Wells Fargo California Talking ATM and Alternative Format Agreement

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This document is the settlement agreement with Wells Fargo about Talking ATMs in California. The agreement is also about braille and large print and audio banking documents. Wells Fargo was the first bank in the United States to install Talking ATMs all over a state. Lainey Feingold and Linda Dardarian were the lawyers for the blind community. No lawsuit was filed. Instead, a formal process known as Structured Negotiations was used. The California Council of the Blind was involved.

Wells Fargo Device

4. Auxiliary Aids and Services for Print Material.

4.1 Provision of Auxiliary Aids and Services for Print Material.
Within one-hundred-twenty (120) days of the Effective Date, Wells Fargo shall enhance its process for providing Auxiliary Aids and Services to ensure effective communication of printed materials to Persons with Vision Impairments, to the extent required by the ADA and State Acts, as follows:
  • 4.1(a) Individuals must identify themselves to Wells Fargo as Persons with Vision Impairments in need of Auxiliary Aids and Services.
  • 4.1(b) If more than one Auxiliary Aid or Service is effective to communicate a particular printed material to a Person with Vision Impairment, Wells Fargo shall select the effective method of its choice and shall provide it within a reasonable time period.
  • 4.1(c) If a Person with Vision Impairment contends that a particular Auxiliary Aid or Service offered by Wells Fargo does not provide effective communication of the particular printed material, Wells Fargo shall consult with that customer to identify other Auxiliary Aid(s) or Service(s) that will ensure effective communication of the printed information to that customer and shall provide, within a reasonable time period, the Auxiliary Aid or Service of its choice from those formats identified. If a Person with Vision Impairment seeks to obtain a specific Auxiliary Aid or Service other than that selected by Wells Fargo, and Wells Fargo has reasonable cause to believe that the requested Auxiliary Aid or Service is not required under this section, Wells Fargo may require that the Person with Vision Impairment demonstrate a specific need for the requested Auxiliary Aid or Service, provided that the methods for demonstrating that need do not violate the ADA or State Acts.
4.2 Magnifiers.
If Wells Fargo supplies magnifiers as an Auxiliary Aid, Wells Fargo shall describe the magnifier’s power or magnification strength.
4.3 Raised Line Checks.
Wells Fargo will provide raised line checks for consumer checking and market rate accounts to Persons with Vision Impairments at a cost not to exceed the cost of the most comparable basic checks.
4.4 No Charge for Auxiliary Aids and Services.
Wells Fargo will not impose any charges or fees on Persons with Vision Impairments for providing any Auxiliary Aids and Services for print materials pursuant to this Agreement.

4.5 Limitation on Remedies.

4.5.1 Effect of Non-Compliance.
A breach of Section 4 shall occur only where Claimants or Council can establish that Wells Fargo has engaged in a pattern or practice of non-compliance with Section 4.1. The Parties agree that the fact that a Person with Vision Impairment is dissatisfied with a particular Auxiliary Aid or Service, or with Wells Fargo’s failure to provide a specific Auxiliary Aid or Service to a Person with Vision Impairment, shall not constitute a breach of this Agreement. No breach of contract claims related to Wells Fargo’s provision of Auxiliary Aids and Services under this Agreement may be maintained by persons who are not parties to this Agreement.
4.5.2 Reporting.
During the term of this Agreement, Wells Fargo will provide an annual report describing and quantifying the Auxiliary Aids and Services provided pursuant to this Agreement to the extent that the information is readily available. For example, Wells Fargo will state the number of accounts supported with Braille statements and the number of magnifiers distributed during that year.

5. Maintenance of Enhanced ATMs

Wells Fargo will maintain its Enhanced ATMs in operable working condition at all times except for isolated or temporary interruptions in service due to maintenance or repairs. Should an Enhanced ATM malfunction, Wells Fargo will correct the problem within 24 hours of receiving notice of the problem if Wells Fargo receives notice of the malfunction on Monday through Friday or by the next business day if Wells Fargo receives notice of the malfunction on the weekend.

6. Training Regarding Enhanced ATMs and Auxiliary Aids and Services.

Wells Fargo will train its employees who serve the public in California regarding the use and operation of the Enhanced ATMs and the availability of Auxiliary Aids and Services for Persons with Vision Impairments in accordance with its normal training practices. Within ninety (90) days of the Effective Date, Wells Fargo will retain an outside consultant, who will be proposed by Wells Fargo and approved by Claimants, Council and Counsel in their reasonable discretion, to advise Wells Fargo on the development of its training materials and procedures regarding the use and operation of the Enhanced ATMs and the availability of Auxiliary Aids and Services to Persons with Vision Impairments.

7. Future Compliance with Statutes, Regulations and Standards.

7.1 Effect of Change in Law or Regulation.
The parties acknowledge that after the Effective Date, standards for access to ATM services by or the provision of Auxiliary Aids and Services to Persons with Vision Impairments, which are different from Wells Fargo’s obligations under this Agreement, may be established by applicable new laws or regulations. In the event of such a change, the parties agree that where the new law or regulation imposes a less rigorous obligation than provided in this Agreement, Wells Fargo’s compliance with the new law or regulation will constitute compliance with this Agreement, provided that Wells Fargo follows the procedures set forth in Section 7.2, below. Where the law imposes a more stringent obligation than provided in this Agreement, the parties agree that: (1) nothing in this Agreement shall limit Wells Fargo’s obligation to comply with or Claimants’ ability to pursue claims under any such applicable laws and regulations that are amended or enacted after the Effective Date of this Agreement; and (2) no action by Wells Fargo, which is permitted or required by such laws or regulations, shall constitute a breach of this Agreement. Prior to the initiation of any litigation raising claims based on a change in the applicable law or regulations after the Effective Date of this Agreement, the Parties will follow the Alternative Dispute Resolution Procedures outlined in Section 9 of this Agreement.
7.2 Modification Based on Change of Law or Regulations.
If any party to this Agreement contends that there is a change in any applicable law or regulation, which will necessitate a modification under Section 7.1 because it imposes a less rigorous obligation than provided in this Agreement, that party shall notify counsel for the other parties in writing. The notification will include the way in which the party contends the Agreement should be modified as a result of the change in law or regulation. The proposed modification will become effective thirty (30) days after such notification unless counsel for the other parties object in writing to the proposed modification. In the event of disagreement between the parties over the appropriate modifications to this Agreement as contemplated by this Section, the parties shall meet and confer and shall work together in good faith to resolve the disagreement. Failure to reach agreement during such meet and confer shall be considered a dispute to be resolved pursuant to Section 9 of this Agreement.

