Bank of America has long been a leader in its commitment to accessible digital content. The agreement posted here concerns accessibility enhancements to the bank’s travel rewards redemption site. This agreement was reached through Structured Negotiations, a collaborative dispute resolution process. The bank worked with blind customer Ashley Cwikla, the Law Office of Lainey Feingold, and Linda Dardarian of Goldstein, Borgen, Dardarian & Ho on this agreement.
- Read the press release announcing improvements to the travel rewards website
- Visit the Bank of America Accessibility Category on this website to read more about the bank’s accessibility initiatives and work with the blind community.
- Jump to a Simplified Summary of this Document, a feature of LFLegal.com designed to meet WCAG Success Criteria 3.1.5 (a WCAG 2.0 AAA Reading Level requirement).
SETTLEMENT AGREEMENT REGARDING BANK OF AMERICA CREDIT CARD REWARDS REDEMPTION SOLUTIONS
This Settlement Agreement (“Agreement”) is entered into by and between the following parties: Ashley Cwikla (“Claimant”) and Bank of America, N.A. (“Bank of America”), collectively referred to as the “Parties”, for the purposes and on the terms specified herein and operates in conjunction with the Confidential Addendum to this Agreement.
This Agreement is based on the following facts:
- Ashley Cwikla is an individual who is visually impaired, who currently has one or more bank and/or credit card accounts with Bank of America, and who uses www.bankofamerica.com to conduct online banking and other financial transactions. Cwikla is an individual with a disability within the meaning of Section 3(2) of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, 12102(2) (“ADA”), the Title III regulations implementing the ADA contained in 28 C.F.R. §§ 36.101, et seq. (“ADA Regulations”), and the laws of Massachusetts.
- Bank of America is a national bank engaged in various financial services activities, including, but not limited to consumer deposit and lending operations.
- Bank of America has been, and continues to be, an industry leader in providing accessible services to Persons with Visual Impairments. Bank of America was an early provider of Talking ATMs and the first financial institution in the United States (in 2000) to sign an agreement to make its website accessible to Persons with Visual Impairments.
- Although most aspects of www.bankofamerica.com are accessible to and usable by Persons with Visual Impairments, a dispute has arisen between Claimant and Bank of America concerning the accessibility to Persons with Visual Impairments of Bank of America Credit Card Rewards Redemption Solutions available to Bank of America customers on the Bank of America Website (“the Dispute”).
- On or about June 11, 2014, Claimant notified Bank of America about the Dispute and offered to engage in Structured Negotiations, in lieu of litigation, to resolve the Dispute. Bank of America agreed to participate in Structured Negotiations and the Parties have engaged in good faith negotiations and shared relevant information regarding the Dispute. The Parties now enter into this Agreement in order to resolve the Dispute and to avoid the burden, expense, and risk of potential litigation. By entering into this Agreement, Bank of America does not admit, and specifically denies, that it is subject to or has violated or failed to comply with any provisions of the ADA, any applicable laws of any state relating to accessibility for persons with disabilities, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Bank of America of any such violation or failure to comply with any applicable law, or that the ADA or any other state law relating to accessibility applies to Bank of America. This Agreement and its terms and provisions, including all Exhibits, shall not be offered or received as evidence for any purpose whatsoever against Bank of America in any action or proceeding, other than a proceeding to enforce the terms of this Agreement and the Confidential Addendum executed herewith.
NOW, THEREFORE, the parties hereby agree to the following provisions:
As used in this Agreement, the following terms shall be as defined below:
- Bank of America Credit Card Rewards Redemption Solutions means a suite of applications and services that Bank of America offers its online banking customers to redeem their credit card rewards for travel, gift card, cash and other rewards. As of the Effective Date, Bank of America Credit Card Rewards Redemption Solutions are available through Bank of America Web Site or www.bankofamerica.com for Bank of America customers who have an eligible credit card and are enrolled in Online Banking.
- Bank of America Web Site or www.bankofamerica.com means the website owned and operated by Bank of America and all the pages of that website available to the public or to Bank of America customers.
- Claimant’s Counsel means Goldstein, Borgen, Dardarian & Ho, the Law Office of Lainey Feingold, and the attorneys practicing law therein.
- Effective Date means November 1, 2014.
- New Bank of America Credit Card Rewards Redemption Solutions means any replacement of or new functionality added to, Bank of America Credit Card Rewards Redemption Solutions offered on the Bank of America Website for the first time after the Effective Date.
