granting re 14 MOTION for Extension of Time to 9/12/2003 to File Answer re 9 Amended Complaint, filed by E*Trade Access, Inc., E*Trade Bank cc/cl(Howarth, George) (Entered: 08/28/2003)
Judge Morris E. Lasker : ORDER entered granting re 13 MOTION for Extension of Time to 8/28/2003 to File filed by Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc., Richard Downs, Theresa Jeraldi, Adrienne Asch, Philip Oliver cc/cl(Howarth, George) (Entered: 08/28/2003)
15 MOTION to Dismiss by E*Trade Bank.(Holahan, Sandra) (Entered: 09/17/2003)
16 MEMORANDUM in Support re 15 MOTION to Dismiss filed by E*Trade Bank. (Attachments: # 1 Exhibit 1 − 5) NOT SCANNED(Holahan, Sandra) (Entered: 09/17/2003)
17 ANSWER to Amended Complaint by E*Trade Access, Inc..(Holahan, Sandra) (Entered: 09/17/2003)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 11 Motion to Stay or, in the alternative, to transfer to the Eastern District of Virginia. NO OPPOSITION

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 10 of 43

09/22/2003 09/26/2003 09/26/2003 09/26/2003 09/29/2003 09/30/2003
10/09/2003 10/10/2003 10/14/2003
10/14/2003
10/15/2003 10/15/2003 10/15/2003 10/20/2003
10/20/2003
10/20/2003

HAVING BEEN FILED, THE MOTION IS GRANTED AND THE CASE IS TRANSFERRED TO THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. THE CLERK IS ORDERED TO MAKE THE TRANSFER. cc/cl (Holahan, Sandra) (Entered: 09/25/2003)
Civil Case Terminated. (Holahan, Sandra) (Entered: 09/25/2003)
18 ASSENTED MOTION to Reopen Case by Commonwealth of Massachusetts.(Holahan, Sandra) (Entered: 09/30/2003)
19 Letter(non−motion) from Joseph L. Kociubes, Esq.. regarding electronic notice (Holahan, Sandra) (Entered: 09/30/2003)
20 Letter(non−motion) from Christine M. Netski, Esq.. regarding filing opposition in closed case. (Holahan, Sandra) (Entered: 09/30/2003)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 18 Motion to Reopen Case.cc/cl (Howarth, George) (Entered: 10/09/2003)
21 CONSOLIDATED RESPONSE IN OPPOSITION re 15 MOTION to Dismiss filed by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Attachments: # 1 Exhibit 1−4 NOT SCANNED)(Holahan, Sandra) (Entered: 10/01/2003)
22 NOTICE of Hearing on Motion 15 Motion to Dismiss Motion Hearing set for 11/6/2003 02:15 PM in Courtroom 8 before Morris E. Lasker.cc/cl (Howarth, George) (Entered: 10/09/2003)
23 MOTION for Leave to File reply brief in support of motion to dismiss by E*Trade Bank.(Holahan, Sandra) (Entered: 10/15/2003)
24 RESPONSE to Motion re 23 MOTION for Leave to File filed by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Holahan, Sandra) (Entered: 10/15/2003)
25 AFFIDAVIT of Michele M. Corey re 24 Response to Motion, by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Attachments: # 1 Exhibit A−H NOT SCANNED)(Holahan, Sandra) (Entered: 10/15/2003)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 23 Motion for Leave to File reply brief. MOTION ALLOWED. cc/cl (Holahan, Sandra) (Entered: 10/16/2003)
26 REPLY BRIEF re 15 MOTION to Dismiss filed by E*Trade Bank. (Attachments: # 1 Exhibit 1 NOT SCANNED)(Holahan, Sandra) (Entered: 10/16/2003)
27 REPLY BRIEF re 23 MOTION for Leave to File filed by E*Trade Bank. (Holahan, Sandra) (Entered: 10/17/2003)
29 MOTION for Leave to Appear Pro Hac Vice by Daniel F. Goldstein and Sharon Krevor−Weisbaum Filing fee $ 100.00, receipt number 51086. by Adrienne Asch, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Holahan, Sandra) (Entered: 10/28/2003)
30 Certificate of Good Standing by Daniel F. Goldstein re 29 MOTION for Leave to Appear Pro Hac Vice by Daniel F. Goldstein and Sharon Krevor−Weisbaum Filing fee $ 100.00, receipt number 51086. by Adrienne Asch, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Holahan, Sandra) (Entered: 10/28/2003)
31 Certificate of Good Standing by Sharon Krevor−Weisbaum re 29 MOTION for Leave to Appear Pro Hac Vice by Daniel F. Goldstein and Sharon Krevor−Weisbaum Filing fee $ 100.00, receipt number 51086. by Adrienne Asch, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 11 of 43

10/23/2003 10/29/2003
10/30/2003 11/03/2003 11/17/2003 12/19/2003 12/29/2003 01/15/2004 01/15/2004 01/15/2004
03/22/2004
03/22/2004
03/29/2004 04/14/2004 04/16/2004 04/16/2004 04/28/2004

the Blind, Inc., Philip Oliver. (Holahan, Sandra) (Entered: 10/28/2003)
28 ELECTRONIC*** Notice Resetting Motion Hearing on November 6, 2003 at 2:15 to: November 19, 2003 at 11:00a,m cc/cl (Howarth, George) Modified on 10/24/2003 (Holahan, Sandra). (Entered: 10/23/2003)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 29 Motion for Leave to Appear Pro Hac Vice Added Daniel F. Goldstein for National Federation of the Blind of Massachusetts, Inc.; National Federation of the Blind, Inc.; Philip Oliver; Adrienne Asch and Richard Downs, Sharon Krevor−Wisbaum for Theresa Jeraldi; National Federation of the Blind of Massachusetts, Inc.; National Federation of the Blind, Inc.; Philip Oliver; Adrienne Asch and Richard Downs (Howarth, George) Modified on 11/5/2003 (Howarth, George). (Entered: 11/05/2003)
32 ****ELECTRONIC****Notice of Motion hearing scheduled for 11/19/03 at 11:00 a.m; has been rescheduled to: 12/09/03 at 11:00 a.m.cc/cl (Howarth, George) (Entered: 10/30/2003)
33 Letter(non−motion) from John F. Henault. (Holahan, Sandra) (Entered: 11/04/2003)
34 NOTICE of Change of Address by Douglas P. Lobel (Holahan, Sandra) (Entered: 11/20/2003)
35 ASSENTED MOTION for Extension of Time to 1/15/2004 for supplemental briefing periord by E*Trade Access, Inc., E*Trade Bank.(Holahan, Sandra) Modified on 12/24/2003 (Holahan, Sandra). (Entered: 12/24/2003)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 35 Motion for Extension of Time for Supplemental Briefing Period.cc/cl (Howarth, George) (Entered: 01/06/2004)
36 NOTICE of Appearance by Jenny K. Cooper on behalf of E*Trade Access, Inc., E*Trade Bank (Holahan, Sandra) (Entered: 01/20/2004)
37 SUPPLEMENTAL BRIEF by E*Trade Bank in support of 15 MOTION to Dismiss. (Holahan, Sandra) (Entered: 01/20/2004)
38 SUPPLEMENTAL BRIEF by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver re 15 MOTION to Dismiss. (Holahan, Sandra) (Entered: 01/20/2004)
39 NOTICE by Adrienne Asch, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver of Amendment re 9 Amended Complaint by written consent of the adverse parties (Holahan, Sandra) (Entered: 03/29/2004)
40 SECOND AMENDED COMPLAINT against E*Trade Access, Inc., E*Trade Bank , filed by Jennifer Bose, Adrienne Asch, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Holahan, Sandra) (Entered: 03/29/2004)
41 Judge Morris E. Lasker : ORDER entered denying 15 Motion to Dismiss (Howarth, George) (Entered: 03/30/2004)
42 ANSWER to Second Amended Complaint by E*Trade Bank.(Howarth, George) (Entered: 04/21/2004)
43 Deft's Rule 12(b)(7) MOTION to Join Necessary Parties by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 04/21/2004)
44 MEMORANDUM in Support with attachments (1)−A−F re 43 MOTION Join Necessary Parties filed by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) (Entered: 04/21/2004)
45 ASSENTED TO MOTION for Extension of Time to 05/12/04 to file opposition to defts' Rule 12(b) (7) motion by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Howarth, George) Modified

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 12 of 43

05/10/2004 05/12/2004 05/12/2004 05/12/2004 05/21/2004 05/26/2004 06/04/2004 06/04/2004 06/09/2004 06/15/2004 06/16/2004 06/16/2004 06/16/2004
06/16/2004
06/16/2004
06/16/2004

on 5/7/2004 (Howarth, George). (Entered: 05/07/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 45 Motion for Extension of Time (Howarth, George) (Entered: 05/10/2004)
46 Opposition re 43 MOTION Join Necessary Parties filed by Commonwealth of Massachusetts. (Howarth, George) (Entered: 05/19/2004)
47 ASSENTED−TO− MOTION for Leave to File Excess Pages over the twenty (20)limit by Adrienne Asch, Jennifer Bose, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Howarth, George) (Entered: 05/21/2004)
48 Opposition re 43 MOTION Join Necessary Parties filed by Adrienne Asch, Jennifer Bose, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Howarth, George) (Entered: 05/21/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 47 Motion for Leave to File Excess Pages (Howarth, George) (Entered: 05/21/2004)
49 ASSENT TO MOTION for Leave to File Reply Brief by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 06/04/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 49 Motion for Leave to File Reply Brief (Howarth, George) (Entered: 06/04/2004)
50 MOTION for Extension of Time to three weeks to file reply brief by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 06/09/2004)
NOTICE of Hearing on Motion 43 MOTION Join Necessary Parties: Motion Hearing set for 8/24/2004 02:15 PM in Courtroom 8 before Morris E. Lasker. (Howarth, George) (Entered: 06/09/2004)
51 Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 50 Motion for Extension of Time (Howarth, George) (Entered: 06/15/2004)
52 MOTION to Preserve Evidence by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Howarth, George) (Entered: 06/17/2004)
53 MEMORANDUM in Support re 52 MOTION to Preserve Evidence filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Howarth, George) (Entered: 06/17/2004)
54 MOTION to Compel Production of Documents for a Scheduling Conference, and for Judcial Oversight of the Discovery Process by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Howarth, George) (Entered: 06/17/2004)
55 MEMORANDUM in Support re 54 MOTION to Compel MOTION for Discovery MOTION for Discovery filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Howarth, George) (Entered: 06/17/2004)
56 MOTION Shortern Time for Defendants to Respond to Plaintiffs' Motion to Preserve Evidence and for an Expedited Hearing re 52 MOTION to Preserve Evidence, 54 MOTION to Compel MOTION for Discovery MOTION for Discovery by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Howarth, George) (Entered: 06/17/2004)
57 MOTION Shortern Time for Defendants to Respond to Plaintiffs' Motion to Preserve Evidence and for an Expedited Hearing re 52 MOTION to Preserve Evidence, 54 MOTION to Compel MOTION for Discovery MOTION for Discovery by Adrienne

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 13 of 43

06/18/2004
06/22/2004
06/24/2004
06/25/2004 06/29/2004 07/01/2004 07/06/2004 07/06/2004 07/06/2004 07/08/2004 07/08/2004 07/13/2004 07/21/2004 07/27/2004 07/29/2004 07/29/2004 08/04/2004

Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Howarth, George) (Entered: 06/17/2004)
58 DECLARATION of Daniel F. Goldstein by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Howarth, George) (Entered: 06/29/2004)
59 STIPULATION ORDER CONCERNING PRESERVATION OF DOCUMENTS. by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, E*Trade Access, Inc., E*Trade Bank, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Howarth, George) (Entered: 07/01/2004)
60 JOIN MOTION for Entry of Stipulated Protective Order by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, E*Trade Access, Inc., E*Trade Bank, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Howarth, George) (Entered: 07/07/2004)
61 UNOPPOSED MOTION for Extension of Time to July 21, 2004 to file reply brief by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 07/07/2004)
63 UNOPPOSED MOTION for Extension of Time to July 21, 2004 to Respond to motion to compel by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 07/12/2004)
64 MOTION for Extension of Time to July 21, 2004 to Respond to pltfs' motion to compel by E*Trade Access, Inc., E*Trade Bank.Unopposed.(Howarth, George) (Entered: 07/15/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered denying AS MOOT 52 Motion to Preserve Evidence (Howarth, George) (Entered: 07/07/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered denying as Moot 57 Motion Shortern time for defendants to respond (Howarth, George) (Entered: 07/07/2004)
62 Judge Morris E. Lasker : ORDER entered STIPULATED ORDER CONCERNING PRESERVATION OF DOCUMENTS.(Howarth, George) (Entered: 07/08/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 61 Motion for Extension of Time Till Jury 29,2004 to file its Reoly Brief. (Howarth, George) (Entered: 07/13/2004)
65 Judge Morris E. Lasker : ORDER entered STIPULATION PROTECTIVE ORDER,See docket # 65 for full text.(Howarth, George) Modified on 7/19/2004 (Howarth, George). (Entered: 07/19/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 63 Motion for Extension of Time to respond to respond to motion to compel (Howarth, George) (Entered: 07/15/2004)
66 Opposition re 54 MOTION to Compel MOTION for Discovery MOTION to Compel (regarding fees and costs of their motion to compel) filed by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) (Entered: 07/23/2004)
NOTICE OF RESCHEDULING Motion Hearing set for August 24, 2004 at 2:15,The Hearing is now set for 9/13/2004 02:30 PM in Courtroom 8 before Morris E. Lasker. (Howarth, George) (Entered: 07/27/2004)
67 REPLY to Response to Motion re 43 MOTION Join Necessary Parties filed by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) (Entered: 07/30/2004)
68 Letter (non−motion) from John F. Henault,Esq. Confirming date of oral arguments on the motion to join neccessary parties will be Sept. 13, 2004 at 2:30 p.m.. (Howarth, George) (Entered: 08/02/2004)
69 REPLY MEMORANDUM in Support re 54 MOTION to Compel MOTION for Discovery Process (With Exhibits not scanned) filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 14 of 43

08/04/2004 08/09/2004 08/09/2004 08/09/2004 08/18/2004 08/18/2004 08/20/2004 08/23/2004 08/23/2004 08/23/2004
09/01/2004
09/01/2004 09/13/2004
09/17/2004 09/20/2004

Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Howarth, George) (Entered: 08/05/2004)
70 Assented to MOTION for Extension of Time to 8/6/04 to File Reply Memorandum by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver.(Bell, Marie) (Entered: 08/09/2004)
71 ASSENTED TO MOTION for Leave to File Surreply..(Howarth, George) Additional attachment(s) added on 9/8/2004 (Howarth, George). Modified on 9/8/2004 (Howarth, George).Unsealed on 8/26/04 see 77 (Entered: 08/10/2004)
72 SUR−REPLY to Motion re 71 MOTION for Leave to File . (Howarth, George) Additional attachment(s) added on 9/8/2004 (Howarth, George). Modified on 9/8/2004 (Howarth, George). Unsealed on 8/26/04 see motion 77 . (Entered: 08/10/2004)
73 ******SEALED******DECLARATION re 72 Sur−Reply to Motion. (Howarth, George) (Entered: 08/10/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 70 Motion for Extension of Time to File AReply Memorandum. (Howarth, George) (Entered: 08/18/2004)
74 ASSENTED TO MOTION for Leave to File a Sur Reply by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 08/19/2004)
76 DECLARATION of Jackie Lee Barrett re 75 Sur−Reply to Motion by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) (Entered: 08/25/2004)
Judge Morris E. Lasker : ELECTRONIC ORDER entered granting 74 Motion for Leave to File a Sur Reply to pltfs' motion to Compel. (Howarth, George) (Entered: 08/24/2004)
75 SUR−REPLY to Motion re 54 MOTION to Compel MOTION for Discovery MOTION to Compel MOTION for Discovery filed by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) (Entered: 08/24/2004)
77 ASSENTED TO MOTION to Unseal Document,pltf's surreply to defts' motion to join necessary parties.Referred to 71 and 72 not 73 Declaration. by Commonwealth of Massachusetts, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc..(Howarth, George) Modified on 9/9/2004 (Howarth, George). (Entered: 08/25/2004)
Judge Morris E. Lasker : ORDER entered Granting re 77 MOTION to Unseal Document 71 and 72 not 73 Declaration filed by Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.(Howarth, George) Modified on 9/9/2004 (Howarth, George).Modified to correct text error (Entered: 09/01/2004)
78 SUR−REPLY to Motion re 43 MOTION Join Necessary Parties filed by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) Additional attachment(s) added on 9/10/2004 (Howarth, George). (Entered: 09/10/2004)
ELECTRONIC Clerk's Notes for proceedings held before Judge Morris E. Lasker : Motion Hearing held on 9/13/2004 re 54 MOTION to Compel MOTION for Discovery MOTION to Compel MOTION for Discovery filed by Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc., Theresa Jeraldi, Adrienne Asch, Philip Oliver, Jennifer Bose, 43 MOTION Join Necessary Parties filed by E*Trade Access, Inc., E*Trade Bank. Arguments, taken under advisement. Pltf's motion to compel 54 is stayed until a ruling is required. (Court Reporter none.) (Howarth, George) (Entered: 09/21/2004)
80 DECLARATION Of Bethany P. Hyland,by Commonwealth of Massachusetts. (Howarth, George) (Entered: 09/22/2004)
79 Letter/request (non−motion) from Patricia Correa.Plus attachments and CD's not scanned (Howarth, George) (Entered: 09/20/2004)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 15 of 43

09/22/2004 09/22/2004 09/23/2004 09/27/2004 09/27/2004 09/30/2004 10/14/2004
10/14/2004
10/15/2004
10/20/2004
10/20/2004 10/28/2004 10/28/2004 11/09/2004 11/09/2004 11/09/2004

81 Judge Morris E. Lasker : ELECTRONIC ORDER entered denying 43 Motion Require that plaintiffs join third party merchants.For full text see docket no 81 . (Howarth, George) Modified on 9/24/2004 (Howarth, George). (Entered: 09/24/2004)
83 NOTICE of Withdrawal of Appearance Attorney Joseph F. Yenouskas terminated. (Howarth, George) (Entered: 09/28/2004)
82 Letter(non−motion) from Douglas P. Lobel in reponse to pltf's letter of September 17, 2004.. (Howarth, George) (Entered: 09/27/2004)
84 Letter from Judge Lasker to counsel of record to meet with the Court on October 26, 2004 at 10:00 a.m. to confer on how the case should proceed. (Howarth, George) (Entered: 09/28/2004)
89 NOTICE of Withdrawal of Appearance Joseph F. Yenouskas. (Howarth, George) (Entered: 10/20/2004)
85 MOTION to Substitute Party by E*Trade Access, Inc., E*Trade Bank. (Attachments: #(1) UNDERSEALED (2) Exhibit 2# 3 Exhibit 3# 34 Exhibit 4)(Howarth, George) (Entered: 10/06/2004)
86 MOTION to Amend 1 Complaint by plaintiffs to join Cardtronics,Lp and Cardtronics, Inc. as defts by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Attachments: # 1)(Simeone, Maria) (Entered: 10/18/2004)
88 MOTION to require E−Trade Access to appear and to Show Cause why it should not be held in contempt of court and memorandum in support thereof. by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Simeone, Maria) (Entered: 10/18/2004)
87 MEMORANDUM in Opposition re 85 to deft rule 25 MOTION to Substitute Party filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Attachments: # 1 # 2 # 3 # 4 # 5)(Simeone, Maria) (Entered: 10/18/2004)
90 Proposed Document(s) submitted by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Richard Downs, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. Document received: Scheduling Plan. (Howarth, George) (Entered: 10/25/2004)
91 Proposed Document(s) submitted by E*Trade Access, Inc., E*Trade Bank. Document received: Proposed for Proceeding with discovery and resolution of merits. (Howarth, George) (Entered: 10/28/2004)
92 Opposition re 86 MOTION to Amend 1 Complaint, filed by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) (Entered: 11/01/2004)
93 RESPONSE to Motion re 88 MOTION for Order to Show Cause filed by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) (Entered: 11/01/2004)
94 MOTION for Judgment on the Pleadings by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 11/09/2004)
95 MEMORANDUM in Support re 94 MOTION for Judgment on the Pleadings filed by E*Trade Access, Inc., E*Trade Bank. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Howarth, George) (Entered: 11/09/2004)
96 CERTIFICATE OF CONSULTATION re 94 MOTION for Judgment on the Pleadings and Motion for Oral Argument by Jenny K. Cooper, Joseph L. Kociubes, Douglas P. Lobel on behalf of E*Trade Access, Inc., E*Trade Bank by on behalf of E*Trade Access, Inc., E*Trade Bank. Related document: 94 MOTION for Judgment on the Pleadings filed by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 11/10/2004)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 16 of 43

11/23/2004
12/02/2004
12/06/2004 01/05/2005
01/11/2005 01/26/2005 02/03/2005 02/03/2005 02/04/2005 02/07/2005 02/07/2005 02/07/2005 02/07/2005
02/07/2005
02/07/2005
02/09/2005 02/09/2005

97 Opposition re 94 MOTION for Judgment on the Pleadings filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc., Philip Oliver. (Howarth, George) (Entered: 11/29/2004)
NOTICE of Hearing on Motion 94 MOTION for Judgment on the Pleadings, 85 MOTION to Substitute Party, 86 MOTION to Amend 1 Complaint,, 88 MOTION for Order to Show Cause: Motion Hearing set for 12/15/2004 11:00 AM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 12/02/2004)
98 MOTION for Leave to File a reply brief in support of motion for judgment on the pleadings. by E*Trade Bank.(Howarth, George) (Entered: 12/07/2004)
NOTICE of Hearing on Motion 94 MOTION for Judgment on the Pleadings, 85 MOTION to Substitute Party, 86 MOTION to Amend 1 Complaint,, 98 MOTION for Leave to File, 88 MOTION for Order to Show Cause:Plus all Currenty Pending Motions Motion Hearing set for 1/12/2005 10:00 AM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 01/05/2005)
NOTICE OF RESCHEDULING ALL CURRENTLY PENDING MOTIONSHearing set for 2/11/2005 10:00 AM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 01/11/2005)
99 MOTION for Leave to File Supplemental Memo. by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 02/02/2005)
100 The ATM Industry association's MOTION for Leave to File to file a brief. .(Howarth, George) (Entered: 02/07/2005)
101 JOINT MOTION for Leave to File Amici Curiae Brief by America's Community Bankers, Independent Community Bankers of America.(Howarth, George) (Entered: 02/07/2005)
105 Letter/request (non−motion) from Daniel F. Goldstein outlining outstanding motions. (Howarth, George) (Entered: 02/08/2005)
102 MOTION for Disclosure by Independent Community Bankers of America.(Patterson, Leigh−Ann) (Entered: 02/07/2005)
103 MOTION for Disclosure by ATM Industry Association.(Patterson, Leigh−Ann) (Entered: 02/07/2005)
104 MOTION for Disclosure by America's Community Bankers.(Patterson, Leigh−Ann) (Entered: 02/07/2005)
106 Opposition re 101 MOTION for Leave to File, 100 MOTION for Leave to File filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 02/08/2005)
110 PLAINTIFFS' ASSENT TO MOTION for Leave to File Supplemental memo in support of their opposition to defts',,motion for judgment on the pleadings. by Adrienne Asch, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Howarth, George) (Entered: 02/16/2005)
111 MEMORANDUM in Support of their Opposition re 94 MOTION for Judgment on the Pleadings filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 02/16/2005)
107 MOTION for Leave to File by Electronic Funds Transfer Association.(Patterson, Leigh−Ann) (Entered: 02/09/2005)
108 AMICUS BRIEF filed by Electronic Funds Transfer Association. (Patterson, Leigh−Ann) (Entered: 02/09/2005)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 17 of 43

02/10/2005 02/11/2005
02/11/2005
02/11/2005
02/16/2005 02/22/2005 02/22/2005 02/22/2005 02/23/2005 03/08/2005 03/18/2005
03/28/2005 03/28/2005 04/04/2005 04/04/2005

109 MOTION for Disclosure by Electronic Funds Transfer Association.(Patterson, Leigh−Ann) (Entered: 02/10/2005)
Documents terminated: 56 MOTION Shortern Time for Defendants to Respond to Plaintiffs' Motion to Preserve Evidence and for an Expedited Hearing re 52 MOTION to Preserve Evidence, 54 MOTION to Compel MOTION for Discovery MOTION for Discovery filed by Commonwealth of Massachusetts,, National Federation of the Blind, Inc.,, National Federation of the Blind of Massachusetts, Inc.,, Theresa Jeraldi,, Adrienne Asch,, Philip Oliver,, Jennifer Bose,. (Howarth, George) (Entered: 02/11/2005)
Documents terminated: 64 MOTION for Extension of Time to July 21, 2004 to Respond to pltfs' motion to compel filed by E*Trade Access, Inc.,, E*Trade Bank,, 71 MOTION for Leave to File, 77 MOTION to Unseal Document 73 Declaration filed by Commonwealth of Massachusetts,, National Federation of the Blind, Inc.,, National Federation of the Blind of Massachusetts, Inc.,. (Howarth, George) (Entered: 02/11/2005)
Clerk's Notes for proceedings held before Judge Morris E. Lasker : Motion Hearing held on 2/11/2005 re 88 MOTION for Order to Show Cause filed by Commonwealth of Massachusetts,, National Federation of the Blind, Inc.,, National Federation of the Blind of Massachusetts, Inc.,, Theresa Jeraldi,, Adrienne Asch,, Philip Oliver,, Jennifer Bose,, 85 MOTION to Substitute Party filed by E*Trade Access, Inc.,, E*Trade Bank,, 86 MOTION to Amend 1 Complaint, filed by Commonwealth of Massachusetts,, National Federation of the Blind, Inc.,, National Federation of the Blind of Massachusetts, Inc.,, Theresa Jeraldi,, Adrienne Asch,, Philip Oliver,, Jennifer Bose,, 94 MOTION for Judgment on the Pleadings filed by E*Trade Access, Inc.,, E*Trade Bank,. (Court Reporter Richard Romanow.) (Howarth, George) (Entered: 02/22/2005)
Judge Morris E. Lasker : ORDER entered granting 110 Motion for Leave to File (Howarth, George) (Entered: 02/16/2005)
112 TRANSCRIPT of Motion Hearing held on February 11, 2005 before Judge Lasker. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737−0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 02/23/2005)
113 Judge Morris E. Lasker : ORDER entered denying 94 Motion for Judgment on the Pleadings. For full text see docket no [ 113] (Howarth, George) (Entered: 03/03/2005)
114 Judge Morris E. Lasker : ORDER entered denying 85 Motion to Substitute Party., granting 86 Motion to Amend, denying 88 Motion for Order to Show Cause. For full text see Docket No. 114 . (Howarth, George) (Entered: 03/03/2005)
Judge Morris E. Lasker :Electronic.. ORDER entered granting 107 Motion for Leave to File (Howarth, George) Modified on 10/14/2005 (Howarth, George). (Entered: 09/26/2005)
116 Judge Morris E. Lasker : Case Management ORDER entered. (Howarth, George) (Entered: 03/22/2005)
115 THIRD AMENDED COMPLAINT against all defendants, filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc. to add Cardtronics, LP and Cardtronics, Inc. as Defendants.(Bell, Marie) (Entered: 03/21/2005)
117 DECLARATION of Tammerson Dilworth Jackson by Cardtronics, Inc.. (Howarth, George) (Entered: 03/29/2005)
118 DECLARATION of Teri Friedler a former employee of E*Trade Access, Inc.. (Howarth, George) (Entered: 03/29/2005)
119 SUMMONS Returned Executed Cardtronics, Inc. served on 3/22/2005, answer due 4/11/2005. (Howarth, George) (Entered: 04/06/2005)
120 SUMMONS Returned Executed Cardtronics, LP served on 3/22/2005, answer due 4/11/2005. (Howarth, George) (Entered: 04/06/2005)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 18 of 43

04/04/2005 04/06/2005 04/06/2005
04/06/2005
04/06/2005 04/06/2005 04/07/2005
04/07/2005
04/07/2005 04/07/2005
04/11/2005 04/11/2005 04/19/2005 04/20/2005 04/21/2005 04/21/2005 04/21/2005

121 SUMMONS Returned Executed as to VCardtronics LP, Inc.Sec of State of Texas (Howarth, George) (Entered: 04/06/2005)
126 ANSWER to Third Amended Complaint by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 04/11/2005)
127 MOTION for Partial Summary Judgment by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc. Against Defts Cardtronics, LP and Cardtronics, Inc..(Howarth, George) Modified on 4/13/2005 (Howarth, George). (Entered: 04/13/2005)
128 MEMORANDUM in Support re 127 MOTION Partial for Summary Judgment filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.Against Cardtronics, LP and Cardtronics, Inc.. (Howarth, George) (Entered: 04/13/2005)
129 STATEMENT of Undisputed facts re 127 MOTION Partial for Summary Judgment. (Howarth, George) (Entered: 04/13/2005)
130 ******SEALED****** EXHIBIT "B". (Howarth, George) (Entered: 04/13/2005)
122 MOTION for Partial Summary Judgment by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.against . (Attachments: # 1 Exhibit)not scanned against Cardtronics,LP, and Cardtronics, Inc.(Howarth, George) Modified on 4/7/2005 (Howarth, George). (Entered: 04/07/2005)
123 MEMORANDUM in Support re 122 MOTION for Partial Summary Judgment filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 04/07/2005)
124 STATEMENT of undisputed facts re 122 MOTION for Partial Summary Judgment. (Howarth, George) (Entered: 04/07/2005)
125 ******SEALED******EXHIBIT re 122 MOTION for Partial Summary Judgment by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 04/07/2005)
NOTICE of Hearing: Status Conference set for 4/28/2005 10:00 AM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 04/11/2005)
131 ANSWER to Third Amended Complaint by Cardtronics, LP, Cardtronics, Inc..(Howarth, George) (Entered: 04/14/2005)
132 ASSENTED TO MOTION for Extension of Time to May 20, 2005 to Opposition to motion for partial summary judgment by Cardtronics, LP, Cardtronics, Inc..(Howarth, George) (Entered: 04/21/2005)
NOTICE OF RESCHEDULING Status Conference set for 5/9/2005 01:30 PM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 04/20/2005)
133 MOTION to Compel by National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Howarth, George) (Entered: 04/25/2005)
134 ****** SEALED******EXHIBIT 5 re 133 MOTION to Compel by National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 04/25/2005)
135 ******SEALED****** EXHIBIT 6 re 133 MOTION to Compel by National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 04/25/2005)

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04/22/2005 04/27/2005 04/28/2005 05/17/2005 05/17/2005 06/15/2005 06/15/2005 06/15/2005 06/15/2005 06/15/2005 06/15/2005 06/15/2005
06/20/2005
06/20/2005
06/29/2005
06/30/2005 06/30/2005

