Welchly et al v. First Bank

Filing 62

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Kevin H. Sharp on 6/12/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SUSAN WELCHLY and ASHLEY
SUMMERS, individually, and on
behalf of all others similarly situated,
Plaintiffs,
v.
FIRST BANK,
Defendant.

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No. 3:13-00440
Judge Sharp

MEMORANDUM
This is a putative class action under the Americans With Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., which seeks injunctive relief to ensure that blind or visually impaired
individuals are guaranteed independent access to automatic teller machines (ATMs) operated by
Defendant FirstBank. Specifically, Plaintiffs Susan Welchly and Ashley Summers, both of whom
are legally blind, allege that some of FirstBank’s ATMs do not comply with the ADA and its
implementing regulations (known as the 2010 Standards for Accessible Design (the “2010
Standards”)) because some machines lack operational voice-guidance features, Braille placards,
and/or correct tactilely discernable function controls.
FirstBank has filed a Motion to Dismiss (Docket No. 15) and a Motion for Summary
Judgment (Docket No. 38), and those motions have been fully briefed by the parties. Common to
both Motions is Defendant’s contention that this Court lacks subject matter jurisdiction because
there exists no case or controversy as required by Article III. Having fully reviewed the record and
the arguments of the parties, Defendant’s Motions will be granted for the reasons that follow.

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I. FACTUAL BACKGROUND
FirstBank provides a wide range of financial services through its 45 branch offices located
across Tennessee. Included among those services is the availability of some 55 ATMs, two of which
are alleged to have been visited by Plaintiffs.
According to the Complaint, Ms. Welchly visited FirstBank’s ATM located at 2202
Fairview Boulevard in Fairview on March 15, 2012, and found that it had no voice-guidance feature
as required by the 2010 Standards. Ms. Summers claims that at some point after March 15, 2012,
she visited FirstBank’s ATM located at 885 Conference Drive in Goodlettsville, and found that it,
too, did not have an operational voice-guidance system and also had no tactilely discernible
function controls as also required by the 2010 Standards. The Complaint also conclusorily asserts
that “[b]ased upon an investigation performed on Plaintiffs’ behalf, Plaintiffs have actual notice that
additional ATMs in Defendant’s ATM network are similarly in violation of . . . the 2010 Standards,”
and that some of Defendant’s ATMs “suffer from myriad additional violations” of those standards.
(Docket No. 1 Complaint ¶¶ 40 & 51).
After FirstBank moved to dismiss for lack of subject-matter jurisdiction because it allegedly
remedied any ADA violations at the two ATMs Plaintiffs tried to utilize, Plaintiffs turned to Trevor
Heck who claims to have visited numerous ATMs operated by First Bank “[i]n connection with an
investigation in support of Plaintiffs’ claims in this case.” (Docket No. 45-1 at1). In his declaration
(which is the subject of three separate Motions to Strike discussed below), Mr. Heck asserts that
he and Ms. Welchly visited FirstBank’s Fairview ATM on January 26, 2013, and found that the
audio guidance feature failed consistently. More than a year later, on January 31, 2014, Mr. Heck
claims he visited FirstBank’s ATM located at 2808 Smith Springs Road in Nashville and found that

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the audio guidance feature was not functioning for this machine, even though he removed and
inserted his headphones three separate times to determine if the audio was intermittent. That same
day he visited FirstBank’s ATM at 3310 Aspen Grove Drive in Franklin and found that there were
no Braille instructions for initiating the speech mode. Finally, Mr. Heck asserts that, also on January
31, 2014, he found that FirstBank’s ATMs located at 11 Channing Way and at 1581 S. Highland
Avenue in Jackson, and its ATM at 885 Conference Drive in Goodlettsville, did not have correct
tactile function buttons.
In support of its Motion for Summary Judgment, FirstBank has set forth numerous facts
which, for the most part, Plaintiffs do not dispute or claim that they are without sufficient knowledge
to form a belief as to the accuracy of the fact asserted. Those facts show the following.
In July 2011, First Bank determined that many of its ATMs did not comply with the 2010
Standards that were set to become effective on March 15, 2012. Accordingly, First Bank along with
its ATM vendors, including Diebold, NCR, and Bancsource, Inc., developed a plan to ensure that
all of FirstBank’s ATMs would comply with the 2010 Standards. Among other things, the plan
called for FirstBank to either have the vendors upgrade machines, or to trade in non-upgradeable
machines, and to add Braille instructions to other ATMs. Since the 2010 Standards were published
in the Federal Register on September 15, 2010, FirstBank has only purchased and installed ATMs
which adhere to those standards; that is, ATMs that are voice-guidance enabled and have audio jacks
and Braille instructions.
FirstBank upgraded the Conference Drive Diebold ATM – the one Ms. Summers claims to
have used – on March 13, 2012. A day later, First Bank upgraded the Fairview Boulevard Diebold
ATM that Ms. Welchly claims to have used. Those upgrades were consistent with FirstBank’s plan,

