[Greater-baltimore] Cardtronics Settlement

David Andrews dandrews at visi.com
Mon May 31 17:42:14 CDT 2010


I have been asked to circulate the materials below.

David Andrews



The Proposed Remediation Plan provides as follows:
(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 that 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 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 
Voice-guided 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 Order[1] 
and as supplemented in paragraph 6 of this Order.
(6)        With the exception of 
Cardtronics-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 
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, 2011.
(7)        With the exception of 
Cardtronics-owned ATMs located in 7-Eleven 
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 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 February 1, 2011, 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 Cardtronics-owned, 
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 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 1,000 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 Cardtronics-owned, 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 Final Order,[3] 
Cardtronics will report monthly between June 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 
installed on the ATM, as well as the month and 
year of such installation.  No later than October 
31, 2010, 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 ATM 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)      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. 1, 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 of 2011.  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 the 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 attorneys’ fees and testing costs 
that the NFB incurred due to the failure of 
Cardtronics 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 of the Proposed 
Remediation Plan and the second 60 days thereafter.
(14)           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. 1, paragraphs 
6, 7 and 13 of Final Order Ex. 1 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. 1, this 
Order controls.  All other terms and requirements 
of the Final Order, including Final Order Ex. 1, 
will remain in full force and effect.



[1]  Final Order Ex. 1 at 4.
[2]  See Final Order Ex. 1 at ¶ 4.2.
[3]  See id. at ¶ 4.4.1.




UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, et al.,
                                                 Plaintiffs,
v.
CARDTRONICS, INC., et al.,
                                                 Defendants.

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Civil Action No. 03-11206-MEL



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NOTICE OF PROPOSED REMEDIATION PLAN CONCERNING
FINAL ORDER RELATING TO CLASS ACTION SETTLEMENT
AGREEMENT AND HEARING TO BE HELD ON September 15, 2010 @ 2:30pm
TO ALL MEMBERS OF THE NATIONWIDE CLASS CERTIFIED 
BY THIS COURT TO INCLUDE BLIND PATRONS OF 
AUTOMATED TELLER MACHINES (“ATMs”) OWNED OR 
OPERATED BY EITHER CARDTRONICS, INC. OR 
CARDTRONICS USA, INC. (collectively, “Cardtronics”)

On December 4, 2007, this Court granted final 
approval of a class action settlement agreement 
entered into between Plaintiffs, the Commonwealth 
of Massachusetts, the National Federation of the 
Blind (“NFB”), and several individual blind 
persons, and Defendants, Cardtronics, Inc. and 
Cardtronics, LP (now Cardtronics USA, Inc.) 
(collectively “Cardtronics”) concerning, among 
other things, the accessibility of ATMs owned or 
operated by Cardtronics to blind patrons under 
the Americans with Disabilities Act (“ADA”) and Massachusetts state laws.

DUE TO CARDTRONICS’ INABILITY TO MEET A NUMBER OF 
IMPORTANT REQUIREMENTS OF THIS COURT’S FINAL 
ORDER OF DECEMBER 4, 2007, THE PARTIES HAVE 
REACHED AGREEMENT ON A PROPOSED REMEDIATION PLAN, 
SUBJECT TO APPROVAL BY THIS COURT, THAT REQUIRES 
CARDTRONICS TO MEET ALL OF THEIR PRIOR 
OBLIGATIONS WITH EXTENSIONS OF TIME TO DO SO, 
PLUS ADDITIONAL OBLIGATIONS INTENDED TO ENSURE 
THAT THE MEMBERS OF THE CLASS ENJOY THE BENEFITS 
SET FORTH IN THE ORIGINAL SETTLEMENT AGREEMENT AND FINAL COURT ORDER.
Cardtronics has agreed to a remediation plan that 
includes, among other actions, ensuring that with 
the exception of Cardtronics-owned ATMs located 
in 7-Eleven stores, all ATMs owned by Cardtronics 
will offer voice guidance through a standard 
headphone jack located on the face of the ATM by 
no later than December 31, 2010; 
Cardtronics-owned ATMs located in 7-Eleven stores 
will offer voice guidance through a standard 
headphone jack located on the face of the ATM by 
no later than March 31, 2011, and that by March 
31, 2011, 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.  Cardtronics has agreed to develop 
improved voice-guided scripts for all 
Cardtronics-owned ATMs to ensure that blind 
customers can easily access all ATM 
functions.  Cardtronics has also agreed to 
institute an inspection program intended to 
ensure that voice-guided ATMs remain operational 
for blind customers.  A full copy of the proposed 
remediation plan is available on the NFB’s 
website: <http://www.nfb.org/>www.nfb.org and on 
the Cardtronics’ website: 
<http://www.cardtronics.net/news/nfb_remediationplan.asp.>www.cardtronics.net/news/nfb_remediationplan.asp. 
The locations of the existing ATMs covered by the 
Final Order and by the proposed remediation plan, 
with designation of voice-guidance status, can be 
obtained through Cardtronics’ ATM locator 
feature, available at 
<http://www.cardtronics.net/about/atmlocator.asp>www.cardtronics.net/about/atmlocator.asp. 


As part of the proposed remediation plan and 
subject to Court approval, Cardtronics has agreed 
to pay the amount of $145,000 in attorneys’ fees 
to the attorneys representing the class.  These 
amounts will not detract from Cardtronics duties 
to provide accessible ATMs to the class.  The 
Court will conduct a hearing on the motion of 
class counsel for their attorneys’ fees at the 
date and time set forth in the following 
paragraph.  Cardtronics has also agreed to pay an 
additional $60,000 to the NFB for testing that 
the NFB will conduct to ensure compliance with 
the remediation plan requirements.

YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of 
the Federal Rules of Civil Procedure and an Order 
of the Court dated May 18, 2010, and as 
thereafter amended that a Final Approval Hearing 
will be held on September 15, 2010, at 2:30pm, 
before that Court in the United States 
Courthouse, One Courthouse Way, Boston, 
Massachusetts 02210.  The purpose of this Final 
Approval Hearing is to determine whether the 
proposed remediation plan should be approved by 
the Court as fair, reasonable and adequate and 
whether the application for award of attorneys’ 
fees and reimbursement for expenses should be approved.

Class Members who wish to object to the proposed 
settlement must provide notice of and explanation 
of their objection in writing to the Court at the 
address above, with copies to Counsel at the 
addresses provided below, no later than Monday, 
August 30, 2010.  Only Class Members filing 
timely objections may request to present their 
objections at the Final Approval Hearing.

Office of the Massachusetts Attorney General Attn: Maura Healey, Esq.
100 Cambridge Street
11TH floor
Boston, MA 02108

Brown, Goldstein & Levy, LLP
Attn: Sharon Krevor-Weisbaum, Esq.
120 E. Baltimore Street
Suite 1700
Baltimore, MD 21202

Joseph Kociubes, Esq.
Bingham McCutchen LLP
150 Federal Street
Boston, MA 02110-1726

FOR FURTHER INFORMATION, VISIT 
<http://www.cardtronics.net/news/>www.cardtronics.net/news/ 
OR CONTACT COUNSEL FOR THE PLAINTIFFS:

Commonwealth of Massachusetts
Office of Attorney General
Disability Rights Project
(617) 727-2200
<http://www.mass.gov/ago>www.mass.gov/ago

OR

Brown, Goldstein & Levy, LLP
(410) 962-1030
<http://www.browngold.com/>www.browngold.com

EXCEPT AS INSTRUCTED IN THE NOTICE, PLEASE DO NOT CONTACT THE COURT.




Dated:  May 18, 2010                          By Order of the
                                                             United 
States District Court
                                                             For 
the District of Massachusetts


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


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 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”).[1]  Approximately half of these ATMs 
are owned by independent merchants who are 
customers of Cardtronics (“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 ATMs”).  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 (“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.    §§ 12181 et seq., and Section 4.34.5 of 
the Department of Justice Standards for 
Accessible Design, 28 C.F.R. 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)(1), 
(2) and 12205.  Plaintiffs have also alleged 
violations of the Massachusetts Public 
Accommodations Act (“MPAA”), Mass. Gen. Laws ch. 
272, §§ 92A and 98, and the Massachusetts Equal 
Rights Act (“MERA”), Mass. Gen. Laws ch. 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 
capabilities on all ATMs it owns and/or 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.

             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*TRADE.  From its 
inception, this litigation has been 
hard-fought.  As fully 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 ATMs 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 ATM user; and a set of no more than 
177 machines will be voice-guided by mid-2008.  (Settlement Agreement, ¶ 3.1.)
           As of April 9, 2007 and going forward, 
Cardtronics will only install Cardtronics-Owned 
ATMs that are voice-guided.  (Settlement Agreement, ¶ 3.1)
           As of April 9, 2007 and going forward, 
Cardtronics will only sell or make available to 
merchants ATMs that are voice-guided.  (Settlement Agreement,       ¶ 3.2.1.)
           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 
Upgradeable 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 ATMs 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 the upgrade or replacement offers 
described above.  (Settlement Agreement, ¶ 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, ¶¶ 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, ¶ 4.4.)
           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 ¶5.1)
           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, ¶¶ 7.1, 7.2.)
           Class members (excepting the named 
plaintiffs) do not release claims for 
damages.  (Settlement Agreement, ¶ 7.1.3.)
           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, ¶¶ 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, ¶ 
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, ¶ 2.7(d).)  In 
addition, Defendants have withdrawn their 
opposition to Plaintiffs’ motion for leave to 
file a Fourth Amended Complaint (Settlement 
Agreement, ¶ 2.1) and the Court has granted the 
parties’ joint motion for certification 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 approved 
the parties’ proposed plan for notifying class 
member of the settlement, as well as the form of 
the 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 1, 
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 and/or the Settlement 
Agreement.  Class counsel ultimately received and 
honored six requests for Braille documentation.
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 “[m]e 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)(1)(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 “[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, 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 of Detroit v. Grinnell Corp., 495 
F.2d 448, 463 (2d Cir. 1974), overruled on other 
grounds by Missouri v. Jenkins, 491 U.S. 274 (1989):
(1) the complexity, expense and likely duration 
of the litigation; (2) the reaction of the class 
to the 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 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 Court 
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 (9th Cir. 1991) (requirements of 
due process and Fed. R. Civ. 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 
Cir. 2004) (citations omitted).  “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 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(d)(2).  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 party its “reasonable 
attorney’s fee, including litigation expenses, 
and costs.”  42 U.S.C. § 12205.  Rules 23(h)(1) 
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. Great Northern 
Nekoosa Corp., 925 F.2d 518, 529 (1st Cir. 1991) 
(quoting In re Spillance, 884 F.2d 642, 647 (1st 
Cir. 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 that 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.
             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 terms 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: 
_________________________
                                                                                                                         U.S.D.J.


397837


[1] On or about June 2, 2004, Cardtronics LP acquired Access’s ATM business.


                         David Andrews:  dandrews at visi.com
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