Judge Morris E. Lasker : ORDER entered granting 132 Motion for Extension of Time (Howarth, George) (Entered: 04/28/2005)
136 MOTION for Extension of Time to May 20, 2005 to to respond to pltf's motion to compel and discovery requests. by Cardtronics, LP, Cardtronics, Inc..(Howarth, George) (Entered: 05/02/2005)
Judge Morris E. Lasker : ORDER entered granting 136 Motion for Extension of Time (Howarth, George) (Entered: 05/02/2005)
NOTICE of Hearing: Status Conference set for 7/11/2005 03:15 PM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 05/17/2005)
137 ASSENTED TO MOTION for Extension of Time to Repond to Pltfs' motion for s/j and to compel further answers by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Howarth, George) (Entered: 05/24/2005)
138 CROSS MOTION for Summary Judgment by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Howarth, George) (Entered: 06/20/2005)
139 MEMORANDUM in Support re 138 MOTION for Summary Judgment filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Howarth, George) (Entered: 06/20/2005)
140 Opposition re 133 MOTION to Compel filed by E*Trade Access, Inc., E*Trade Bank. (Howarth, George) (Entered: 06/20/2005)
141 Response by Cardtronics, LP, Cardtronics, Inc. to 122 MOTION for Partial Summary Judgment and Pltf's statemet of undisputed facts. (Howarth, George) (Entered: 06/20/2005)
142 Opposition re 127 MOTION for Summary Judgment filed by Cardtronics, LP, Cardtronics, Inc.. (Howarth, George) (Entered: 06/20/2005)
143 STATEMENT of material facts in support re 138 MOTION for Summary Judgment. (Howarth, George) (Entered: 06/20/2005)
144 CERTIFICATE OF SERVICE by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc. re 138 MOTION for Summary Judgment, 139 Memorandum in Support of Motion, 140 Opposition to Motion, 141 Response, 142 Opposition to Motion, 143 Statement of facts. (Howarth, George) (Entered: 06/20/2005)
145 ASSENTED TO MOTION for Extension of Time to July 29, 2005 to to respond to defts' cross−motion for summary judgment by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Howarth, George) (Entered: 06/22/2005)
146 ASSENT TO MOTION for Extension of Time to July 29, 2005 to file replies to defts' opposition to pltfs' motion for partial sumarry judgment.et al by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Howarth, George) (Entered: 06/22/2005)
147 ASSENTED TO MOTION for Leave to File by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, E*Trade Access, Inc., E*Trade Bank, Electronic Funds Transfer Association, Cardtronics, LP, Cardtronics, Inc., National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Howarth, George) (Entered: 06/30/2005)
Judge Morris E. Lasker : ORDER entered granting 147 Motion for Leave to File Supplemental Memorandum in opposition to defts' request for a stay. (Howarth, George) (Entered: 06/30/2005)
148 SUPPLEMENTAL MEMORANDUM in OPPOSITON to Defendants' request for a Stay by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 06/30/2005)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 20 of 43

07/07/2005 07/11/2005 07/11/2005 07/11/2005
07/13/2005 07/29/2005
07/29/2005
08/01/2005 08/01/2005 08/01/2005 08/05/2005
08/05/2005 08/05/2005
08/05/2005

149 MOTION for Leave to File response. by E*Trade Access, Inc., E*Trade Bank.(Howarth, George) (Entered: 07/11/2005)
150 Judge Morris E. Lasker : ORDER entered granting 149 Motion for Leave to File (Howarth, George) (Entered: 07/12/2005)
151 Response to pltfs' supplemental memorandum in opposition to defts' request for a stay by E*Trade Access, Inc., E*Trade Bank, Electronic Funds Transfer Association, Cardtronics, LP, Cardtronics, Inc.. (Howarth, George) (Entered: 07/12/2005)
Clerk's Notes for proceedings held before Judge Morris E. Lasker : Status Conference held on 7/11/2005. A date is scheduled for hearing on summary judgment motions. September 15, 2005 at 11:00 a.m.. Court directs parties to put in writing their positons concernign the issues discussed at the hearing (Court Reporter Donald Womack.) (Howarth, George) (Entered: 07/13/2005)
NOTICE of Hearing on Motion 122 MOTION for Partial Summary Judgment, 127 MOTION for Summary Judgment, 138 MOTION for Summary Judgment: Motion Hearing set for 9/15/2005 11:00 AM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 07/13/2005)
153 ASSENTED TO MOTION for Extension of Time to August 5, 2005 to to respond to cross−motion for summary judgment by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Howarth, George) (Entered: 08/01/2005)
154 ASSENTED TO MOTION for Extension of Time to August 5, 2005 to to file reply memorandum by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Howarth, George) (Entered: 08/01/2005)
152 TRANSCRIPT of Conference held on July 11, 2005 before Judge Lasker. Court Reporter: Donald E. Womack. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/01/2005)
Judge Morris E. Lasker : ORDER entered granting 153 Motion for Extension of Time (Howarth, George) (Entered: 08/02/2005)
Judge Morris E. Lasker : ORDER entered granting 154 Motion for Extension of Time (Howarth, George) (Entered: 08/02/2005)
155 Response to Statement of Material Facts in Support of defts' Cros−Motion for Summary Judgment on pltfs' claims under the American with Disabilities Act by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc. to 143 Statement of facts. (Howarth, George) (Entered: 08/09/2005)
156 Opposition re 138 MOTION for Summary Judgment filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Howarth, George) (Entered: 08/09/2005)
157 MEMORANDUM IN REPLY to Response to Motion re 127 MOTION for Summary Judgment filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 4 Exhibit 4#(Howarth, George) Modified on 8/9/2005 (Howarth, George). (Entered: 08/09/2005)
158 ****** SEALED ****** EXHIBIT (3) re Memorandum in Reply to defts' Opposition to pltfs' Motion for Partial Summary Judgment 127 MOTION for Summary Judgment by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 08/09/2005)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 21 of 43

08/16/2005 08/16/2005 08/16/2005
08/16/2005 08/26/2005 09/01/2005 09/02/2005 09/07/2005 09/07/2005
09/14/2005
09/14/2005
09/15/2005 09/15/2005 09/19/2005
09/19/2005 09/20/2005 09/30/2005

Document terminated (Motion was granted ): 98 MOTION for Leave to File filed by E*Trade Bank,. (Howarth, George) (Entered: 08/16/2005)
Document terminated Pleadings filed Motion is Moot : 99 MOTION for Leave to File filed by E*Trade Access, Inc.,, E*Trade Bank,. (Howarth, George) (Entered: 08/16/2005)
Documents terminated(These documents were incorrectly filed as motions,they should have been filed as disclosure statements): 102 MOTION for Disclosure filed by Independent Community Bankers of America,, 103 MOTION for Disclosure filed by ATM Industry Association,, 104 MOTION for Disclosure filed by America's Community Bankers,. (Howarth, George) (Entered: 08/16/2005)
Document terminated:(Incorrectly filed as a motion should have been filed as a disclosure statement) 109 MOTION for Disclosure filed by Electronic Funds Transfer Association,. (Howarth, George) (Entered: 08/16/2005)
159 SUGGESTION OF DEATH Upon the Record as to Philip Oliver. (Howarth, George) (Entered: 08/31/2005)
NOTICE OF RESCHEDULING Motion Hearing set for September 15, 2005, this MotionHearing is now set for 9/20/2005 10:00 AM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 09/01/2005)
160 UNOPPOSED MOTION for Extension of Time to September 7, 2005 to File Reply Brief by E*Trade Access, Inc., E*Trade Bank, Electronic Funds Transfer Association, Cardtronics, LP, Cardtronics, Inc..(Howarth, George) (Entered: 09/07/2005)
Judge Morris E. Lasker : ORDER entered granting 160 Motion for Extension of Time (Howarth, George) (Entered: 09/07/2005)
161 REPLY to Response to Motion re 138 MOTION for Summary Judgment filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6)(Lobel, Douglas) (Entered: 09/07/2005)
164 ASSENTED TO MOTION for Leave to File a Surreply to defendants' Cross−Motion for Summary Judgment by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Howarth, George) (Entered: 09/20/2005)
165 SUR−REPLY to Motion re 138 MOTION for Summary Judgment filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 09/20/2005)
162 ASSENTED TO MOTION for Leave to File Surreply to Defendants' Cross−Motion for Summary Judgment. by Commonwealth of Massachusetts.(Howarth, George) (Entered: 09/20/2005)
163 SUR−REPLY to Motion re 138 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Howarth, George) (Entered: 09/20/2005)
NOTICE OF RESCHEDULING Motion Hearing which was set for September 20, 2005, MoitonHearing is now set for 10/5/2005 10:00 AM in Courtroom 8 before Judge Morris E. Lasker.(The rescheduling was due length of a criminl trial)(Howarth, George) (Entered: 09/19/2005)
Judge Morris E. Lasker : ORDER entered granting 162 Motion for Leave to File (Howarth, George) (Entered: 09/20/2005)
NOTICE OF RESCHEDULING Motion Hearing which was set for October 5,2006, The motion Hearing is now set for 10/6/2005 02:00 PM in Courtroom 8 before Judge Morris E. Lasker. (Howarth, George) (Entered: 09/20/2005)
166 Assented to MOTION for Leave to File Supplemental Memorandum by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit Supplemental Memorandum)(Lobel, Douglas) (Entered: 09/30/2005)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 22 of 43

10/06/2005
10/11/2005 10/13/2005 12/23/2005 12/27/2005 12/27/2005 12/27/2005 12/27/2005 12/27/2005 01/05/2006 01/06/2006 01/06/2006 02/21/2006
02/24/2006 03/03/2006 03/03/2006 03/10/2006 03/16/2006

Clerk's Notes for proceedings held before Judge Morris E. Lasker : Motion Hearing held on 10/6/2005 re 138 MOTION for Summary Judgment filed by E*Trade Access, Inc.,, E*Trade Bank,, Cardtronics, LP,, Cardtronics, Inc.,, 122 MOTION for Partial Summary Judgment filed by Commonwealth of Massachusetts,, National Federation of the Blind, Inc.,, National Federation of the Blind of Massachusetts, Inc.,, Theresa Jeraldi,, Adrienne Asch,, Philip Oliver,, Jennifer Bose,. Arguments heard motion taken under advisement. (Court Reporter Carol Scott.) (Howarth, George) (Entered: 10/12/2005)
167 Response by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc. To New Evidence And Legal Authorities First Introduced By Plaintiffs At Oral Argument. (Lobel, Douglas) (Entered: 10/11/2005)
168 DECLARATION of Bethany H. Brown. (Howarth, George) (Entered: 10/17/2005)
169 Supplemental ADDENDUM re 138 MOTION for Summary Judgment filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Lobel, Douglas) (Entered: 12/23/2005)
Judge Morris E. Lasker : Electronic ORDER entered granting 100 Motion for Leave to File (Howarth, George) (Entered: 12/27/2005)
Judge Morris E. Lasker : Electronic ORDER entered granting 101 Motion for Leave to File (Howarth, George) (Entered: 12/27/2005)
Judge Morris E. Lasker : Electronic ORDER entered granting 137 Motion for Extension of Time (Howarth, George) (Entered: 12/27/2005)
Judge Morris E. Lasker : Electronic ORDER entered granting 145 Motion for Extension of Time for response to July 29, 2005 (Howarth, George) (Entered: 12/27/2005)
Judge Morris E. Lasker : Electronic ORDER entered granting 146 Motion for Extension of Time (Howarth, George) (Entered: 12/27/2005)
170 ASSENTED TO MOTION for Leave to File reponse to defts' submission of supplemental evidence. by Commonwealth of Massachusetts.(Howarth, George) (Entered: 01/09/2006)
Judge Morris E. Lasker : Electronic ORDER entered granting 170 Motion for Leave to File (Howarth, George) (Entered: 01/09/2006)
171 Response by Commonwealth of Massachusetts to defts' submission of supplemental evidence in support of defts' cross−motion for summay judgment.. (Howarth, George) (Entered: 01/09/2006)
172 Judge Morris E. Lasker : ORDER entered denying 122 Motion for Partial Summary Judgment, denying 127 Motion for Summary Judgment, denied as to counts I,II and V, decision reserved as to Counts III and IV 138 Motion for Summary Judgment (Howarth, George) (Entered: 02/24/2006)
Judge Morris E. Lasker : Electronic ORDER entered granting 164 Motion for Leave to File, granting 166 Motion for Leave to File (Howarth, George) (Entered: 02/24/2006)
173 MOTION for Clarification re 172 Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,,, by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 03/03/2006)
174 Letter (non−motion) from Attorney Daniel Goldstein to the Court with attachment. (Howarth, George) (Entered: 03/09/2006)
175 Letter/request (non−motion) from Defendants to the Court regarding Status of Case. (Lobel, Douglas) (Entered: 03/10/2006)
176 Opposition re 173 MOTION for Clarification re 172 Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,,, filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Netski, Christine) (Entered: 03/16/2006)

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04/05/2006 05/04/2006 05/04/2006 05/04/2006 05/10/2006 05/10/2006 05/11/2006 05/11/2006 05/16/2006 05/16/2006 05/16/2006 05/22/2006 05/23/2006 05/24/2006

NOTICE of Hearing on Motion 173 MOTION for Clarification re 172 Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,,,: Motion Hearing set for 5/10/2006 02:15 PM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) (Entered: 04/05/2006)
177 MOTION for Summary Judgment on Counts III, IV and V Due to Lack of Standing by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 05/04/2006)
178 MEMORANDUM in Support re 177 MOTION for Summary Judgment on Counts III, IV and V Due to Lack of Standing filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Lobel, Douglas) (Entered: 05/04/2006)
179 Statement of Material Facts L.R. 56.1 re 177 MOTION for Summary Judgment on Counts III, IV and V Due to Lack of Standing filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit)(Lobel, Douglas) (Entered: 05/04/2006)
180 Assented to MOTION for Extension of Time to June 21, 2006 to File Response/Reply To Defendants' Motion for Summary Judgment on Counts III, IV and V Due to Lack of Standing by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Netski, Christine) (Entered: 05/10/2006)
181 MOTION for Protective Order Staying Plaintiffs' Discovery On Defendants Until The Court Resolves Defendants' Two Motions For Summary Judgment On Plaintiffs' Lack Of Standing by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)(Lobel, Douglas) (Entered: 05/10/2006)
Judge Morris E. Lasker : Electronic ORDER entered terminated as settled between the parties 181 Motion for Protective Order (Howarth, George) (Entered: 05/15/2006)
Judge Morris E. Lasker : Electronic ORDER entered granted on consent 180 Motion for Extension of Time to File Response/Reply re 180 Assented to MOTION for Extension of Time to June 21, 2006 to File Response/Reply To Defendants' Motion for Summary Judgment on Counts III, IV and V Due to Lack of Standing (Howarth, George) (Entered: 05/16/2006)
182 MOTION for Summary Judgment on Count II Due to Lack of Standing by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 05/16/2006)
183 MEMORANDUM in Support re 182 MOTION for Summary Judgment on Count II Due to Lack of Standing filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Lobel, Douglas) (Entered: 05/16/2006)
184 Statement of Material Facts L.R. 56.1 re 182 MOTION for Summary Judgment on Count II Due to Lack of Standing filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Lobel, Douglas) (Entered: 05/16/2006)
185 Response by Adrienne Asch, Richard Downs, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc. TO THE COURT'S FEBRUARY 21, 2006 MEMORANDUM AND ORDER. (Attachments: # 1)(Netski, Christine) (Entered: 05/22/2006)
ElectronicClerk's Notes for proceedings held before Judge Morris E. Lasker : Telephone Conference held on 5/23/2006.Af hearing from counsel A hearing on the motion for clarificationis scheduled for June 13, 2006 at 11:00 a.m.. The parties are to confer to choose a date for a hearing on the defendants' motion for summary judgment. (Court Reporter none.) (Howarth, George) (Entered: 05/25/2006)
186 Letter from The Court to counsel setting the motion for clarification on Tuesday, June 13, 2006 at 11:00 a.m.. amd asking for a proposed date for the motion for summary