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a plan that was formulated prior to either Plaintiff’s use of the ATM.
FirstBank completed its ADA compliance plan on September 6, 2012, spending $663,000
in the process. It claims that the upgraded ATMs as well as the new ATMs manufactured by NCR,
Diebold and Triton installed at some locations are all compliant with the 2010 Standards.
Specifically, FirstBank maintains that the ATMs are (i) voice-guidance enabled as required by
Section 707.5; (ii) have tactilely discernible function controls as defined by 707.6; (iii) have function
keys with specific tactile symbols as required by Section 707.6.3.2; and (iv) have Braille instructions
for initiating the voice-guidance mode at the ATMs as required by Section 707.8.
FirstBank concedes that ATMs, like all electronic and mechanical devices, require continual
checks and maintenance to prevent and to remedy any breakdowns. Towards that end, Scott R.
Smith, FirstBank’s Vice President Electronic Banking, and Chastity Burns, First Bank’s ATM and
Point of Sale Administrator, oversee compliance of the bank’s ATMs with the ADA and the 2010
Standards.
FirstBank has also developed a written policy that requires personnel at each of its branches
to inspect its ATMs monthly to verify that the ATMs Braille instructions are in place, and check that
the voice-guidance mode is working. Employees complete a checklist, verifying compliance, or
noting any discrepancy, and scan it to Ms. Burns, who, in turn, reports any ADA compliance issues
to Mr. Smith. According to FirstBank, the two then ensure that any issues – such as missing Braille
instructions, malfunctioning voice-guidance software or vandalized audio jacks – are fixed or
replaced.
On January 31, 2014, the same day that Mr. Heck tried to use it, FirstBank learned that the
voice-guidance feature on its Smith Springs Road ATM was not functioning properly. Within one

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hour of the discovery, FirstBank made a service call to have the malfunction repaired and the repair
was made on February 3, 2014, one business day later. Also in January 2014, FirstBank learned that
the Braille notice was missing from its Cool Springs ATM, and overnighted a sticker to the branch,
which then placed it on the machine.
In their Complaint, “Plaintiffs invoke their statutory right to declaratory and injunctive relief,
as well as costs and attorneys’ fees.” (Docket No. 1, Complaint ¶ 68). They seek:
a. Declaratory Judgment that at the commencement of this action Defendant was in
violation of the specific requirements of Title III of the ADA described above
(specifically including Section 707 of the 2010 Standards); [and]
b. A permanent injunction which directs Defendant to take all steps necessary to
bring its ATMs into full compliance with the requirements set forth in the ADA, and
its implementing regulations, and which further directs that the Court shall retain
jurisdiction for a period to be determined after Defendant certifies that all of its
ATMs are fully in compliance with the relevant requirements of the ADA to ensure
that Defendant has adopted and is following an institutional policy that will in fact
cause Defendant to remain in compliance with the law.
(Id. Prayer for Relief ¶¶ a & b).
II. MOTIONS TO STRIKE
As indicated, FirstBank has filed three Motions to Strike Mr. Hecks declaration. In the first,
it moves to strike the declaration pursuant to Fed. R. Civ. P. 37 because it was not served with a
request under Fed. R. Civ. P. 26(b) to permit entry on its land as required by Fed. R. Civ. P. 34(a)(2).
In response, Plaintiffs argue that such a request was unnecessary inasmuch as the ATMs that Mr.
Heck visited were in public places and accessible to all. FirstBank next moves to strike the
declaration for the alleged violation of Fed. R. Evid. 702; Fed. R. Civ. P. Civ. P. 26(a)(2)(B) and
56(c)(4); and L.R. 39.01(c)(6)(d) because Mr. Heck was not designated an expert witness and no
expert report from him has been tendered. In response, Plaintiffs assert that they offer Mr. Heck not