8. Modification or Termination of Section 3 of the Agreement.

8.1 Commercially Untested Nature of Enhanced ATM Technology.
The parties acknowledge that the technology necessary to provide the Enhanced ATMs provided for in Section 3 of this Agreement has not been tested or demonstrated in a commercially proven application in the United States. Because Enhanced ATMs have not been so tested or demonstrated, the parties acknowledge that:
  • 8.1.1 The development, testing, implementation and rollout of the Enhanced ATM may have a substantial adverse effect on the individual performance of a substantial number of Enhanced ATMs or on the overall performance or security of Wells Fargo’s ATM operations; or
  • 8.1.2 The available technology may not permit Wells Fargo to develop and install an Enhanced ATM that will operate effectively to enable Persons with Vision Impairments to perform the Core Functions.
8.2 Notice.
If Wells Fargo concludes, based upon the exercise of its reasonable business judgment and discretion, that the conditions set forth in Sections 8.1.1 or 8.1.2 have occurred or will occur, Wells Fargo shall provide Claimants, Council and Counsel with written notice that states (a) which condition has occurred or will occur; (b) the factual basis for Wells Fargo’s conclusion that a condition stated in Sections 8.1.1 or 8.1.2 has occurred or will occur; (c) whether Wells Fargo seeks to modify any portion of Section 3 of the Agreement to address the condition that has occurred or will occur, and if so, what modification Wells Fargo seeks; and (d) whether Wells Fargo seeks to terminate a provision of Section 3 of the Agreement to address the condition that has occurred or will occur, and if so, what provision of the Agreement Wells Fargo seeks to terminate and the reasons therefore.
8.3 Performance Suspended.
Delivery by Wells Fargo to Claimants, Council and Counsel of Wells Fargo’s written notice shall suspend for forty-five (45) days Wells Fargo’s performance of its executory obligations under the portion of Section 3 of the Agreement that Wells Fargo seeks to modify or terminate. Any such suspension shall not constitute a breach of Section 3 of this Agreement, shall not excuse the continued performance of the Agreement by Claimants and Council during the suspension period, and shall not excuse Wells Fargo’s continued performance during the suspension period of all other portions of the Agreement not affected by the suspension.
8.4 Meet and Confer and Parties’ Right to Terminate.
Within thirty (30) days after Claimants’, Council’s and Counsel’s receipt of Wells Fargo’s written notice, the parties shall informally meet and confer to attempt to reach an agreement regarding the matters stated in the notice. Prior to the meet and confer, upon Claimant’s or Council’s reasonable request, Wells Fargo will provide Claimants and Council with reasonably sufficient information and related documents for them to assess the matters stated in Wells Fargo’s notice. If the parties are able to agree upon the matters stated in Wells Fargo’s notice, they shall work together in good faith to agree upon an appropriate amendment to Section 3 and the other sections governing the Enhanced ATMs (the “affected portions of this Agreement”). If within fifteen (15) days after the meet and confer the parties are unable to agree upon the matters stated in Wells Fargo’s notice or upon an appropriate amendment to the affected portions of this Agreement, either party may elect in writing to terminate the affected portions of this Agreement, which termination shall be effective ten (10) days after the other party’s receipt of written notice of termination, unless during such ten (10) day period the parties have agreed upon an amendment to the affected portions of this Agreement.
8.5 Modification.
If the affected portions of this Agreement are amended pursuant to mutual agreement under Section 8.4, the parties shall proceed with this Agreement as so amended. If the affected portions of the Agreement are not amended, the parties shall remain bound to perform the remaining portions of the Agreement.
8.6 Effect of Termination.
If the parties are unable to agree upon an amendment to the affected portions of this Agreement, and the affected portions of this Agreement are terminated pursuant to Section 8.4 then Claimants and Council shall have the right to file a lawsuit to assert any and all claims against Wells Fargo accruing after the Effective Date of the Agreement arising from Wells Fargo’s provision of ATM services in violation of the ADA and/or violation of the State Acts and regulations, and any and all claims arising from Wells Fargo’s breach of this Agreement. If the Court concludes that Wells Fargo properly exercised its business judgment in concluding that one or more of the conditions in Sections 8.1.1 or 8.1.2 have occurred or will occur, then Claimants’ and Council’s claim for relief shall accrue only as of the date of such termination and arise from Wells Fargo’s provision of ATM services in violation of the ADA and/or violation of the State Acts and regulations. If the court concludes that Wells Fargo did not exercise its reasonable business judgment and discretion in concluding that one or more of the conditions in Sections 8.1.1 or 8.1.2 have occurred or will occur, then Claimants’ and Council’s claim for relief shall accrue as of the Effective Date of the Agreement and arise from Wells Fargo’s provision of ATM services in violation of the ADA and/or violation of the State Acts and regulations, and from Wells Fargo’s breach of this Agreement.