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05/24/2006 05/24/2006 05/25/2006 06/06/2006 06/06/2006 06/08/2006 06/09/2006 06/12/2006 06/12/2006
06/13/2006 06/13/2006 06/14/2006
06/28/2006 06/28/2006

judgment (Howarth, George) (Entered: 05/24/2006)
ELECTRONIC NOTICE of Hearing on Motion 173 MOTION for Clarification re 172 Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,,,: Motion Hearing set for 6/13/2006 11:00 AM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) (Entered: 05/24/2006)
187 Assented to MOTION for Extension of Time to 6/21/2006 to File Response/Reply by Commonwealth of Massachusetts.(Correa, Patricia) (Entered: 05/24/2006)
Judge Morris E. Lasker : Electronic ORDER entered granting 187 Motion for Extension of Time to File Response/Reply re 187 Assented to MOTION for Extension of Time to 6/21/2006 to File Response/Reply Responses due by 6/21/2006 (Howarth, George) (Entered: 05/25/2006)
188 NOTICE of Change of Address by Douglas P. Lobel (Lobel, Douglas) (Entered: 06/06/2006)
189 STIPULATION of Dismissal of Count II Against Defendants Cardtronics, Inc. and Cardtronics, LP by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Lobel, Douglas) (Entered: 06/06/2006)
190 Emergency MOTION to Continue by National Federation of the Blind, Inc.. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G)(Goldstein, Daniel) (Entered: 06/08/2006)
191 RESPONSE to Motion re 190 Emergency MOTION to Continue June 13, 2006 Hearing filed by E*Trade Access,Inc.,E*Trade Bank, Cardtronics, Inc., and Cardtronics,LP. (Lobel, Douglas) Modified on 6/13/2006 (Howarth, George). (Entered: 06/09/2006)
Judge Morris E. Lasker : Electronic ORDER entered granting 190 Motion to Continue.Motion Hearing set for 7/10/2006 02:15 PM in Courtroom 8 before Senior Judge Morris E. Lasker on plaintiff's motion to disqualify attorneys. (Howarth, George) (Entered: 06/14/2006)
ElectronicClerk's Notes for proceedings held before Judge Morris E. Lasker : Motion Hearing held on 6/12/2006 re 190 Emergency MOTION to Continue filed by National Federation of the Blind, Inc., The motion to continue is granted and the Court schedules at hearing on the motion to disqualify attorneys at July 10, 2006 at 2:15 p.m.. (Court Reporter none.) (Howarth, George) (Entered: 06/14/2006)
Notice of correction to docket made by Court staff. Correction: Docket No.191 corrected because: Per attorney request corrected filers. (Howarth, George) (Entered: 06/13/2006)
ELECTRONIC NOTICE of Hearing on Motion 190 Emergency MOTION to Continue: Motion Hearing set for 7/10/2006 02:15 PM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) (Entered: 06/13/2006)
192 MOTION to Disqualify Counsel Cooley Godward LLP by National Federation of the Blind, Inc.. (Attachments: # 1 Memorandum in Support of Motion to Disqualify Counsel# 2 Exhibit A1# 3 Exhibit A2# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit G1# 11 Exhibit G2# 12 Exhibit G3# 13 Exhibit H)(Goldstein, Daniel) (Entered: 06/14/2006)
193 Opposition re 192 MOTION to Disqualify Counsel Cooley Godward LLP From Representation of Defendants filed by E*Trade Access, Inc.. (Cooper, Jenny) (Entered: 06/28/2006)
194 Opposition re 192 MOTION to Disqualify Counsel Cooley Godward LLP From Representation of Defendants filed by E*Trade Access, Inc.. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7# 8 Exhibit Exhibit 8A# 9 Exhibit Exhibit 8B# 10 Exhibit Exhibit 8C)(Cooper, Jenny) (Entered: 06/28/2006)

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07/05/2006 07/05/2006 07/07/2006 07/07/2006
07/07/2006
07/10/2006
09/06/2006 09/07/2006 09/08/2006
09/11/2006 09/11/2006 09/12/2006 09/13/2006 09/14/2006
09/14/2006 09/14/2006 09/14/2006 09/18/2006

195 REPLY to Response to Motion re 192 MOTION to Disqualify Counsel Cooley Godward LLP filed by National Federation of the Blind, Inc.. (Attachments: # 1 Affidavit Daniel F. Goldstein)(Goldstein, Daniel) (Entered: 07/05/2006)
196 MOTION to Strike 193 Opposition to Motion, 194 Opposition to Motion, Declaration of Geoffrey C. Hazard, Jr. by National Federation of the Blind, Inc..(Goldstein, Daniel) (Entered: 07/05/2006)
ELECTRONIC NOTICE OF RESCHEDULING the Motion Hearing set for 7/10/06 at 2:15 p.m. the Motion Hearing is now set for 7/10/2006 02:45 PM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) (Entered: 07/07/2006)
197 Supplemental AFFIDAVIT in Opposition re 192 MOTION to Disqualify Counsel Cooley Godward LLP filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Affidavit Craig A. Guthery)(Lobel, Douglas) (Entered: 07/07/2006)
198 Opposition re 196 MOTION to Strike 193 Opposition to Motion, 194 Opposition to Motion, Declaration of Geoffrey C. Hazard, Jr. filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Lobel, Douglas) (Entered: 07/07/2006)
ElectronicClerk's Notes for proceedings held before Judge Morris E. Lasker : Motion Hearing held on 7/10/2006 re 192 MOTION to Disqualify Counsel Cooley Godward LLP filed by National Federation of the Blind, Inc.,Arguments;motion taken under advisement (Court Reporter Marcia Patrisso.) (Howarth, George) Modified on 7/11/2006 (Howarth, George). (Entered: 07/11/2006)
199 Judge Morris E. Lasker : ORDER entered denying 192 Motion to Disqualify Counsel. For Full Text see Docket No. 199 . (Howarth, George) (Entered: 09/07/2006)
200 Letter/request (non−motion) from Defendants regarding September 20, 2006 Hearing. (Lobel, Douglas) (Entered: 09/07/2006)
ELECTRONIC NOTICE OF RESCHEDULING Motion Hearing set for September 20, 2006; The Motion Hearing for Clarification is now set for 9/26/2006 10:00 AM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) (Entered: 09/08/2006)
201 Letter/request (non−motion) from Daniel F. Goldstein re: status of standing motions. (Attachments: # 1 Attachement)(Goldstein, Daniel) (Entered: 09/11/2006)
202 Letter/request (non−motion) from Defendants regarding Plaintiffs' proposed motion to amend complaint. (Lobel, Douglas) (Entered: 09/11/2006)
203 Letter/request (non−motion) from Daniel F. Goldstein. (Attachments: # 1 Proposed Schedule)(Goldstein, Daniel) (Entered: 09/12/2006)
204 Letter/request (non−motion) from Defendants regarding status of motions and further submission. (Lobel, Douglas) (Entered: 09/13/2006)
205 MOTION for Leave to Appear Pro Hac Vice by Amy F. Robertson and Timothy P. Fox by Theresa Jeraldi, Philip Oliver, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Netski, Christine) (Entered: 09/14/2006)
206 AFFIDAVIT of Amy F. Robertson by Theresa Jeraldi, Philip Oliver, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Netski, Christine) (Entered: 09/14/2006)
207 AFFIDAVIT of Timothy P. Fox by Theresa Jeraldi, Philip Oliver, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Netski, Christine) (Entered: 09/14/2006)
208 Letter from The Court to Attorneys Goldstein and Lobel.. (Howarth, George) (Entered: 09/15/2006)
209 MOTION for Leave to File a Fourth Amended and Supplemental Class Action Complaint by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 26 of 43

09/19/2006
09/20/2006 09/22/2006 09/22/2006 09/25/2006 09/26/2006 09/26/2006
09/27/2006 09/28/2006 10/02/2006
10/02/2006
10/04/2006 10/10/2006 10/10/2006
10/18/2006
10/18/2006

Exhibit 5)(Netski, Christine) Additional attachment(s) added on 9/22/2006 (Howarth, George). Modified on 9/22/2006 (Howarth, George). Modified on 9/22/2006 (Howarth, George). (Entered: 09/18/2006)
Judge Morris E. Lasker : Electronic ORDER entered granted upon payment of required fee 205 Motion for Leave to Appear Pro Hac Vice Added Amy F. Roberson for Adrienne Asch and Theresa Jeraldi, Timothy P. Fox for Adrienne Asch and Theresa Jeraldi (Howarth, George) (Entered: 09/20/2006)
Filing fee: $ 100.00, receipt number 75159 for 207 Affidavit Timothy Fox, 206 Affidavit Amy Robertson (Howarth, George) (Entered: 09/21/2006)
Notice of correction to docket made by Court staff. Correction: Exhibit in docket No. 209 corrected because: request of Counsel (Howarth, George) (Entered: 09/22/2006)
210 Recommendations for Scheduling Order and Defendants' Case Management Propsal. (Attachments: # 1 Exhibit Defendants' Proposed Schedule)(Lobel, Douglas) (Entered: 09/22/2006)
211 Letter/request (non−motion) from Plaintiffs. (Attachments: # 1 Exhibit 1)(Goldstein, Daniel) (Entered: 09/25/2006)
212 Letter/request (non−motion) from Christine M. Netski. (Netski, Christine) (Entered: 09/26/2006)
ElectronicClerk's Notes for proceedings held before Judge Morris E. Lasker : Motion Hearing held on 9/26/2006 re 173 MOTION for Clarification re 172 Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,,, filed by E*Trade Access, Inc.,, E*Trade Bank,, Court hears on scheduling issues. Cardtronics, LP,, Cardtronics, Inc.,. (Court Reporter Marcia G. Patrisso.) (Howarth, George) (Entered: 09/28/2006)
213 Judge Morris E. Lasker : ORDER entered. With regard to all outstanding motions.For Full Text See Docket No. 213 .(Howarth, George) (Entered: 09/27/2006)
Judge Morris E. Lasker : Electronic ORDER entered.granting re 189 Stipulation of Dismissal filed by E*Trade Access, Inc.,, E*Trade Bank,, Cardtronics, LP,, Cardtronics, Inc., (Howarth, George) (Entered: 10/13/2006)
214 TRANSCRIPT of Motion Hearing held on September 26, 2006 before Judge Lasker. Court Reporter: Marcia G. Patrisso. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737−8728 or the Clerk's Office. (Scalfani, Deborah) (Entered: 10/02/2006)
215 TRANSCRIPT of Motion Hearing held on October 6, 2005 before Judge Lasker. Court Reporter: Carol Lynn Scott. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/330−1377 or the Clerk's Office. (Scalfani, Deborah) (Entered: 10/02/2006)
216 Letter/request (non−motion) from Daniel F. Goldstein regarding hearing on September 26, 2006. (Goldstein, Daniel) (Entered: 10/04/2006)
217 NOTICE by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc. of Change of Law Firm Name (Lobel, Douglas) (Entered: 10/10/2006)
218 Judge Morris E. Lasker : ORDER entered denying 173 Motion for Clarification re 172 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment,,,,For Full Text see Docket No. 218 . (Howarth, George) (Entered: 10/11/2006)
219 MOTION to Amend Revised and Substitute Motion for Leave to File a Fourth Amended and Supplemental Class Action Complaint by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Netski, Christine) (Entered: 10/18/2006)
220 MEMORANDUM in Support re 219 MOTION to Amend Revised and Substitute Motion for Leave to File a Fourth Amended and Supplemental Class Action Complaint filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Netski, Christine)

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10/18/2006
10/18/2006
10/18/2006 10/18/2006 10/18/2006
10/19/2006 10/20/2006 10/25/2006 11/01/2006 11/02/2006 11/07/2006 11/07/2006 11/08/2006 11/08/2006

(Entered: 10/18/2006)
221 Assented to MOTION for Leave to File Excess Pages of Memorandum in Support of Their Revised and Substitute Motion for Leave to File a Fourth Amended and Supplemental Class Action Complaint by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Netski, Christine) (Entered: 10/18/2006)
222 MOTION to Certify Class FOR CERTIFICATION OF A CLASS AND SUBCLASS by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M Part 1# 14 Exhibit M Part 2# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P# 18 Exhibit Q# 19 Exhibit R# 20 Exhibit S# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W# 25 Exhibit X# 26 Exhibit Y# 27 Exhibit Z# 28 Exhibit AA# 29 Exhibit BB# 30 Exhibit CC# 31 Exhibit DD# 32 Exhibit EE# 33 Exhibit FF# 34 Exhibit GG# 35 Exhibit HH)(Netski, Christine) (Entered: 10/18/2006)
223 MEMORANDUM in Support re 222 MOTION to Certify Class FOR CERTIFICATION OF A CLASS AND SUBCLASS filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Netski, Christine) (Entered: 10/18/2006)
224 UNDER SEAL*******DECLARATION by Adrienne Asch, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 10/19/2006)
225 UNDER SEAL********MEMORANDUM in Support re 222 MOTION to Certify Class FOR CERTIFICATION OF A CLASS AND SUBCLASS filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Howarth, George) (Entered: 10/19/2006)
Judge Morris E. Lasker : Electronic ORDER entered granting 221 Motion for Leave to File Excess Pages (Howarth, George) (Entered: 10/23/2006)
226 MOTION for Certificate of Appealability by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 10/20/2006)
227 MOTION to Unseal Document Nos. 224 and 225 by Private Plaintiffs' by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Netski, Christine) (Entered: 10/25/2006)
228 STIPULATION Concerning Private Plaintiffs' Motion to Unseal Paper Nos. 224 and 225 by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Netski, Christine) (Entered: 11/01/2006)
229 Assented to MOTION for Extension of Time to November 10, 2006 to to file their Opposition to Defendants' Motion for Certification of Interlocutory Appeal by Commonwealth of Massachusetts.(Correa, Patricia) (Entered: 11/02/2006)
230 Joint MOTION for Extension of Time to Extend Briefing Schedule to Permit Discovery on Proposed New Plaintiffs by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 11/07/2006)
Judge Morris E. Lasker : Electronic ORDER entered granting 229 Motion for Extension of Time to respond to defts' motion for certification of Interlocutory Appeal. (Howarth, George) (Entered: 11/08/2006)
231 MEMORANDUM in Opposition re 226 MOTION for Certificate of Appealability filed by Commonwealth of Massachusetts. (Correa, Patricia) (Entered: 11/08/2006)
Judge Morris E. Lasker : Electronic ORDER entered granting 230 Motion for Extension of briefing schedule (Howarth, George) (Entered: 11/09/2006)

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11/13/2006 11/14/2006
11/17/2006 01/22/2007
01/23/2007 02/08/2007 03/02/2007 03/02/2007 03/02/2007 03/02/2007 03/02/2007 03/02/2007
03/02/2007
03/02/2007 03/02/2007