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as an expert but as a lay witness who is entitled to opine about his observations when he tried to use
various ATMs. Finally, FirstBank moves to strike the declaration because Mr. Heck’s proffered
testimony is, for the most part, irrelevant within the meaning of Fed. R. Evidence 402 because he
describes the alleged inoperability of ATMs which Plaintiffs have never claimed to have attempted
to use and, while this is putatively a class action, Plaintiffs have never moved to certify a class.
Although First Bank raises some interesting arguments, not the least of which is that Mr.
Heck purports to be a lay witnesses but claims to have “inspected th[e] ATMs to determine their
compliance with Chapter 7 or the 2010 ADA Standards for Accessible Design” – going so far as to
identify the specific sections found in the Standards and what he was looking for in relation thereto
– the Court finds it unnecessary to strike his declaration. This is because, even with Mr. Heck’s lay
testimony, Plaintiffs have failed to carry their burden of establishing that this Court has jurisdiction.
III. MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT
A. Standards of Review
1. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may raise as a
defense the lack of subject matter jurisdiction. Such a defense “can challenge the sufficiency of the
pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack).”
Cartwright v. Garner, 2014 WL 1978242, at *6 (6th Cir. May 16, 2014) (citing United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). Where, as here, the defendant raises a factual attack that
“challenges the factual existence of subject matter jurisdiction . . . a court has broad discretion with
respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including
evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect

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of that evidence on the court’s authority to hear the case.” Id.
“The objection that a federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc.
12(b)(1), may be raised by a party, or by a court on its own initiative, at any stage in the litigation,
even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006)
“When the defendant challenges the existence of subject-matter jurisdiction, the plaintiff bears the
burden of establishing that jurisdiction exists.” Lewis v. Whirlpool Corp., 630 F.3d 484, 487 (6th
Cir. 2011).
2. Motion for Summary Judgment
A party may obtain summary judgment if the evidence establishes there are no genuine issues
of material fact for trial and the moving party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c); Covington v. Knox County School Sys., 205 F.3d 912, 914 (6th Cir. 2000). A genuine
issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In ruling on a motion for summary
judgment, the Court must construe the evidence in the light most favorable to the nonmoving party,
drawing all justifiable inferences in his or her favor. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).

B. Discussion
FirstBank moves to dismiss or for summary judgment arguing that this Court lacks subject
matter jurisdiction because in March 2012 it retrofitted the two ATMs that Plaintiffs allegedly tried
to use to make them adhere to the 2010 Standards. Moreover, although Plaintiffs have not moved
for class certification, to the extent they complain about FirstBank ATMs they have never used,
Defendant contends that the undisputed evidence shows that FirstBank has completed its efforts,
begun in July 2011 before the 2010 Standards went into to effect, to make all of its ATMs compliant
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with the 2010 Standards. Thus, there is nothing for the Court to declare or enjoin and no live case
or controversy so as to support Article III jurisdiction. Regardless of the standard employed, the
Court agrees that this case is now moot.
The Court’s power to adjudicate is limited to “cases and controversies” under Article III. U.S.
Const., art. III, § 2, cl. 1. “[S]tanding is an essential and unchanging part of the case-or-controversy
requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The Supreme
Court has defined standing generally as “the question of . . . whether the litigant is entitled to have
the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498
(1975). Thus, “[t]o satisfy Article Ill’s standing requirements, a plaintiff must show: (1) [she] has
suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 523–24 (6th Cir.2001). Each
element is “an indispensable part of the plaintiff's case” and “must be supported in the same way as
any other matter on which the plaintiff bears the burden of proof.” Lujan, 504 U.S. at 560.
Standing to sue is determined “as of the time the complaint is filed.” Cleveland Branch, 263
F.3d at 524. However, even if a plaintiff has standing to bring a suit, the suit may be dismissed at
any time for “mootness.” This concept has been describe by the Supreme Court as “‘the doctrine of

standing set in a time frame: The requisite personal interest that must exist at the commencement
of the litigation (standing) must continue throughout its existence (mootness).’” Arizonans for
Official English v. Arizona, 520 U.S. 43, 67, n.22 (1997) (quoting United States Parole Comm’n v.
Geraghty, 445 U.S. 388, 397 (1980)).

