ICBA Negotiates Settlement with Plaintiff Group on Alleged ADA Liability

by Bryan Cave
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Numerous community banks that had received demand letters from the advocacy group Access Now alleging that their websites and mobile apps are inaccessible in violation of Title III of the Americans With Disabilities Act (the “ADA”) have now also received letters that those claims have been resolved under a settlement with the Independent Community Bankers of America (ICBA).

The settlement releases ICBA members and non-member banks with assets of $50 billion or less from all ADA claims concerning their electronic banking services, including online banking, mobile banking, ATM services, and telephone banking.  The settlement resolves numerous claims that Access Now had made through its counsel, Carlson Lynch Sweet Kilpela and KamberLaw LLC.  ICBA announced the details of the settlement in a press release on its website.

The settlement preceded an announcement by the U.S. Department of Justice (“DOJ”) that it is withdrawing all rulemaking concerning website accessibility under the ADA.  The DOJ first announced its intent to promulgate such regulations in 2010.  Its announcement leaves uncertain the issue of whether, and when, there will be a government standard for website accessibility.

As part of the settlement, ICBA has adopted and encourages its members to implement a Restatement of Voluntary Access Principles, summarized below:

  1. Ensure accessibility. Make reasonable efforts to ensure that digital platforms and services are accessible to visually impaired and low vision customers, as well as potential customers and companions. One set of standards adopted by an industry group and deemed acceptable under the settlement is the World Wide Web Consortium’s Version 2.0 of the Web Content Accessibility Guidelines (“WCAG 2.0”). The ICBA press release states that “[n]othing herein is intended to suggest that members should adopt an accessibility standard greater than that which may ultimately be adopted by the United States Department of Justice, or that equal access may not lawfully be provided in an alternative fashion.”
  2. Train bank employees. Conduct periodic training for bank employees responsible for electronic banking service accessibility in order to promote greater accessibility.
  3. Develop electronic banking service accessibility guidelines. These internal guidelines should be designed to promote increased independent use of electronic banking services by customers and potential customers with disabilities, as well as their companions. The details of the accessibility policies adopted, if any, will be at the sole discretion of each member bank.
  4. Implement the principles within the next three years. In the event that formal guidelines are not issued by the U.S. Department of Justice in 2018, the ICBA encourages its members to implement its principles on or before December 31, 2020.
  5. Incorporate access information into existing customer service. Publicly post contact information for customers and potential customers who encounter access barriers in using electronic banking services, and respond promptly to inquiries or complaints.
  6. Encourage third-party vendors to comply with principles. Utilize existing vendor management and due diligence processes and communicate to the vendor that consumer-facing digital content provided by that vendor should conform to the ICBA’s principles.

Compliance with the principles above appears to be voluntary, but encouraged by ICBA.  It is unclear whether the settlement requires covered banks to adopt the principles in order to be released from claims by Access Now.

Banks should take note, however, that neither the settlement itself, nor the three-year timeframe for implementing any accessibility modifications, will protect them from litigation in the interim by other groups and individuals who allege access barriers in utilizing electronic banking services.  Accordingly, it is prudent to continue working, internally or with vendors, to address accessibility concerns.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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