232 Joint MOTION for Leave to File A REPLY TO DEFENDANTS? MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 11/13/2006)
Judge Morris E. Lasker : Electronic ORDER entered granting 232 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Howarth, George) (Entered: 11/14/2006)
233 REPLY to Response to Motion re 226 MOTION for Certificate of Appealability (Interlocutory Appeal) filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit 1)(Lobel, Douglas) (Entered: 11/17/2006)
ELECTRONIC NOTICE of Hearing on Motion 177 MOTION for Summary Judgment on Counts III, IV and V Due to Lack of Standing, 222 MOTION to Certify Class FOR CERTIFICATION OF A CLASS AND SUBCLASS, 182 MOTION for Summary Judgment on Count II Due to Lack of Standing, 219 MOTION to Amend Revised and Substitute Motion for Leave to File a Fourth Amended and Supplemental Class Action Complaint: Motion Hearing set for 5/22/2007 11:00 AM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) (Entered: 01/22/2007)
234 STIPULATION (Joint) FOR EXTENSION OF BRIEFING SCHEDULE by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Lobel, Douglas) (Entered: 01/23/2007)
Judge Morris E. Lasker : Electronic ORDER entered.Motion Allowed re 234 Stipulation filed by E*Trade Access, Inc.,, E*Trade Bank,, Cardtronics, LP,, Cardtronics, Inc., (Howarth, George) (Entered: 02/09/2007)
235 Opposition re 182 MOTION for Summary Judgment on Count II Due to Lack of Standing filed by Commonwealth of Massachusetts. (Correa, Patricia) (Entered: 03/02/2007)
236 Statement of Material Facts L.R. 56.1 re 182 MOTION for Summary Judgment on Count II Due to Lack of Standing filed by Commonwealth of Massachusetts. (Correa, Patricia) (Entered: 03/02/2007)
237 DECLARATION Of Jenny R. Rossman by Commonwealth of Massachusetts. (Correa, Patricia) (Entered: 03/02/2007)
238 DECLARATION Amy Ruell by Commonwealth of Massachusetts. (Correa, Patricia) (Entered: 03/02/2007)
239 DECLARATION of Bethany Brown by Commonwealth of Massachusetts. (Correa, Patricia) (Entered: 03/02/2007)
240 Opposition re 219 MOTION to Amend Revised and Substitute Motion for Leave to File a Fourth Amended and Supplemental Class Action Complaint filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit)(Lobel, Douglas) (Entered: 03/02/2007)
241 MEMORANDUM in Opposition re 177 MOTION for Summary Judgment on Counts III, IV and V Due to Lack of Standing, 182 MOTION for Summary Judgment on Count II Due to Lack of Standing filed by Adrienne Asch, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit A−1# 3 Exhibit A−2# 4 Exhibit A−3# 5 Exhibit A−4# 6 Exhibit A−5)(Goldstein, Daniel) (Entered: 03/02/2007)
242 Opposition re 222 MOTION to Certify Class FOR CERTIFICATION OF A CLASS AND SUBCLASS filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit)(Lobel, Douglas) (Entered: 03/02/2007)
243 Assented to MOTION for Leave to File Excess Pages in Opp. to Pl's Mot. for Leave to File Fourth Amend. Compl. by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 03/02/2007)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 29 of 43

03/02/2007 03/02/2007
03/02/2007 03/02/2007 03/02/2007 03/02/2007
03/02/2007
03/05/2007 03/05/2007 03/05/2007
03/05/2007 03/05/2007 03/05/2007 03/05/2007 03/06/2007

244 MOTION for Summary Judgment on Grounds that Pl's Cannot Identify Non−Voice Remedy That Makes ATMs Accessible by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 03/02/2007)
MEMORANDUM in Support re 244 MOTION for Summary Judgment on Grounds that Pl's Cannot Identify Non−Voice Remedy That Makes ATMs Accessible filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit)(Lobel, Douglas) (Entered: 03/02/2007)
246 STATEMENT of facts re 244 MOTION for Summary Judgment on Grounds that Pl's Cannot Identify Non−Voice Remedy That Makes ATMs Accessible. (Lobel, Douglas) (Entered: 03/02/2007)
247 MOTION for Leave to File Excess Pages in Mem. in Support of Def. Mot. for Sum. Judg. on Grounds that Pl's Cannot Identify Non−Voice Remedy That Makes ATMs Accessible by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc..(Lobel, Douglas) (Entered: 03/02/2007)
248 DECLARATION Of Stanley J. Eichner by Commonwealth of Massachusetts. (Correa, Patricia) (Entered: 03/02/2007)
249 EXHIBIT re 177 MOTION for Summary Judgment on Counts III, IV and V Due to Lack of Standing, 182 MOTION for Summary Judgment on Count II Due to Lack of Standing, 241 Memorandum in Opposition to Motion, Addition Exhibits by Adrienne Asch, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Attachments: # 1 Exhibit I# 2 Exhibit J# 3 Exhibit J# 4 Exhibit L# 5 Exhibit M# 6 Exhibit G−1# 7 Exhibit G−2# 8 Exhibit F−2# 9 Exhibit F−1# 10 Exhibit E−1# 11 Exhibit E−2# 12 Exhibit D−1# 13 Exhibit D−2# 14 Exhibit C−1# 15 Exhibit C−2# 16 Exhibit B−1# 17 Exhibit B−2)(Goldstein, Daniel) (Entered: 03/02/2007)
250 MEMORANDUM in Support re 244 MOTION for Summary Judgment on Grounds that Pl's Cannot Identify Non−Voice Remedy That Makes ATMs Accessible filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit)(Lobel, Douglas) (Entered: 03/02/2007)
251 DECLARATION of Stanley Eichner by Commonwealth of Massachusetts. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Correa, Patricia) (Entered: 03/05/2007)
NOTICE of Hearing :Telephone Status Conference set for 3/7/2007 02:30 PM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) Modified on 3/8/2007 (Howarth, George). (Entered: 03/05/2007)
252 Assented to MOTION for Leave to File A Memorandum 40 Pages in Length in Support of Their Combined Opposition to Defendants' Motions for Summary Judgment on Counts II, III, IV and V Due to Lack of Standing by Adrienne Asch, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Goldstein, Daniel) (Entered: 03/05/2007)
253 DECLARATION of Stanley J. Eichner by Commonwealth of Massachusetts. (Attachments: # 1 Declaration of Stanley Eichner# 2 exhibit A part 1# 3 seichner exhibit A part 2# 4 exhibit A part 3# 5 exhibit B# 6 exhibit C# 7 exhibit D part 1# 8 exhibit D part 2# 9 exhibit E)(Correa, Patricia) (Entered: 03/05/2007)
254 MOTION for Extension of Time to 03−05−07 Commonwealth's Assented−To Motion To File Declaration of Stanley J. Eichner One Day Late by Commonwealth of Massachusetts.(Correa, Patricia) (Entered: 03/05/2007)
255 Letter/request (non−motion) from Defendants regarding Briefing Schedule. (Lobel, Douglas) (Entered: 03/05/2007)
259 Sealed Document.Letter plus exhibit−Sealed (Howarth, George) (Entered: 03/07/2007)
256 Letter/request (non−motion) from Daniel F. Goldstein. (Goldstein, Daniel) (Entered: 03/06/2007)

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03/06/2007 03/06/2007
03/07/2007 03/07/2007 03/07/2007
03/07/2007 03/07/2007 03/19/2007
04/02/2007 04/05/2007 04/11/2007 06/26/2007 06/28/2007
06/29/2007 06/29/2007

257 Assented to MOTION to File Response to Statement of Material Facts in Support of Defendants' Motions for Summary Judgment Due to Lack of Standing by Adrienne Asch, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Goldstein, Daniel) (Entered: 03/06/2007)
258 Statement of Material Facts L.R. 56.1 re 257 Assented to MOTION to File Response to Statement of Material Facts in Support of Defendants' Motions for Summary Judgment Due to Lack of Standing filed by Adrienne Asch, Jennifer Bose, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Goldstein, Daniel) (Entered: 03/06/2007)
Notice of correction to docket made by Court staff. Correction: Docket Number 245 corrected because: Exhibits were incorrectley filed to this motion. Image removed from entry. Corrected filing is Docket No. 250 (Howarth, George) Modified on 3/7/2007 (Abaid, Kim). (Entered: 03/07/2007)
ElectronicClerk's Notes for proceedings held before Judge Morris E. Lasker : Telephone Conference held on 3/7/2007.A Scheduling Conference with all parties in person will take place on March 19, 2007 at 2:00 p.m.. (Court Reporter none.) (Howarth, George) (Entered: 03/08/2007)
Judge Morris E. Lasker : Electronic ORDER entered granting on consent 252 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Howarth, George) (Entered: 03/09/2007)
Judge Morris E. Lasker : Electronic ORDER entered granting on consent 257 Private Plaintiffs motion to file response (Howarth, George) (Entered: 03/09/2007)
Judge Morris E. Lasker : Electronic ORDER entered granting on consent 254 Motion for Extension of Time (Howarth, George) (Entered: 03/09/2007)
ElectronicClerk's Notes for proceedings held before Judge Morris E. Lasker : Status Conference held on 3/19/2007.The status of the case was discussed. Arguments on motions on standing motion to amend, and the motion for class certification wil be heard on May 22, 2007 at 11:00 a.m.;Argument on cross−motions for summary judgment on the issue of voice−guidance technology will be heard on June 20,2007 at 10:00 a.m. (Court Reporter Shelly Killian.) (Howarth, George) (Entered: 03/20/2007)
260 Letter re: Briefing Schedule from David A. Vogel. (Abaid, Kim) (Entered: 04/03/2007)
E−Mail Notice re #260 originally issued on 4/5/07 returned as undeliverable. Name of Addressee: Leigh−ann Durant. Spoke with law firm, she has left the firm. Ms. Durant's email has been removed to avoid future returns. (Jones, Sherry) (Entered: 04/05/2007)
261 Letter/request (non−motion) from Douglas P. Lobel. (Lobel, Douglas) (Entered: 04/11/2007)
ELECTRONIC NOTICE of Hearing :Telephone Conference set for 6/28/2007 02:00 PM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) (Entered: 06/26/2007)
Electronic Clerk's Notes for proceedings held before Judge Morris E. Lasker : Telephone Conference held on 6/28/2007. Telephone conference held regarding and counsel outline of the settlement agreement was described to the Court. The Court awaits the parties papers. (Court Reporter none.) (Howarth, George) (Entered: 06/29/2007)
262 Supplemental Opposition re 219 MOTION to Amend Revised and Substitute Motion for Leave to File a Fourth Amended and Supplemental Class Action Complaint −− WITHDRAWAL OF OPPOSITION filed by E*Trade Access, Inc., E*Trade Bank, Cardtronics, LP, Cardtronics, Inc.. (Lobel, Douglas) (Entered: 06/29/2007)
263 Assented to MOTION Preliminary Approval of Class Action Settlement by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Attachments: # 1 Exhibit A − Part 1# 2 Exhibit A − Part 2# 3 Exhibit A − Part 3# 4 Exhibit A − Part 4#

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 31 of 43

06/29/2007 06/29/2007 06/29/2007 07/05/2007 07/05/2007 07/16/2007 07/23/2007
07/26/2007 09/07/2007

5 Exhibit A − Part 5# 6 Exhibit A − Part 6# 7 Exhibit B# 8 Exhibit C# 9 Exhibit D# 10 Exhibit E# 11 Exhibit F# 12 Exhibit G)(Goldstein, Daniel) (Entered: 06/29/2007)
264 MEMORANDUM in Support re 263 Assented to MOTION Preliminary Approval of Class Action Settlement filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Goldstein, Daniel) (Entered: 06/29/2007)
265 Joint MOTION to Certify Class for Settlement by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Cardtronics, LP, Cardtronics, Inc., National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Goldstein, Daniel) (Entered: 06/29/2007)
266 MEMORANDUM in Support re 265 Joint MOTION to Certify Class for Settlement filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, Cardtronics, LP, Cardtronics, Inc., National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc.. (Goldstein, Daniel) (Entered: 06/29/2007)
Judge Morris E. Lasker : Electronic ORDER entered granting on consent 263 Motion Motion Preliminary Approval of Class Action Settlement and for Fairness Hearing (Howarth, George) (Entered: 07/27/2007)
Judge Morris E. Lasker : Electronic ORDER entered granting 265 Joint Motion to Certification of a Settlement Class (Howarth, George) (Entered: 07/27/2007)
ELECTRONIC NOTICE of Hearing :Fairness Hearing Hearing set for 12/4/2007 11:00 AM in Courtroom 8 before Senior Judge Morris E. Lasker. (Howarth, George) (Entered: 07/16/2007)
267 Proposed Document(s) submitted by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. Document received: Memorandum and Order Granting Unopposed Motion for Preliminary Approval of Class Action Settlement and for Fairness Hearing. (Attachments: # 1 Exhibit)(Netski, Christine) (Entered: 07/23/2007)
268 Judge Morris E. Lasker : ORDER entered. MEMORANDUM AND ORDER Granting Unopposed motion for Preliminary Approval of Class Action Settlement and for Fairness Hearing.For full Text see Docket No. 268 (Attachments: # 1 Exhibit A)(Howarth, George) (Entered: 07/27/2007)
Motions terminated: 227 MOTION to Unseal Document Nos. 224 and 225 by Private Plaintiffs' filed by National Federation of the Blind, Inc., Adrienne Asch, Jennifer Bose, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., 247 MOTION for Leave to File Excess Pages in Mem. in Support of Def. Mot. for Sum. Judg. on Grounds that Pl's Cannot Identify Non−Voice Remedy That Makes ATMs Accessible filed by Cardtronics, Inc., E*Trade Bank, Cardtronics, LP, E*Trade Access, Inc., 243 Assented to MOTION for Leave to File Excess Pages in Opp. to Pl's Mot. for Leave to File Fourth Amend. Compl. filed by Cardtronics, Inc., E*Trade Bank, Cardtronics, LP, E*Trade Access, Inc., 209 MOTION for Leave to File a Fourth Amended and Supplemental Class Action Complaint filed by National Federation of the Blind, Inc., Adrienne Asch, Jennifer Bose, Theresa Jeraldi, 133 MOTION to Compel filed by National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc., 219 MOTION to Amend Revised and Substitute Motion for Leave to File a Fourth Amended and Supplemental Class Action Complaint filed by National Federation of the Blind, Inc., Adrienne Asch, Jennifer Bose, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., 222 MOTION to Certify Class FOR CERTIFICATION OF A CLASS AND SUBCLASS filed by National Federation of the Blind, Inc., Adrienne Asch, Jennifer Bose, Theresa Jeraldi, National Federation of the Blind of Massachusetts, Inc., 182 MOTION for Summary Judgment on Count II Due to Lack of Standing filed by Cardtronics, Inc., E*Trade Bank, Cardtronics, LP, E*Trade Access, Inc., 244 MOTION for Summary Judgment on Grounds that Pl's Cannot Identify Non−Voice Remedy That Makes ATMs Accessible filed by Cardtronics, Inc., E*Trade Bank, Cardtronics, LP, E*Trade Access, Inc., 196 MOTION to Strike 193 Opposition to Motion, 194 Opposition to Motion, Declaration of Geoffrey C. Hazard, Jr. filed by National Federation of the Blind, Inc., 177 MOTION for Summary Judgment on Counts III, IV and V Due to Lack of Standing filed by Cardtronics, Inc., E*Trade Bank, Cardtronics, LP, E*Trade Access, Inc., 226

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09/10/2007 09/11/2007 09/11/2007 09/27/2007 11/19/2007
11/19/2007
11/19/2007 11/19/2007 11/19/2007 11/19/2007 11/19/2007 11/19/2007 12/04/2007 12/04/2007 04/30/2010