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“Mootness occurs ‘when the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.’” Midwest Media Property, L.L.C. v. Symmes Tp., Ohio, 503
F.3d 456, 460 (6th Cir. 2007) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). Therefore,

“‘[e]ven when an action presents a live case or controversy at the time of filing, subsequent
developments . . . may moot the case.’” Id. at 461 (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)).
“‘The mootness inquiry must be made at every stage of a case,’” and “[i]n analyzing issues of
mootness it is helpful to keep in mind that ‘[t]hese problems often require a highly individualistic,
and usually intuitive, appraisal of the facts of each case.’” Gottfried v. Medical Planning Services,
Inc., 280 F.3d 684, 691 (6th Cir. 2002) (quoting McPherson v. Michigan High Sch. Athletic Ass’n,
119 F.3d 453, 458 (6th Cir. 1997)).
FirstBank argues this case is moot because it undertook efforts, at considerable expense, to
ensure that each of its ATMs comply with the ADA and the 2010 Standards. It also claims to be
committed to ensuring that the ATMs remain compliant and has formulated a plan and designated
individuals to ensure that any problems limiting access to the visually impaired are promptly
addressed and corrected.
As a general rule, “voluntary cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice. If it did, the courts would be compelled
to leave the defendant free to return to his old ways.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. Inc., 528 U.S. 167, 189 (2000)). “ Rather, voluntary conduct moots a case only in the rare
instance where ‘subsequent events made it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.’” League of Women Voters of Ohio v. Brunner, 548 F.3d
463, 473 (6th Cir. 2008) (quoting Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003). “What

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is more, the party asserting mootness bears the ‘heavy burden of persuading’ the court that the
challenged conduct cannot reasonably be expected to start up again.” Id.
Notwithstanding the heavy burden placed on a defendant, courts have dismissed ATM
accessibility cases on mootness grounds where the defendant has established that it corrected
perceived problems and implemented plans to insure future compliance with the ADA and the 2010
Standards. For example, in Scott v. Cash to Go, Inc., 2013 WL 1786640 (M.D. Fla. April 26, 2013),
plaintiff, a blind individual, brought a class action complaint for declaratory and injunctive relief,
asserting that defendant’s ATM did not meet the 2010 Standards. After replacing the subject ATM
with an ADA compliant one, defendant moved to dismiss arguing that the court lacked subject
matter jurisdiction because there no longer was a case or controversy.
“[C]onvinced that the challenged conduct cannot reasonably be expected to recur,” id. at *2,
the Scott court agreed that dismissal was appropriate. In so ruling, the court, among other things,
noted:
First, the Court finds that the non-compliance of the subject ATM was an isolated
incident. The subject ATM was replaced with an ADA-compliant one and all of
Defendant’s ATMs have been updated or replaced to comply with ADA
requirements. . . . Because Defendant updated every one of its ATMs, the challenged
conduct does not constitute a “continuing practice.” . . . Nor is Defendant likely to
spend money to replace its current, compliant ATMs with non-compliant ones after
completing the time-consuming and expensive project of updating them all.
Second, the Court finds that Defendant’s cessation was motivated by a genuine
commitment to compliance rather than a desire to avoid liability. Plaintiff
encountered the subject ATM and brought suit in January 2013. . . . At that time,
Defendant had already begun a program of ensuring that its ATMs were
ADA-compliant. Specifically, in 2012, Defendant hired an outside contractor “for
the purpose of inspecting the roughly 300 ATMs owned by [Defendant], [and]
confirming that they complied with ADA standards[.]” Defendant was thus already
working towards updating its ATMs before the instant action was initiated. Even if
the subject ATM was not replaced until after Plaintiff brought suit, the Court is
satisfied that because Defendant had already begun making changes to its ATMs at
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the macro-level of its business, its voluntary cessation was not solely motivated by
a desire to avoid liability but was in line with a pre-existing genuine intention.
Id. (footnote and internal citations omitted).
More recently, in Welchly v. Cadence Bank, Inc., 2014 WL 271629 (M.D. Tenn. Jan. 23,
2014) – another of the handful of ATM cases brought by Ms. Welchly in this District – Judge
Trauger dismissed Plaintiff’s Class Action Complaint on mootness grounds. There, Ms. Welchely
alleged that an ATM she attempted to utilize at the Franklin branch of Cadence Bank violated the
ADA because it did not have (1) a voice guidance feature, (2) Braille instructions for initiating
speech mode, and (3) proper tactile symbols.
Acknowledging that “[t]he party asserting mootness bears a ‘heavy burden of persuading
the court that the challenged conduct can not reasonably be expected to stand up again,’” Judge
Trauger also observed that “[c]ourts have dismissed cases as moot at any stage in the litigation in
which the defendant has demonstrated that the ADA violations have been fully remedied.” Id. at
*2 (quoting Youngstown Publ’g Co. v. McKelvey, 189 F. App’x 402, 505 (6th Cir. 2006)).
Dismissal of the case before her, Judge Trauger reasoned, was appropriate in light of a declaration
from Cadence’s Senior Vice President of EFT and ATM operations, the accuracy of which Plaintiff
did not challenge:
The Limbaugh Declaration states that Cadence has successfully remedied all of the
ADA violations alleged by Welchly in her Complaint at the Franklin ATM.
Moreover, Limbaugh submits that all of Cadence's 98 ATMs in operation have been
updated or replaced to comply with the 2010 Standards. Limbaugh further states that
Cadence has implemented a stringent policy of compliance with the ADA, including
monthly tests of each ATM by branch employees and mandatory reporting of test
results to Limbaugh's office. Finally, Limbaugh explains that Cadence's efforts at
compliance began in July 2011, when it requested that its vendors perform an audit
of Cadence's operating ATMs to check for compliance. According to Limbaugh,
Cadence's compliance plan was complete as of September 2013. Limbaugh notes
that, due to high demand for newly manufactured ADA-compliant ATMs and the
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limited number of vendors specializing in the installation of ATMs, the process of
updating and replacing non-compliant ATMs owned by Cadence (and by other ATM
operators) was delayed.
Id. at *2. Given “Cadence’s clear evidence of compliance,” Judge Trauger rejected Plaintiff’s
request that the court “‘retain jurisdiction for a period of time to be determined to ensure that the
Defendant has adopted and is following an institutional policy that will, in fact, cause Defendant to
remain in compliance with the law,’” finding “that such continued oversight is unnecessary.” Id.
(citation omitted).
Just as in Scott and Welchly, the Court finds that there no longer exists a live case or
controversy, and that this case should therefore be dismissed on mootness grounds. Plaintiffs either
do not dispute, or have provided no evidence to dispute, that FirstBank (1) implemented its ADA
compliance policy prior to the effective date of the 2010 Standards; (2) upgraded its older ATMs
(including the two attempted to be used by Plaintiffs) prior to the effective date of the 2010
Standards; (3) has only purchased ATMs that comply with the 2010 Standards since those standards
were first published; (4) spent $663,000 dollars to ensure that its ATMs were all ADA compliant;
(5) has a written policy that requires monthly checks and the completion of a checklist for each
ATM regarding ADA compliance; (6) delegated responsibility to specific corporate officers to
ensure compliance with the ADA and the correction of problems with its ATMs; and (7) has
detected and resolved problems that were discovered as a result of its compliance plan. Given the
time, money, and effort FirstBank has devoted to complying with the requirements of the ADA and
the 2010 Standards, it is highly unlikely that it will not continue to ensure its ATMs remain in
compliance.
Plaintiffs argue that FirstBank’s professed intention to comply with the ADA should not be

