Academic journal article ABA Banking Journal

ATMs in Spotlight over ADA: One Case Could Help Banks Avoid Paying Plaintiff Attorney Fees

Academic journal article ABA Banking Journal

ATMs in Spotlight over ADA: One Case Could Help Banks Avoid Paying Plaintiff Attorney Fees

Article excerpt

If you are a Washington Redskins fan like I am, two years can feel like an eternity. But if you are a bank diligently rushing to upgrade ATMs to comply with the 2010 Americans with Disabilities Act (ADA) Accessibility Standards, two years can fly by like halftime. On March 15, 2012, all ATMs were required to comply with the revised ADA that mandates ATMs be upgraded so visually impaired customers can use the machines without assistance. While I have not met a banker who is against the blind having access to ATMs, there are more than 400,000 ATMs in the United States, some of which have not been upgraded due to vendor delays. As expected, several banks have been sued by private litigants for noncompliance. One newspaper reported on a litigant who has already sued seven banks, and whose attorney promised more lawsuits. However, in some instances, a bank may avoid paying plaintiff attorney fees.

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ADA private litigants are only entitled to attorney fees if they are deemed a "prevailing" party by the court. In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court held that to be a prevailing party, the claimant must receive a judgment on the merits or by consent decree. In short, to receive attorney fees, the plaintiff must be awarded some relief by the court. Buckhannon argued that a West Virginia law violated the ADA and the Fair Housing Act, and while his claim was pending, the state legislature repealed the law in question, rendering the case moot. …

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