MOTION for Certificate of Appealability filed by Cardtronics, Inc., E*Trade Bank, Cardtronics, LP, E*Trade Access, Inc.. (Howarth, George) (Entered: 09/07/2007)
Reopen Document 219 MOTION to Amend Revised and Substitute Motion for Leave to File a Fourth Amended and Supplemental Class Action Complaint Closed in error. (Howarth, George) (Entered: 09/10/2007)
Judge Morris E. Lasker : Electronic ORDER entered granting 219 Motion to File Fourth Amended and Supplemental Class Action Complaint. (Howarth, George) (Entered: 09/11/2007)
269 Fourth AMENDED COMPLAINT against all defendants, filed by Adrienne Asch, Theresa Jeraldi, Jennifer Bose, Philip Oliver, Commonwealth of Massachusetts, National Federation of the Blind, Inc., National Federation of the Blind of Massachusetts, Inc..(Netski, Christine) (Entered: 09/11/2007)
270 Objection by Mason P. James to proposed settlement 267 Proposed Settlement (Howarth, George) (Entered: 09/28/2007)
271 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (UNOPPOSED) by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 # 2 Exhibit 1 to Order# 3 Exhibit 1A TO ORDER# 4 Exhibit 1B TO ORDER# 5 Exhibit 1C TO ORDER)(Netski, Christine) (Entered: 11/19/2007)
272 MEMORANDUM in Support re 271 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (UNOPPOSED) MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (UNOPPOSED) filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Netski, Christine) (Entered: 11/19/2007)
273 MOTION for Attorney Fees and Costs (Unopposed) by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind of Massachusetts, Inc..(Netski, Christine) (Entered: 11/19/2007)
274 DECLARATION of Marc Maurer by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Netski, Christine) (Entered: 11/19/2007)
275 DECLARATION of Daniel F. Goldstein by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1)(Netski, Christine) (Entered: 11/19/2007)
276 DECLARATION of Christine M. Netski by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 # 2 # 3)(Netski, Christine) (Entered: 11/19/2007)
277 DECLARATION of Amy F. Robertson by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1)(Netski, Christine) (Entered: 11/19/2007)
278 DECLARATION of Amy F. Robertson (Second Declaration) by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 # 2 # 3)(Netski, Christine) (Entered: 11/19/2007)
Electronic Clerk's Notes for proceedings held before Judge Morris E. Lasker : granting 271 Motion for approval of settlement; granting 273 Motion for Attorney Fees; Settlement Conference held on 12/4/2007. (Court Reporter: Joyce.) (Folan, Karen) (Entered: 12/04/2007)
279 Judge Morris E. Lasker : FINAL ORDER AND JUDGMENT entered. (Attachments: # 1 Exhibit 1# 2 Exhibit 1A# 3 Exhibit 1B# 4 Exhibit 1C)(Folan, Karen) (Entered: 12/04/2007)
280 MOTION For Preliminary Approval of Proposed Remediation Plan Concerning Class Action Settlement Agreement and for a Fairness Hearing (Joint) by Adrienne Asch, Jennifer Bose, Cardtronics, Inc., Cardtronics, LP, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Netski, Christine) (Entered: 04/30/2010)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 33 of 43

04/30/2010
04/30/2010 04/30/2010 05/18/2010 05/19/2010 05/21/2010 09/10/2010 09/14/2010 09/14/2010 10/22/2010
10/29/2010
11/03/2010
11/03/2010 07/29/2011

281 MEMORANDUM in Support re 280 MOTION For Preliminary Approval of Proposed Remediation Plan Concerning Class Action Settlement Agreement and for a Fairness Hearing (Joint) MOTION For Preliminary Approval of Proposed Remediation Plan Concerning Class Action Settlement Agreement and for a Fairness Hearing (Joint) filed by Adrienne Asch, Jennifer Bose, Cardtronics, Inc., Cardtronics, LP, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Netski, Christine) (Entered: 04/30/2010)
282 MOTION to Substitute Party by Adrienne Asch, Jennifer Bose, Cardtronics, Inc., Cardtronics, LP, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Netski, Christine) (Entered: 04/30/2010)
Case Reassigned to Judge Nathaniel M. Gorton. Senior Judge Morris E. Lasker no longer assigned to the case. Counsel are directed to the Court's Standing Orders re: Electronic Case Filing. (Diskes, Sheila) (Entered: 05/03/2010)
283 Judge Nathaniel M. Gorton: ORDER entered re 280 . (Hearing set for 8/19/2010 02:00 PM in Courtroom 4 before Judge Nathaniel M. Gorton) (Duong, Diep) (Entered: 05/19/2010)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 280 Motion preliminary approval; granting 282 Motion to Substitute Party. Cardtronics USA, Inc. added. Cardtronics, LP terminated (Nicewicz, Craig) (Entered: 05/19/2010)
ELECTRONIC NOTICE OF RESCHEDULING Fairness Hearing set for 9/15/2010 02:30 PM in Courtroom 4 before Judge Nathaniel M. Gorton. (Nicewicz, Craig) (Entered: 05/21/2010)
284 NOTICE of Appearance by Maura T. Healey on behalf of Commonwealth of Massachusetts (Healey, Maura) (Entered: 09/10/2010)
285 Joint MOTION to Continue Fairness Hearing to November 3, 2010 at 2:30 p.m. by Adrienne Asch, Jennifer Bose, Cardtronics USA, Inc., Cardtronics, Inc., Cardtronics, LP, Commonwealth of Massachusetts, National Federation of the Blind, Inc..(Netski, Christine) (Entered: 09/14/2010)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 285 Motion to Continue. Fairness Hearing/Final Settlement Conference set for 11/3/2010 02:30 PM in Courtroom 4 before Judge Nathaniel M. Gorton. (Nicewicz, Craig) (Entered: 09/14/2010)
286 Joint MOTION FINAL APPROVAL OF PROPOSED REMEDIATION PLAN CONCERNING CLASS ACTION SETTLEMENT AGREEMENT by Adrienne Asch, Jennifer Bose, Cardtronics USA, Inc., Cardtronics, Inc., Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit A)(Netski, Christine) (Entered: 10/22/2010)
287 Amended MOTION FOR FINAL APPROVAL OF PROPOSED REMEDIATION PLAN CONCERNING CLASS ACTION SETTLEMENT AGREEMENT (JOINT) by Adrienne Asch, Jennifer Bose, Cardtronics USA, Inc., Cardtronics, Inc., Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit A)(Netski, Christine) (Entered: 10/29/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Nathaniel M. Gorton: Final Settlement Conference held on 11/3/2010, finding as moot 286 Motion ; granting 287 Motion for Final Approval of Remediation Plan re: Settlement Agremeent. (Court Reporter: Cheryl Dahlstrom at 617−951−4555.)(Attorneys present: Krevor−Weisbaum, Netski, Healey, Kociubes) (Nicewicz, Craig) (Entered: 11/03/2010)
288 Judge Nathaniel M. Gorton: ORDER entered. ORDER FOR FINAL APPROVAL OF REMEDIATION PLAN CONCERNING CLASS ACTION SETTLEMENT AGREEMENT (Duong, Diep) (Entered: 11/04/2010)
290 MOTION for Contempt by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc..(Netski, Christine) (Entered: 07/29/2011)

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 34 of 43

07/29/2011
08/03/2011 08/04/2011 08/15/2011 08/16/2011 08/16/2011 08/24/2011 08/24/2011 08/24/2011 08/24/2011 08/31/2011
08/31/2011 08/31/2011 09/14/2011 09/15/2011

291 MEMORANDUM in Support re 290 MOTION for Contempt filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit A−1, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X)(Netski, Christine) (Entered: 07/29/2011)
292 Assented to MOTION for Extension of Time to August 19, 2011 to File Response/Reply as to 290 MOTION for Contempt by Cardtronics, Inc., Cardtronics, LP.(Cooper, Jenny) (Entered: 08/03/2011)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 292 Motion for Extension of Time to File Response/Reply re 290 MOTION for Contempt Responses due by 8/19/2011 (Patch, Christine) (Entered: 08/04/2011)
293 Assented to MOTION for Extension of Time to 8/24/2011 to Respond to Plaintiffs' Motion for Contempt by Cardtronics, Inc., Cardtronics, LP.(Lobel, Douglas) Modified on 8/16/2011 to correct the relief type of the motion to motion to ext. time to file resp./reply. (Finn, Mary). (Entered: 08/15/2011)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 293 Motion for Extension of Time Response to Motion for Contempt. (Patch, Christine) (Entered: 08/16/2011)
Set/Reset Deadlines as to 290 MOTION for Contempt. Responses due by 8/24/2011 (Patch, Christine) (Entered: 08/16/2011)
294 Cross MOTION For Enforcement Of The Settlement Agreement by Cardtronics, Inc., Cardtronics, LP.(Lobel, Douglas) (Entered: 08/24/2011)
295 NOTICE by Cardtronics, Inc., Cardtronics, LP re 290 MOTION for Contempt Notice of Response to Plaintiffs' Motion (Lobel, Douglas) (Entered: 08/24/2011)
296 MOTION to Seal Document 294 Cross MOTION For Enforcement Of The Settlement Agreement, 290 MOTION for Contempt by Cardtronics, Inc., Cardtronics, LP.(Lobel, Douglas) (Entered: 08/24/2011)
297 MEMORANDUM in Support re 296 MOTION to Seal Document 294 Cross MOTION For Enforcement Of The Settlement Agreement, 290 MOTION for Contempt filed by Cardtronics, Inc., Cardtronics, LP. (Lobel, Douglas) (Entered: 08/24/2011)
299 Assented to MOTION for Extension of Time to September 23, 2011 to File Response/Reply as to 294 Cross MOTION For Enforcement Of The Settlement Agreement and Request for Leave to File a Reply Memorandum in Support of Plaintiffs' Motion for Contempt by Adrienne Asch, Jennifer Bose, National Federation of the Blind of Massachusetts, Inc..(Netski, Christine) (Entered: 08/31/2011)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 296 Motion to Seal Document (Patch, Christine) (Entered: 08/31/2011)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 299 Motion for Extension of Time to File Response/Reply re 294 Cross MOTION For Enforcement Of The Settlement Agreement Responses due by 9/23/2011 (Patch, Christine) (Entered: 08/31/2011)
300 Assented to MOTION for Extension of Time to September 30, 2011 to File Response/Reply Memorandum and Opposition to Cardtronics' Cross−Motion for Enforcement of the Settlement Agreement by Adrienne Asch, Jennifer Bose, National Federation of the Blind, Inc..(Netski, Christine) (Entered: 09/14/2011)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 300 Motion for Extension of Time to File Response/Reply re 294 Cross MOTION For Enforcement Of The Settlement Agreement Responses due by 9/30/2011 (Patch, Christine) (Entered: 09/15/2011)

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09/30/2011
10/12/2011 10/12/2011 10/13/2011
10/20/2011 10/20/2011 10/21/2011 10/21/2011 10/21/2011 12/15/2011
12/23/2011 12/29/2011 12/29/2011
12/30/2011

301 MEMORANDUM in Opposition re 294 Cross MOTION For Enforcement Of The Settlement Agreement and in Support of 290 Motion for Contempt, filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc, filed under seal. Please note: Exhibits 1−11 not scanned due to size. (Patch, Christine) (Entered: 09/30/2011)
302 NOTICE of Appearance by Carol E. Head on behalf of Cardtronics USA, Inc., Cardtronics, Inc., Cardtronics, LP (Head, Carol) (Entered: 10/12/2011)
303 Assented to MOTION for Leave to File Reply Memorandum by Cardtronics, Inc., Cardtronics, LP.(Head, Carol) (Entered: 10/12/2011)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 303 Motion for Leave to File Reply Brief; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Patch, Christine) (Entered: 10/13/2011)
304 Assented to MOTION to Seal Document by Cardtronics USA, Inc., Cardtronics, Inc., Cardtronics, LP.(Lobel, Douglas) (Entered: 10/20/2011)
305 MEMORANDUM in Support re 304 Assented to MOTION to Seal Document filed by Cardtronics USA, Inc., Cardtronics, Inc., Cardtronics, LP. (Lobel, Douglas) (Entered: 10/20/2011)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 304 Motion to Seal Document (Patch, Christine) (Entered: 10/21/2011)
306 NOTICE by Cardtronics USA, Inc., Cardtronics, Inc., Cardtronics, LP re 295 Notice (Other) of Reply (Lobel, Douglas) (Entered: 10/21/2011)
307 SEALED REPLY to Response to 294 Cross MOTION For Enforcement Of The Settlement Agreement filed by Cardtronics USA, Inc., Cardtronics, Inc., Cardtronics, LP. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Patch, Christine) (Entered: 10/25/2011)
308 Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: " In accordance with the foregoing, plaintiff's motion for contempt (Docket No. 290 ) is ALLOWED, in part, and DENIED, in part. Defendants are directed: 1) to achieve full compliance with the Remediation Plan on or before March 15, 2012. Such compliance shall include: a) the installation of enhanced scripts to enable voice guidance, tactilely discernable controls and appropriate signage on all Cardtronic−owned ATMs not located in 7−Eleven stores, and b) the inspection of all such ATMs to ensure that the newly installed features are in working condition; 2) to pay to plaintiffs reasonable attorneys fees and costs incurred in connection with the filing and prosecution of this motion for contempt, the amount of which shall be determined by the Court after the submission by plaintiffs of supporting pleadings to which defendants may respond. Defendants' cross−motion for enforcement of the settlement agreement (Docket No. 294 ) is DENIED. So ordered." (Moore, Kellyann) (Entered: 12/15/2011)
309 Assented to MOTION for Extension of Time to January 20, 2012 to File Fee Petition by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc..(Netski, Christine) (Entered: 12/23/2011)
Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 309 Motion for Extension of Time to File Fee Petition. (Patch, Christine) (Entered: 12/29/2011)
310 NOTICE by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc. OF PARTIES' AGREEMENT ON PAYMENT OF REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN PROSECUTING PLAINTIFFS' MOTION FOR CONTEMPT (JOINT) (Netski, Christine) (Entered: 12/29/2011)
311 Judge Nathaniel M. Gorton: ENDORSED ORDER entered re 310 Notice filed by National Federation of the Blind, Inc., Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts. "Treated as a motion to cancel briefing re reasonable attorneys fees and motion allowed." (Moore, Kellyann) (Entered: 12/30/2011)

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08/17/2012 08/17/2012 08/17/2012
08/17/2012 08/22/2012 08/24/2012 08/24/2012 08/31/2012 09/13/2012 09/14/2012
09/28/2012 09/28/2012 09/28/2012 10/02/2012 10/02/2012
10/02/2012

312 Second MOTION for Contempt by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Netski, Christine) (Entered: 08/17/2012)
313 MEMORANDUM in Support re 312 Second MOTION for Contempt filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Netski, Christine) (Entered: 08/17/2012)
314 SEALED EXHIBITS A−D re 312 Second MOTION for Contempt filed by National Federation of the Blind, Inc., Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc... (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D)(Moore, Kellyann) (Entered: 08/20/2012)
315 SEALED 313 MEMORANDUM in Support re 312 Second MOTION for Contempt filed by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. (Moore, Kellyann) (Entered: 08/20/2012)
316 Assented to MOTION for Extension of Time to September 14, 2012 to Respond to Plaintiffs' Second Motion for Contempt by Cardtronics, Inc., Cardtronics, LP.(Cooper, Jenny) (Entered: 08/22/2012)
317 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 316 Motion for Extension of Time (Patch, Christine) (Entered: 08/24/2012)
318 Assented to MOTION for Extension of Time to September 21, 2012 to File Response to Plaintiffs' Second Motion for Contempt by Cardtronics, Inc., Cardtronics, LP.(Cooper, Jenny) (Entered: 08/24/2012)
319 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 318 Motion for Extension of Time to File Response to Plaintiffs' Second Motion for Contempt. (Patch, Christine) (Entered: 08/31/2012)
320 Assented to MOTION for Extension of Time to September 28, 2012 to Respond to Plaintiffs' Second Motion for Contempt and for Leave to File a Memorandum in Excess of Twenty Pages by Cardtronics, Inc., Cardtronics, LP.(Cooper, Jenny) (Entered: 09/13/2012)
321 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting in part and denying in part 320 Motion for Extension of Time to Respond to Plaintiffs' Second Motion for Contempt and for Leave to File a Memorandum in Excess of Twenty Pages. "The request for an extension of time to respond to the Motion for Contempt is allowed; Motion for Leave to File a Memorandum in Excess of Twenty Pages is denied." (Patch, Christine) (Entered: 09/14/2012)
322 NOTICE by Cardtronics USA, Inc., Cardtronics, Inc. re 312 Second MOTION for Contempt Notice of Response to Plaintiffs' Motion (Lobel, Douglas) (Entered: 09/28/2012)
323 Assented to MOTION to Seal Response to Plaintiffs' Second Motion for Contempt by Cardtronics, Inc., Cardtronics, LP.(Lobel, Douglas) (Entered: 09/28/2012)
324 MEMORANDUM in Support re 323 Assented to MOTION to Seal Response to Plaintiffs' Second Motion for Contempt filed by Cardtronics, Inc., Cardtronics, LP. (Lobel, Douglas) (Entered: 09/28/2012)
325 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 323 Motion to Seal (Patch, Christine) (Entered: 10/02/2012)
326 SEALED RESPONSE to Motion re 312 Second MOTION for Contempt by Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts, National Federation of the Blind, Inc.. filed by Cardtronics, Inc., Cardtronics, LP. (Moore, Kellyann) (Additional attachment(s) added on 10/2/2012: # 1 Exhibits 1−11) (Moore, Kellyann). (Entered: 10/02/2012)
327 SEALED DECLARATION of Jeffery Keith re 326 SEALED RESPONSE to Motion re 312 Second MOTION for Contempt by Cardtronics, Inc., Cardtronics, LP. (Attachments: # 1 Exhibits A−G, # 2 Exhibits H− R)(Moore, Kellyann) (Entered:

Case: 1:03-cv-11206 As of: 10/27/2017 12:03 AM EDT 37 of 43

10/02/2012 10/02/2012 10/02/2012 10/02/2012
10/02/2012 12/10/2012 03/18/2013 03/19/2013 03/20/2013 03/20/2013 03/21/2013
04/09/2013
04/12/2013 04/12/2013 04/12/2013 04/12/2013 04/12/2013

10/02/2012)
328 SEALED DECLARATION of Thomas Gress re 326 SEALED RESPONSE to Motion re 312 Second MOTION for Contempt by Cardtronics, Inc., Cardtronics, LP. (Attachments: # 1 Exhibits A−H)(Moore, Kellyann) (Entered: 10/02/2012)
329 SEALED DECLARATION of Adam Roark re 326 SEALED RESPONSE to Motion re 312 Second MOTION for Contempt by Cardtronics, Inc., Cardtronics, LP. (Attachments: # 1 Exhibit A)(Moore, Kellyann) (Entered: 10/02/2012)
330 SEALED DECLARATION of KC Foreman−Bailey re 326 SEALED RESPONSE to Motion re 312 Second MOTION for Contempt by Cardtronics, Inc., Cardtronics, LP. (Attachments: # 1 Exhibit A)(Moore, Kellyann) (Entered: 10/02/2012)
331 SEALED DECLARATION of Gregory Rippey re 326 SEALED RESPONSE to Motion re 312 Second MOTION for Contempt by Cardtronics, Inc., Cardtronics, LP. (Attachments: # 1 Exhibits A, B (A not scanned, video))(Moore, Kellyann) (Entered: 10/02/2012)
332 SEALED DECLARATION of Steven A. Rathgaber re 326 SEALED RESPONSE to Motion re 312 Second MOTION for Contempt by Cardtronics, Inc., Cardtronics, LP. (Moore, Kellyann) (Entered: 10/02/2012)
333 NOTICE of Appearance by Genevieve C. Nadeau on behalf of Commonwealth of Massachusetts (Nadeau, Genevieve) (Entered: 12/10/2012)
334 ELECTRONIC NOTICE Setting Hearing on Motion 312 Second MOTION for Contempt : Motion Hearing set for 3/25/2013 03:30 PM in Courtroom 4 before Judge Nathaniel M. Gorton. (Patch, Christine) (Entered: 03/18/2013)
335 Joint MOTION to Continue Hearing Date on Plaintiffs' Second Motion for Contempt to April 17, 2013 by Cardtronics USA, Inc., Cardtronics, Inc., Cardtronics, LP.(Cooper, Jenny) (Entered: 03/19/2013)
336 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 335 Motion to Continue Hearing on Plaintiff's Second Motion for Contempt to 4/17/13. (Patch, Christine) (Entered: 03/20/2013)
337 ELECTRONIC NOTICE Resetting Hearing on Motion 312 Second MOTION for Contempt : Motion Hearing set for 4/17/2013 11:00 AM in Courtroom 4 before Judge Nathaniel M. Gorton. (Patch, Christine) (Entered: 03/20/2013)
338 Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "In accordance with the foregoing, plaintiffs' second motion for contempt (Docket No. 312 ) is ALLOWED, subject to further specificity to be determined after an upcoming hearing. So ordered."(Moore, Kellyann) (Entered: 03/21/2013)
339 ELECTRONIC NOTICE Resetting Hearing on Motion Motion Hearing re 312 Second Motion for Contempt set for 4/17/2013 11:30 AM in Courtroom 4 before Judge Nathaniel M. Gorton. NOTE − CHANGE IS AS TO TIME ONLY. (Patch, Christine) (Entered: 04/09/2013)
340 Assented to MOTION to Seal by Cardtronics, Inc., Cardtronics, LP.(Lobel, Douglas) (Entered: 04/12/2013)
341 MEMORANDUM in Support re 340 Assented to MOTION to Seal filed by Cardtronics, Inc., Cardtronics, LP. (Lobel, Douglas) (Entered: 04/12/2013)
342 NOTICE by Cardtronics, Inc. filing Status Report Under Seal (Lobel, Douglas) (Entered: 04/12/2013)
343 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 340 Assented to MOTION to Seal by Cardtronics, Inc., Cardtronics, LP. (Moore, Kellyann) (Entered: 04/12/2013)
344 SEALED STATUS REPORT by by Cardtronics, Inc., Cardtronics, LP. (Moore, Kellyann) (Entered: 04/12/2013)

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04/17/2013
04/30/2013
04/30/2013
05/01/2013 05/01/2013 05/06/2013 05/22/2013 07/19/2013 08/07/2013 08/16/2013 09/13/2013 09/13/2013 09/13/2013 09/17/2013 09/17/2013

345 ELECTRONIC Clerk's Notes for proceedings held before Judge Nathaniel M. Gorton: Motion Hearing held on 4/17/2013 re 312 Second MOTION for Contempt filed by National Federation of the Blind, Inc., Adrienne Asch, Jennifer Bose, Commonwealth of Massachusetts. Court hears arguments of counsel on the status of the case. Court is inclined to appoint Attorney David R. Cohen as special master. Parties to submit joint proposal for reference to Attorney Cohen, or separate proposals, not to exceed 5 pages each, indicating their proposal for the special master. Appointed special master will submit a Report and Recommendation to the Court on sanctions and remaining issues. Proposals due by 5/1/2013. (Court Reporter: Cheryl Dahlstrom at cheryldahlstrom@comcast.net.)(Attorneys present: Nadeau, Healey, Netski, Krevor−Weisbaum, Vogel, Lobel, Kociubes) (Patch, Christine) (Entered: 04/17/2013)
346 Transcript of Hearing on Motions held on April 17, 2013, before Judge Nathaniel M. Gorton. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Cheryl Dahlstrom at cheryldahlstrom@comcast.net Redaction Request due 5/21/2013. Redacted Transcript Deadline set for 5/31/2013. Release of Transcript Restriction set for 7/29/2013. (Scalfani, Deborah) (Entered: 04/30/2013)
347 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 04/30/2013)
348 BRIEF by Commonwealth of Massachusetts Plaintiffs' Proposal for Reference to Special Master. (Nadeau, Genevieve) (Entered: 05/01/2013)
349 BRIEF by Cardtronics USA, Inc., Cardtronics, Inc. − Cardtronics' Proposal for Reference to Special Master. (Attachments: # 1 Exhibit 1)(Lobel, Douglas) (Entered: 05/01/2013)
350 Letter/request (non−motion) from Commonwealth of Massachusetts Re: Special Master Proposals. (Nadeau, Genevieve) (Entered: 05/06/2013)
351 Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER (Attachments: # 1 Affidavit of David R. Cohen)(Moore, Kellyann) (Entered: 05/22/2013)
352 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master through June 30, 2013. In accordance with the Order of Appointment (Docket No. 351), that bill is approved."(Patch, Christine) (Entered: 07/19/2013)
353 NOTICE of Change of Address or Firm Name by Amy F. Robertson (Robertson, Amy) (Entered: 08/07/2013)
354 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the month of July, 2013. In accordance with the Order of Appointment (Docket No. 351), that bill is approved."(Patch, Christine) (Entered: 08/16/2013)
355 MOTION to Seal by Cardtronics, Inc., Cardtronics, LP.(Lobel, Douglas) (Entered: 09/13/2013)
356 MEMORANDUM in Support re 355 MOTION to Seal filed by Cardtronics, Inc., Cardtronics, LP. (Lobel, Douglas) (Entered: 09/13/2013)
357 NOTICE by Cardtronics, Inc. filing Joint Motion Under Seal (Lobel, Douglas) (Entered: 09/13/2013)
358 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 355 Motion to Seal (Patch, Christine) (Entered: 09/17/2013)
359 SEALED Joint Motion for Extension of Deadline for Submission of Report andRecommendation by Cardtronics USA, Inc., Cardtronics, Inc., Commonwealth of Massachusetts, National Federation of the Blind of Massachusetts, Inc., National Federation of the Blind, Inc..(Moore, Kellyann) (Entered: 09/17/2013)

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09/18/2013 09/26/2013 10/29/2013
12/10/2013
12/18/2013 12/23/2013
01/02/2014 01/15/2014
03/12/2014
03/12/2014 03/12/2014 04/14/2014 04/16/2014 04/16/2014

360 Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting 359 Motion for Extension of Time to File. "Motion allowed." Special Master's Report and Recommendation due on or before December 18, 2013. (Moore, Kellyann) (Entered: 09/20/2013)
361 SEALED First Quarterly Report of Special Master David R. Cohen. (Moore, Kellyann) (Entered: 09/26/2013)
362 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the months of August and September, 2013. In accordance with the Order of Appointment (Docket No. 351), that bill is approved." (Patch, Christine) (Entered: 10/29/2013)
363 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the months of October and November, 2013. In accordance with the Order of Appointment (Docket No. 351), that bill is approved(Patch, Christine) (Entered: 12/10/2013)
364 SEALED Report and Recommended Ruling Regarding Monetary Sanction by Special Master David R. Cohen. (Moore, Kellyann) (Additional attachment(s) added on 12/23/2013: # 1 Exhibit 1, # 2 Exhibit 2) (Moore, Kellyann). (Entered: 12/20/2013)
365 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 364 Sealed Report and Recommendation. The Report & Recommendation of Special Master Cohen (Docket No. 364) is, with respect to the recommendation to extend to March 21, 2014, the parties' deadline to file objections to the other provisions of the Report & Recommendation, ACCEPTED and ADOPTED. The Court will not address the remaining provisions of the Report & Recommendation until it receives the parties' objections, if any.(Patch, Christine) (Entered: 12/23/2013)
366 SEALED Second Quarterly Report by Special Master David R. Cohen. (Moore, Kellyann) (Entered: 01/06/2014)
367 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the month of December, 2013. In accordance with the Order of Appointment (Docket No. 351), that bill is approved." (Patch, Christine) (Entered: 01/15/2014)
368 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the months of January and February, 2014. In accordance with the Order of Appointment (Docket No. 351), that bill is approved." (Patch, Christine) (Entered: 03/12/2014)
369 Joint MOTION for Extension of Time to April 21, 2014 to File Objections to the Special Master's Report and Recommendation by Cardtronics USA, Inc., Cardtronics, Inc..(Lobel, Douglas) (Entered: 03/12/2014)
370 Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting 369 Joint MOTION for Extension of Time to April 21, 2014 to File Objections to the Special Master's Report and Recommendation by Cardtronics USA, Inc., Cardtronics, Inc. "Joint motion allowed." (Moore, Kellyann) (Entered: 03/13/2014)
371 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the month of March, 2014. In accordance with the Order of Appointment (Docket No. 351), that bill is approved." (Patch, Christine) (Entered: 04/14/2014)
372 NOTICE of Withdrawal of Appearance by Joseph L. Kociubes (Kociubes, Joseph) (Entered: 04/16/2014)
373 NOTICE of Withdrawal of Appearance by Jenny K. Cooper (Cooper, Jenny) (Entered: 04/16/2014)

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04/16/2014 04/16/2014 04/30/2014
04/30/2014 05/28/2014 05/29/2014 05/29/2014 06/18/2014 07/07/2014 07/15/2014 08/13/2014 09/19/2014 10/10/2014
11/07/2014 11/24/2014

374 NOTICE of Withdrawal of Appearance by Carol E. Head (Head, Carol) (Entered: 04/16/2014)
375 Joint MOTION for Extension of Time to May 21, 2014 to File Objections to the Special Master's Report and Recommendation by Cardtronics USA, Inc., Cardtronics, Inc..(Lobel, Douglas) (Entered: 04/16/2014)
376 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 375 Motion for Extension of Time to File Objections to the special master's Report and Recommendations to 5/21/14. Status Conference/Pretrial Conference set for 5/30/2014 03:30 PM in Courtroom 4 before Judge Nathaniel M. Gorton. The parties are directed to submit a joint status report not to exceed five pages on or before Friday, May 23, 2014, to provide the Court with an update on the progress of settlement negotiations. (Patch, Christine) Modified on 4/30/2014 to add Pretrial Conference (Patch, Christine). (Entered: 04/30/2014)
377 Set/Reset Deadlines: Status Report due by 5/23/2014 (Patch, Christine) (Entered: 04/30/2014)
378 Joint MOTION Relief from Requirements Set Forth in the Court's April 30, 2014 Orders by Cardtronics USA, Inc., Cardtronics, Inc..(Lobel, Douglas) (Entered: 05/28/2014)
379 Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting 378 Joint MOTION Relief from Requirements Set Forth in the Court's April 30, 2014 Orders by Cardtronics USA, Inc., Cardtronics, Inc. "Motion allowed." (Moore, Kellyann) (Entered: 05/29/2014)
380 ELECTRONIC NOTICE Canceling Hearing. The Status Conference set for 5/30/14 at 3:30 PM is CANCELED. (Moore, Kellyann) (Entered: 05/29/2014)
381 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the month of May, 2014. In accordance with the Order of Appointment (Docket No. 351), that bill is approved." (Patch, Christine) (Entered: 06/18/2014)
382 SEALED Third Quarterly Report by Special Master David R. Cohen. (Patch, Christine) (Entered: 07/07/2014)
383 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the month of June, 2014. In accordance with the Order of Appointment (Docket No. 351), that bill is approved." (Patch, Christine) (Entered: 07/15/2014)
384 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the month of July, 2014. In accordance with the Order of Appointment (Docket No. 351), that bill is approved." (Patch, Christine) (Entered: 08/13/2014)
385 SUGGESTION OF DEATH Upon the Record as to ADRIENNE ASCH by Adrienne Asch, Jennifer Bose, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit Certificate of Death)(Netski, Christine) (Entered: 09/19/2014)
386 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 351 Memorandum & ORDER. The Court has reviewed an itemized bill for services rendered by the Special Master for the months of August and September, 2014. In accordance with the Order of Appointment (Docket No. 351), that bill is approved.(Patch, Christine) (Entered: 10/10/2014)
387 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the month of October, 2014. In accordance with the Order of Appointment (Docket No. 351 ), that bill is approved."(Moore, Kellyann) (Entered: 11/07/2014)
388 Joint MOTION for Settlement Approval by Commonwealth of Massachusetts. (Attachments: # 1 Exhibit Exhibit A to Joint Motion for Preliminary Approval, # 2 Exhibit Exhibit B to Joint Motion for Preliminary Approval, # 3 Exhibit Exhibit C to Joint Motion for Preliminary Approval, # 4 Exhibit Exhibit D to Joint Motion for Preliminary Approval, # 5 Exhibit Exhibit E to Joint Motion for Preliminary Approval,