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taken at face value in light of Mr. Heck’s investigation. The Court is of the opinion, however, that
the results of the investigation actually shows that FirstBank’s policy works, and that it is committed
to making FirstBank ATMs accessible to the blind.
Mr. Heck claims that the audio guidance feature at the Smith Springs Road ATM was not
functioning on January 31, 2014. However, it is undisputed that, without notice of Mr. Heck’s visit
or declaration, FirstBank discovered the same malfunction on the same day, and repaired it the next
business day. Mr. Heck also claims there were no Braille instructions for initiating the speech mode
at the Aspen Grove ATM on January 31, 2013. Again, however, without knowledge of Mr. Heck’s
inspection, FirstBank, through it Branch Manager Terry Smith, discovered that the Braille placard
was missing who reported the matter to Ms. Burns, and who affixed the sticker after it was
overnighted to the branch by Ms. Burns. These incidents suggest that FirstBank was cognizant that
problems could occur and sought to remedy those problems promptly.
The regulations recognize that breakdowns and malfunctions may occur. See 28 C.F.R. §
36.211(b) (the public accommodation provisions of the ADA “do[] not prohibit isolated or
temporary interruptions in service or access due to maintenance or repairs”). And courts recognize
that companies must be given a reasonable opportunity to address such intermittent problems . See
Foley v. City of Lafayette, 359 F.3d 925, 930 (7th Cir. 2004) (noting that under ADA regulations
governing transportation services “occasional . . . malfunctions, unaccompanied by systemic
problems of poor maintenance policy or frequent denials of access, do not constitute violations”);
Thill v. Olmstead Cnty., 2010 WL 3385234, at *6 (D. Minn. Aug. 24, 2010) (quoting the
Department of Justice ADA Technical Assistance Manual for the proposition that “[t]he ADA does
not require covered entities to do the impossible. In particular, it does not punish covered entities

