TD Ameritrade Inc. and a blind customer who claimed she could not access key pages of the broker-dealer’s website in an alleged violation of the Americans with Disabilities Act have reached an agreement in principle to settle her discrimination lawsuit.
The discount brokerage firm will “ensure that all feasible components of its website are rendered accessible by certain deadlines, with key features being prioritized,” and will pay attorneys’, court and expert witness fees to Elizabeth Aldworth, the New York State resident who filed the class-action lawsuit in February, according to a letter that lawyers for both parties sent on Tuesday to a U.S. District Court judge in Albany.
TD Ameritrade will also “consider a monetary payment” to Aldworth, according to the letter, which did not discuss specific dollar amounts.
Of key importance to TD Ameritrade and some other brokerage firms that have been sued in similar discrimination cases this year, the settlement would end the prospect of expensive class-action litigation. “[T]he parties contemplate a settlement will resolve this litigation on an individual, not class, basis,” the letter said.
The securities industry fought vigorously against the now-vacated Department of Labor fiduciary rule primarily because it would have allowed individuals to bring class-action lawsuits.
“Most organizations want to settle before going through the lengthy and expensive process of fighting against certifying a class,” said C.P. Hoffman, a legal writer at LevelAccess, a software firm that advises companies and government organizations on improving technology for handicapped people.
Plaintiffs’ attorneys have unleashed a spate of so-called accessibility lawsuits against a range of consumer-facing companies since the Justice Department in December 2017 withdrew rule-makings proposed during the Obama administration aimed at clarifying terms of the federal disabilities law. In August alone, 193 individual and class-action lawsuits were filed citing inaccessible corporate websites, primarily in New York and Florida, according to LevelAccess. Six of the lawsuits, most of which were filed on an individual basis, involved financial services companies, according to the firm.
Retail broker-dealers as diverse as Morgan Stanley, Edward Jones and UBS Financial Services are among firms that are currently defending themselves in access suits brought by blind customers.
The Americans with Disabilities Act does not allow for monetary damages but plaintiffs are often paid in privately negotiated settlements. Attorneys’ fees, however, are the main expense for plaintiffs and are the key part of most negotiations, Hoffman said.
David Devaprasad, the lawyer representing Aldworth, and Howard Rogatnick, who represents TD Ameritrade, did not return calls for comment on their letter to Judge Christian F. Hummel. Lydia Reynolds, a lawyer co-representing Aldworth, said she could not comment on the status update letter because the settlement has not been made final.
In their letter to the judge, the lawyers said that TD Ameritrade at the end of August gave Aldworth and her representatives a live demonstration of steps it has already taken to make its website accessible to software made for the blind, and discussed future steps it plans to take. “[D]ue to the highly technical nature of many of the website features and content at issue, additional time is needed for the Parties to refine their agreement and to put it in final documentary form,” the letter said.
Kim Hillyer, a spokeswoman for TD Ameritrade, said she could not comment specifically on the Aldworth case because it remains a matter of pending litigation.
“The client experience is paramount to us, and we are committed to enhancing our platforms, solutions and other related offerings on a regular basis to ensure that they are capable of serving a diverse client base,” she said. “That includes evaluating the client experience from the perspective of those who may be deaf, hard of hearing, or visually impaired.”