Commonwealth of Massachusetts et al v. E*Trade Access, Inc., et al

Filing 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)

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
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BANK, CARDTRONICS, INC.,
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CARDTRONICS USA, INC. and
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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.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated March 21, 2013
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