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for occasional and inevitable breakdowns in handicapped-accessible features. . .”).
That leaves the three ATMs with alleged problems relating to the input keys. According to
Mr. Heck’s declaration, those ATMs did “not have the correct tactile symbols.” (Docket No. 45-1,
Heck Decl. ¶¶ 7-9). What constitutes the “correct tactile symbols” is not explained in the
declaration, although Mr. Hecks does reference Section 706.6 of the 2010 Standards. How Mr.
Heck, as a layperson, would know of these standards and their requirements is also not explained
in the declaration. In his deposition, Mr. Heck testified that he had not even read the 2010
Standards, or the applicable Code of Federal Regulations regarding public accommodations for the
disabled, but maintained that the ADA requires that the Clear key have a “sideways V” tactile
symbol. (Docket No. 36-1, Heck Depo. at 27-28).
FirstBank acknowledges that Section 707.6.3.2 of the 2010 Standards (Input / Function Keys
/ Tactile Symbols) requires that an ATM’s Clear key have the tactile symbol of a raised left arrow,
that is, a “<” tactile symbol. It points out, however, that the 2010 Standards contain a safe harbor
provision that provides:
Elements that have not been altered in existing facilities on or after March 15, 2012
and that comply with the corresponding technical and scoping specifications for
those elements in the 1991 Standards are not required to be modified in order to
comply with the requirements set forth in the 2010 Standards.
28 C.F.R. § 36.304(d)(2). FirstBank’s position is that the safe harbor provision grandfathered older
keypads with different tactile symbols (namely, raised vertical bars “|” instead of a raised “<”)
because the keypads are structural in nature and complied with the 1991 Standards, a position which
was endorsed by John Wodatch, the Chief of the Disability Rights Section of the Department of
Justice during a public hearing on proposed rulemaking on December 16, 2010. (Docket No. 58 at
6 n.7) (citing Transcript of Public Hearing on Advance Notices of Proposed Rulemaking, available
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at http://www.ada.gov/anprm2010/DC_hearing_transcript.htm). Plaintiffs have not challenged
FirstBank’ understanding of the safe harbor’s provision. Moreover, FirstBank claims to have since
“replaced its older, grandfathered ATM keypads so that they all have the requisite tactile symbol for
the Clear key,” (id.), a point which Plaintiffs also do not challenge.
Plaintiffs bring their Complaint for injunctive relief under Title III of the ADA which
provides that “[n]o individual shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods and services, facilities, privileges, advantages, or accommodations of
any place of public accommodation,” 42 U.S.C. § 12182(a), and defines discrimination to include
“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 ,” id. § 12182(b)(2)(A)(iii). To obtain injunctive relief,
Plaintiffs must be “likely to suffer future injury,” City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983); “[p]ast exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief[,]” O’Shea v. Littleton, 414 U.S. 488, 495 (1974). Because the record
demonstrates that FirstBank made a good-faith effort to comply with the ADA and the 2010
Standards, is now in compliance, and has taken concrete steps to ensure future compliance, the Court
finds there is no longer a live case or controversy and this case is moot.
In so ruling, the Court has considered Plaintiff’s Notice of Supplemental Authority (Docket
No. 48), which cites the recent decision in Sawczyn v. BMO Harris Bank Nat’l Assoc., 2014 WL
1089790 (D. Minn. March 19, 2014). That case, however, is inapposite. While the court found that
the case was not moot, it did so because the bank had not established that its ATMs were ADA
compliant, the record suggested that alleged violations may have gone unnoticed and unrepaired for

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18 months, and the bank did not establish the existence of a written corporate policy or show how
often it tested its ATMs for ADA compliance. The deficiencies in the record identified in Sawczyn
(which was decided on a Motion to Dismiss before discovery was taken) are simply not present here.
IV. CONCLUSION
On the basis of the foregoing, the Court will grant FirstBank’s Motions to Dismiss and for
Summary Judgment and dismiss this case.
An appropriate Order will be entered.

____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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