- Person or Persons with Visual Impairments means any person who has a physical or mental impairment that substantially limits him or her in the major life activity of seeing.
- Reasonable Efforts means, with respect to a given obligation, the efforts that a reasonable entity in Bank of America’s position would use to perform that obligation. In no event shall an obligation to use Reasonable Efforts under this Agreement require Bank of America to: (a) take any actions that would cause Bank of America to incur an Undue Burden as defined in 28 C.F.R. 36.104, or (b) fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered by Bank of America.
- WCAG 2.0 means the Web Content Accessibility Guidelines 2.0 promulgated by the Web Accessibility Initiative (“WAI”) of the World Wide Web Consortium (“W3C”).
2. Duration of Agreement.
The terms of this Agreement shall remain in effect for six (6) months after the date of the launch of the New Bank of America Credit Card Rewards Redemption Solutions.
3. New Bank of America Credit Card Rewards Redemption Solutions Available for the First Time After Effective Date.
- Bank of America will use Reasonable Efforts to ensure that the planned launch of the New Bank of America Credit Card Rewards Redemptions Solutions substantially satisfy Level A and AA Success Criteria set forth in WCAG 2.0 no later than June 30, 2015.
- Notwithstanding 3.1, Claimant recognizes that Bank of America is in the process of converting its credit card portfolio to another technology platform (i.e., TSYS) and issues arising during such conversion may delay the launch of the New Bank of America Credit Card Rewards Redemption Solutions. Bank of America will notify Claimant’s Counsel of any such delay that has the potential to impact its ability to meet the deadline set forth in Section 3.1. Bank of America will use Reasonable Efforts to minimize the duration of such delay. In addition, in the event there is a delay in launching the New Bank of America Credit Card Rewards Redemption Solutions, the parties will work together to either (i) set a mutually agreed upon revised launch plan for Bank of America; or (ii) agree upon accessibility enhancements to the existing Bank of America Credit Card Rewards Redemption Solutions site.
4. Testing of New Bank of America Credit Card Rewards Redemption Solutions.
- Prior to the launch of the New Bank of America Credit Card Rewards Redemption Solutions, Bank of America will conduct reasonable usability and accessibility testing of any pages where the New Bank of America Credit Card Rewards Redemption Solutions is presented consistent with its testing protocols currently in place for the Bank of America Website. If the testing uncovers accessibility issues, Bank of America will use Reasonable Efforts to remedy accessibility defects as soon as reasonably practicable considering customer experience impacts, platform stability, and related factors. Bank of America will notify Claimant’s Counsel of the results of its usability and accessibility testing, and of the schedule for remediating any accessibility defects.
- No later than the date of the launch of the New Bank of America Credit Card Rewards Redemption Solutions or June 30, 2015, whichever is earlier, Bank of America will conduct training for appropriate Bank of America and/or third party customer service telephone staff to enable persons being trained to assist Persons with Visual Impairments who use the New Bank of America Credit Card Rewards Redemption Solutions.
6. Meetings Regarding Accessibility of the Bank of America Web Site.
- At Claimant’s request, the Parties shall meet by telephone during the Term of this Agreement to discuss any issues regarding the accessibility of Bank of America Credit Card Rewards Redemption Solutions or any other aspect of the Bank of America Website to Persons with Visual Impairments.
7. Procedures in the Event of Disputes.
- 7.1 Notice of Non-Compliance.
- If at any time during the Term of this Agreement a party has a good faith, reasonable belief that the other party has not materially complied with any provision of this Agreement, that party shall provide the other party with notice of non-compliance containing the following information:
- 7.1.1 the alleged act of non-compliance;
- 7.1.2 a reference to the specific provision(s) of the Agreement that are involved;
- 7.1.3 a statement of the remedial action sought by the initiating party; and
- 7.1.4 a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating party.
- 7.2 Meet and Confer.
- Within thirty (30) days of receipt of such notice provided pursuant to Section 7.1, Claimant and Bank of America shall informally meet and confer and attempt to resolve the issues raised in the Notice.
- 7.3 Submission to Binding Arbitration.
- If the matters raised in the Notice provided pursuant to Section 7.1 are not resolved within thirty (30) days of the initial meet and confer required by Section 7.2, either party may submit the unresolved matters to binding arbitration as set forth herein.