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# 6 Exhibit Exhibit F to Joint Motion for Preliminary Approval, # 7 Exhibit Exhibit G to Joint Motion for Preliminary Approval, # 8 Exhibit Exhibit H to Joint Motion for Preliminary Approval, # 9 Exhibit Exhibit I to Joint Motion for Preliminary Approval, # 10 Exhibit Exhibit J to Joint Motion for Preliminary Approval, # 11 Exhibit Exhibit K to Joint Motion for Preliminary Approval, # 12 Exhibit Exhibit L to Joint Motion for Preliminary Approval, # 13 Exhibit Exhibit M to Joint Motion for Preliminary Approval, # 14 Exhibit Exhibit N to Joint Motion for Preliminary Approval, # 15 Exhibit Exhibit O to Joint Motion for Preliminary Approval)(Nadeau, Genevieve) (Entered: 11/24/2014)
389 Joint MEMORANDUM in Support re 388 Joint MOTION for Settlement Approval filed by Commonwealth of Massachusetts. (Nadeau, Genevieve) (Entered: 11/24/2014)
390 ELECTRONIC NOTICE issued requesting courtesy copy for 389 Memorandum in Support of Motion, 388 Joint MOTION for Settlement Approval. Counsel who filed these documents are requested to submit a courtesy copy of them to the Clerk's Office. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Patch, Christine) (Entered: 11/25/2014)
391 Judge Nathaniel M. Gorton: ORDER entered granting 388 Motion for Preliminary Approval of Proposed Amended and Restated Class Action Settlement Agreement and for a Fairness Hearing. (Patch, Christine) Modified on 12/3/2014 to correct date of order (Patch, Christine). (Entered: 12/03/2014)
392 ELECTRONIC NOTICE of Hearing.Fairness Hearing set for 5/7/2015 02:00 PM in Courtroom 4 before Judge Nathaniel M. Gorton. (Patch, Christine) (Entered: 12/03/2014)
393 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. "The Court has reviewed an itemized bill for services rendered by the Special Master for the months of November and December, 2014 and January, 2015. In accordance with the Order of Appointment (Docket No. 351), that bill is approved."(Patch, Christine) (Entered: 02/06/2015)
394 MOTION for Attorney Fees and Costs (Plaintiffs' Unopposed Petition for an Award of Attorneys' Fees and Costs) by National Federation of the Blind, Inc.. (Attachments: # 1 Declaration of Sharon Krevor−Weisbaum, # 2 Declaration of Christine M. Netski, # 3 Declaration of Timothy P. Fox, # 4 Declaration of Genevieve C. Nadeau)(Netski, Christine) (Entered: 03/19/2015)
395 ELECTRONIC NOTICE issued requesting courtesy copy for 394 MOTION for Attorney Fees and Costs (Plaintiffs' Unopposed Petition for an Award of Attorneys' Fees and Costs). Counsel who filed this document are requested to submit a courtesy copy of it to the Clerk's Office. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Patch, Christine) (Entered: 03/24/2015)
396 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 351 Memorandum & ORDER. The Court has reviewed an itemized bill for services rendered by the Special Master for the months of February and March, 2015. In accordance with the Order of Appointment (Docket No. 351), that bill is approved. (Patch, Christine) (Entered: 04/10/2015)
397 Joint MOTION for Final Approval of Amended and Restated Class Action Settlement Agreement by Jennifer Bose, National Federation of the Blind, Inc.. (Attachments: # 1 Exhibit A (Proposed Order), # 2 Exhibit A1 (Amended and Restated Class Action Settlement Agreement), # 3 Exhibit B (Declaration of SKW))(Netski, Christine) (Entered: 04/24/2015)
398 MEMORANDUM in Support re 397 Joint MOTION for Final Approval of Amended and Restated Class Action Settlement Agreement filed by Jennifer Bose, National Federation of the Blind, Inc.. (Netski, Christine) (Entered: 04/24/2015)
399 ELECTRONIC NOTICE issued requesting courtesy copy for 397 Joint MOTION for Final Approval of Amended and Restated Class Action Settlement Agreement , 398 Memorandum in Support of Motion. Counsel who filed these documents are requested

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05/07/2015 05/07/2015 05/07/2015
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to submit a courtesy copy of them to the Clerk's Office. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Patch, Christine) (Entered: 04/27/2015)
400 Judge Nathaniel M. Gorton: ORDER entered granting 394 Motion for Attorney Fees and Costs (Danieli, Chris) (Entered: 05/07/2015)
401 Judge Nathaniel M. Gorton: ORDER entered granting 397 Joint MOTION for Final Approval of Amended and Restated Class Action Settlement Agreement (Danieli, Chris) (Entered: 05/07/2015)
402 ELECTRONIC Clerk's Notes for proceedings held before Judge Nathaniel M. Gorton: Fairness Hearing held on 5/7/2015. Court hears from Special Master David Cohen. Court hears from counsel as to the basics of the settlement agreement, the terms of which are put on the record. Court deems the settlement to be fair, reasonable, and adequate. Court executes order in open court. (Court Reporter: Debra Lajoie at ylajoied@yahoo.com.)(Attorneys present: Cohen, Netski, Nadeau, Weisbaum, Fox, Lobel, Keller) (Patch, Christine) (Entered: 05/08/2015)
403 Judge Nathaniel M. Gorton: ORDER entered GRANTING 397 Joint Motion for Final Approval of Amended and Restated Class Action Settlement Agreement and Plaintiffs' Unopposed Petition for an Award of Attorneys' Fees and Costs(Danieli, Chris) (Entered: 05/08/2015)
404 Transcript of Final Fairness Hearing held on May 7, 2015, before Judge Nathaniel M. Gorton. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Lajoie at ylajoied@yahoo.com Redaction Request due 6/4/2015. Redacted Transcript Deadline set for 6/15/2015. Release of Transcript Restriction set for 8/12/2015. (Scalfani, Deborah) (Entered: 05/14/2015)
405 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/14/2015)
406 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 351 Memorandum & ORDER. The Court has reviewed an itemized bill for services rendered by the Special Master for the month of April, 2015. In accordance with the Order of Appointment (Docket No. 351), that bill is approved. (Patch, Christine) (Entered: 05/14/2015)
407 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. The Court has reviewed an itemized bill for services rendered by the Special Master for the month of May, 2015. In accordance with the Order of Appointment (Docket No. 351), that bill is approved.(Patch, Christine) (Entered: 06/05/2015)
408 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 06/18/2015)
409 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 06/18/2015)
410 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 06/18/2015)
411 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered re 351 Memorandum & ORDER. The Court has reviewed an itemized bill for services rendered by the Special Master for the months of June and July, 2015. In accordance with the Order of Appointment (Docket No. 351), that bill is approved.(Lima, Christine) (Entered: 08/10/2015)
412 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 11/19/2015)
413 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 11/19/2015)

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414 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 11/19/2015)
415 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 11/19/2015)
416 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 01/28/2016)
417 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 10/25/2016)
418 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 10/25/2016)
419 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 11/18/2016)
420 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 03/20/2017)
421 REPORT of the Special Master by David R. Cohen Co. LPA. (Cohen, David) (Entered: 09/25/2017)
422 Joint MOTION for Order to Approve Amendment to Class Action Settlement Agreement by Cardtronics USA, Inc., Cardtronics, Inc.. (Attachments: # 1 Exhibit A − Amendment, # 2 Exhibit B − Declaration, # 3 Exhibit C − Proposed Order)(Lobel, Douglas) (Entered: 10/24/2017)
423 Joint MEMORANDUM in Support re 422 Joint MOTION for Order to Approve Amendment to Class Action Settlement Agreement filed by Cardtronics USA, Inc., Cardtronics, Inc.. (Lobel, Douglas) (Entered: 10/24/2017)

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

COMMONWEAl,TH OF MASSACHUSETTS, )

et at.,

)

) Plaintiffs, )

v.

)

)

E*TRADE ACCESS, INC., et al.,

)

) Defendants. )

)

CASI: No. 03 11206 MEL

DEFENDANT E*TRADE ACCESS, INC.'S RESPONSE TO PLAINTIFFS' SURREPLY ON JOINDER OF NECESSARY PARTIES
Apparently confused by an alleged "dizzying array" of ATM contracts, see

Plaintiffs' Surrcply, at 2, Plaintiffs lose sight of the enormous number of necessary and

indispensable parties in this lawsuit. The few contracts that Plaintiffs mention in their Surreply

do not disprove the existence of thousands of third-party ATM owners.

The vast majority of the contracts attached to Plaintiffs' Surreply, originally

entered into by a company called NACS, which Access later acquired, concern Access-owned

ATMs that are not at issue in this lawsuit. Similarly, the contracts involving the company Xtra

Cash, also later acquired by Access, expressly place the burden of compliance with the ADA on

the merchants, which make them indistinguishable from the contracts at issue in Frotton v.

Barkan, 219 F.R.D. 31 (D. Mass. 2003), and for that reason, the merchants are necessary parties.

In any event, even if merchants with Xtra Cash contracts were deemed not to be necessary

parties, thousands of merchants had contracts with Access itself and, as Access explained in its prior pleadings, these merchants are all indispensable parties. 1 I. THE NACS CONTRACTS ARE NOT AT ISSUE IN THIS LAWSUIT.
The NACS contracts that the Plaintiffs cite are irrelevant to this lawsuit because Access has already agreed to retrofit these machines. NACS was an independent ATM operator that entered into contracts with merchants to rent space in the merchants' stores for the ATMs. Access acquired NACS and thus now is the operator of these ATMs. As the Court is aware, in 2003, Plaintiffs and Access settled their dispute with respect to Access-owned ATMs and Access agreed to retrofit these ATMs as the Plaintiffs desired~ including the ATMs originally owned by NACS. The scope of the lawsuit, as the parties repeatedly have acknowledged, deals only with ATMs that Access does not itself own. Therefore, the contracts Plaintiffs cite involving NACS are irrelevant to the lawsuit because the A'TMs at issue in the contracts are outside of the scope ofthe lawsuit.
II. MERCHANTS THAT CONTRACTED WITH XTRA CASH ARE NECESSARY PARTIES. Plaintiffs also claim that contrac:ts originally made by Xtra Cash involve
merchants that are not necessary parties. Plaintiffs ignore the plain language of these contracts. These contracts, two of which are attached to Plaintiffs' Surreply, expressly state that the merchant ~ which, as even Plaintiffs concede, are owners of the A TMs - is the exclusive "operator" of the ATMs as well. See Plaintiffs' Surreply, Exhibits N & 0, at p. 4, ~ 7. Under the ADA, the merchants therefore are responsible for the retrofits that Plaintiffs demand. Even if
Since filing its Rule 19 motion, Access's assets were sold to Cardtronics, Inc. All references to "Access" in the original Motion and herein now refer to Cardtronics, but for the sake of consistency, the term "Access" will still be used.

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Plaintiffs want to argue otherwise, the existence of this language creates the very factual controversy at issue in Frotten that led this Court to conclude that merchants and the mall owner were all necessary parties to an ADA dispute.

III. THE VAST NUMBER OF MERCHANTS ARE NECESSARY PARTIES. But even if the merchants with Xtra Cash contracts were deemed necessary
parties, these contracts are only a minor subset of the ATMs at issue in this lawsuit, and no dispute exists that the other merchants with other contracts are necessary.
Extrapolating from data without a rational basis, Plaintiffs surmise that "only a small fraction of merchants" might be necessary parties. See Plaintiffs' Surreply, at 4-5. Of course, the evidence directly on point- from Access's former President~ is directly contrary. In support of its motion to join necessary parties, Access filed the affidavit of Dale Dentlinger, who explains that the Access network consists of approximately 13,388 ATMs. Those ATMs

can be divided into two categories, Access-owned ATMs and merchant-owned ATMs. Dentlinger further states that the merchant-owned ATMs joined the Access network through SLAs, which give merchants the right to use Access's data processing services. Of the 13,388 ATMs in the Access network, Dentlinger confinns that only 2,033 are Access-owned. This means that approximately 11,355 ATM machines are owned by third parties that must be joined in this case. In their Amended Complaint, Plaint1ffs themselves state that Access "holds legal title to only a few thousand of the more than 15,000 ATMs it operates within its network." See Amended Complaint, at 6, ~ 15.
Based on a superficial and incomplete review of the discovery, Plaintiffs now dispute the basic arrangement Dentlinger described. By their own admission, Plaintiffs' conclusion rests on a reading of only 6,000 of 86,000 pages, less than 10% of the documents

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produced. Although Plaintiffs are evidently satisfied with this cursory review, their work is incomplete. Moreover, within those 6,000 pages, which allegedly contain 803 ATM contracts, Plaintiffs misread the data. In disputing that the bulk of Access's ATMs are covered by SLAs, Plaintiffs claim to have uncovered only 59 SLA contracts. But this does not undercut Dentlinger's statement that the majority of Access's network-affiliated ATMs operate under an SLA A single SLA contract with a large vendor may cover numerous ATMs at multiple locations.
More: significant than these counting errors, Plaintiffs commit a fundamental mistake in misreading the procedural rules. Assuming that there are third-party ATM owners not subject to an SLA, Plaintiffs make the logical leap that no additional parties need be joined in this case. In the final pages oftheir motion, Plaintiffs make this extreme claim: "Contrary to Mr. Dendinger's sworn affidavit in support of the motion, [the SLAs] apply to only a small fraction of the merchants. On that basis alone, (Access's Rule 19 motion] should be denied." See Plaintiffs' Surreply, at 4-5.
But Rule 19 contains no such exception. If there is a necessary party, then joinder IS proper. It does not matter whether the party itself is significant to the wider case, or whether the class of necessary parties is large. See Fed. R. Civ. P. 19. Moreover, for purposes of Rule 19, whether there is an SLA governing the relationship between Access and a third party owning an ATM is irrelevant. So long as Plaintiffs seek to physically alter an ATM not owned or operated by Access, the owner and operator of the ATM must be joined. What matters is not the form of the contract between Access and the third party, but the fact that Plaintiffs seek to impact the third party's property rights.

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CONCLUSION For all of these reasons, Access respectfully requests that this Court grant its

motion to join necessary parties.

Respectfully submitted,

E*TRADE ACCESS, INc. and E*TRADE BANK,

By their attorneys,

Dated: September 1, 2004

150 Federal Street Boston, Massachusetts 02110 (617) 951-8000
Douglas P. Lobel David A. Vogel ARNOLD & PORTER LLP 1600 Tysons Boulevard Suite 900 McLean, Virginia 22102 (703) 720-7000

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CERTIFICATE OF SERVICE

I, Jellily Cooper, hereby certify that on September 1, 2004, I caused a copy of the foregoing document to be served, via electronic and first class mail, upon the following counsel of record:

Patricia Correa, Esquire Assistant Attorney General Director, Disability Rights Project Office of the Attorney General One Ashburton Place Boston, MA 021 08 gattv.corrca@ago.state. ma.us Attorney for Plaintiff Commonwealth of Massachusetts
Anthony M. Doniger, Esquire Christine M. Netski, Esquire Sugannan, Rogers, Barshak &
Cohen, P.C. 101 Merrimac Street Boston, MA 02114-4737 doniger@srbc.com
netski(it~srbc.com
Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver

Douglas P. Lobel, Esquire David Vogel, Esquire Arnold & Porter 1600 Tysons Boulevard Suite 1200 McLean, VA 221 02 Douglas Lobel@agorter.com David Vogel@agorter.com Attorneys for Defendants, E*Trade Access, Inc. and E*Trade Bank

Daniel F. Goldstein, Esquire Sharon Krevor-Weisbaurn, Esquire Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com skw@)browngold.com Attorneys for Plaintiffs, National Federation of the Blind, Inc., National Federation of Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi and Philip Oliver