[Promotion-technology] Cardtronics Settlement
David Andrews
dandrews at visi.com
Mon May 31 22:42:14 UTC 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.
)
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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