- 7.3.1 Arbitration shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules and Procedures and the Expedited Procedures referenced therein (collectively the “JAMS Rules”). The Parties shall, acting reasonably and in good faith, mutually agree upon an arbitrator. Any arbitration awards, rulings and opinions shall be deemed confidential and shall not be shared with any third parties unless otherwise agreed by the Parties hereto or unless otherwise required by law.
- 7.3.2 Law Governing Interpretation and Application of Agreement. The terms of this Agreement, and the provisions thereof, shall be interpreted and applied pursuant to the ADA, or where the ADA does not provide guidance, pursuant to the laws of the State of Massachusetts.
8. Notice or Communication to Parties.
Any notice or communication required or permitted to be given to the parties hereunder shall be given in writing by email and United States mail, addressed as follows:
Linda M. Dardarian
c/o Goldstein, Borgen, Dardarian & Ho
300 Lakeside Drive, Suite 100
Oakland, CA 94612
[email address omitted]
Law Office of Lainey Feingold
[email address omitted]
To Bank of America:
1100 N. King Street
Wilmington, DE, 19884
Attn: Ivan Seele or Card Rewards Executive
With a copy to (that shall not be deemed Notice): Jim Rau
Associate General Counsel
Bank of America N.A.
1100 N. King Street
Wilmington, DE 19884
9. Publicity Regarding This Agreement and Its Terms.
- The Parties will negotiate a joint press release to be issued within 30 days of the launch of the New Bank of America Credit Card Rewards Redemption Solutions. The press release will be posted on Claimant’s Counsel’s website at www.lflegal.purplepen.com. If the Parties cannot agree on a joint press release, either party may send their own press release, provided that (i) the content is consistent with this Agreement; and (ii) a copy of the release is provided to all Parties and their counsel at least twenty-four (24) hours before it is sent to the press. All public statements made about this Agreement shall be consistent with the terms of this Agreement and shall reflect the collaborative method in which the Parties resolved the Dispute. Nothing in any such release shall indicate that Bank of America or its affiliates is in violation of, or admitted to a violation of, the ADA or any other law or regulation.
10. Modification in Writing.
- No modification of this Agreement by the Parties shall be effective unless it is in writing and signed by authorized representatives of all the parties hereto.
11. Agreement Binding on Assigns and Successors; No Third Party Beneficiaries.
- 11.1 Assigns and Successors.
- This Agreement shall bind any assigns and successors of Bank of America. Bank of America shall use Reasonable Efforts to notify Claimant’s Counsel in writing within thirty (30) days of the existence, name, address and telephone number of any assigns or successors of Bank of America.
- 11.2 No Third Party Beneficiaries.
- The Settlement Agreement is for the benefit of the Parties hereto only and no other person or entity shall be entitled to rely hereon, receive any benefit herefrom, or enforce against either party any provision hereof. The Parties specifically intend that there be no third party beneficiaries to this Agreement.
12. Force Majeure.
- The performance of Bank of America under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, unavailability of parts, equipment or materials through normal supply sources. If Bank of America seeks to invoke this Section, it shall notify Claimant’s Counsel in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non- performance. Claimant’s Counsel and Bank of America will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 7 of this Agreement.
13. Integrated Agreement.
- This Agreement and the Confidential Addendum executed concurrently herewith constitute the entire Agreement relating to the subject matters addressed therein.
14. Rules of Construction.
- Each party and their legal counsel have reviewed and participated in the drafting of this Agreement; and any rule of construction to the effect that ambiguities are construed against the drafting party shall not apply in the interpretation or construction of this Agreement. Section titles used herein are intended for reference purposes only and are not to be construed as part of the Agreement. The Recitals are integral to the construction and interpretation of this Agreement and are therefore incorporated into this Agreement in their entirety.
15. Multiple Originals/Execution in Counterparts.
- Each Party and Claimant’s Counsel shall sign one copy of this document and each such copy shall be considered an original. This document may be executed in counterparts, and facsimile and PDF signatures shall be accepted as original.
- ASHLEY CWIKLA
By: Ashley Cwikla
- Bank of America, N.A.
By: Ivan Seele
APPROVED AS TO FORM:
- GOLDSTEIN, BORGEN, DARDARIAN & HO
By: Linda M. Dardarian, Esq.
- LAW OFFICE OF LAINEY FEINGOLD
By: Lainey Feingold, Esq.