SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
WELLS FARGO & COMPANY
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 202-11-239
- This Settlement Agreement ("Agreement") is made by and entered into between the United States of America and Wells Fargo & Company ("WFC") (collectively, the "Parties"). The Agreement resolves an investigation of WFC conducted by the United States Department of Justice ("United States") under Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181 - 12189, and the Title III implementing regulation, 28 C.F.R. pt. 36.
- The United States initiated its investigation of WFC after receiving several complaints made by and on behalf of individuals who are deaf, are hard of hearing, or have speech disabilities. The complainants alleged that WFC had violated Title III of the ADA when it refused to accept some calls made using relay services and instead referred such callers to telephone numbers with dedicated teletypewriter / telecommunications device for the deaf ("TTY / TDD") service. In addition, several complainants alleged that their calls to dedicated TTY / TDD telephone numbers did not result in effective communication or equal access to services because the calls were not answered with a TTY / TDD and/or callers were required to leave messages which never resulted in a return call or access to services available to individuals without disabilities via telephone. The United States investigated these complaints under the authority granted by Section 308(b)(1)(A)(i) of the ADA, 42 U.S.C. § 12188(b)(1)(A)(i), and 28 C.F.R. § 36.502.
- During the investigation, WFC acknowledged that, because of its concern regarding fraud perpetrated via individuals purporting to be relay services, some of its call centers stopped accepting calls made through relay services and, instead, referred those calls to dedicated TTY / TDD lines on or about March 2009. WFC represents that, after receiving negative feedback from individuals who are deaf, are hard of hearing, or have speech disabilities, WFC resumed accepting relay service calls for reasons unrelated to this investigation. The United States has concluded that these actions violated Title III of the ADA. WFC specifically denies that its temporary service change at some of its call centers to stop accepting relay service calls violated Title III of the ADA or any other law because, in WFC's view, it provided individuals who are deaf, are hard of hearing, or have speech disabilities with other means of effective communication, including its TTY / TDD lines and online banking services during the time that some of its call centers were not accepting relay service calls. WFC further denies that any service issues relating to its TTY / TDD lines violated Title III of the ADA or any other law. This Agreement is a negotiated compromise resolution and none of the terms of this Agreement shall be deemed to constitute an admission by WFC of any violation or liability under Title III of the ADA or any other law.
- In addition to issues involving the acceptance of relay calls, the United States and WFC have agreed to address ADA Title III issues more comprehensively.
- Title III of the ADA and the Title III implementing regulation prohibit discrimination on the basis of disability by public accommodations. 42 U.S.C. § 12182; 28 C.F.R. § 36.201. Specifically, Title III requires public accommodations to provide auxiliary aids and services when necessary to ensure effective communication with individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. Title III also requires public accommodations to make reasonable modifications to policies, practices, or procedures to afford access to persons with disabilities that is equal to the access afforded to individuals without disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a). Title III also allows for affirmative defenses (i.e., undue burden and fundamental alteration) in some situations. 42 U.S.C. § 12182(b)(2)(A)(ii-iii); 28 C.F.R. §§ 36.302(a) & .303(a).
- The Attorney General of the United States ("Attorney General") is authorized to enforce Title III of the ADA by seeking monetary relief for aggrieved persons, civil penalties, and full compliance with Title III's provisions, such as requiring public accommodations to make reasonable modifications to policies, practices, and procedures and provide auxiliary aids and services, 42 U.S.C. § 12188(b)(2); 28 C.F.R. § 36.504. The Attorney General may commence a civil action to enforce Title III in any situation where he has reasonable cause to believe that a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C. § 12188(b)(1)(B).
- The Parties to this Agreement are the United States and WFC.
- WFC owns and operates places of public accommodation throughout the United States, including Wells Fargo Bank and former Wachovia Bank. WFC is, therefore, a public accommodation as defined in section 301(7)(F) of the ADA, 42 U.S.C. § 12181(7)(F), and its implementing regulation, 28 C.F.R. § 36.104.
- The United States has determined that the complainants are individuals with a disability, as defined by the ADA and its implementing regulation, 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
- This Agreement shall apply to WFC and all WFC entities and lines of business that are subject to Title III of the ADA.
- In consideration of the terms of this Agreement, and except as provided in the Enforcement section of this Agreement and Paragraphs 47 through 55 and 57, and except with respect to claims for injunctive relief relating to physical accessibility of Facilities that are not Retail Stores as defined in this Agreement, the United States agrees to refrain from undertaking further investigation of or filing a lawsuit regarding ADA Title III claims that are based on events taking place prior to the Effective Date.
- The following definitions shall apply:
- The term "Employee(s)" shall mean contractors and individuals employed by WFC in an entity or line of business that offers consumer banking services (e.g., deposits, secured and unsecured lines of credit and loans, credit cards, and retail brokerage) whose job duties customarily involve significant communications with WFC customers or potential customers, or their companions, on behalf of WFC.
- The term "Retail Store" shall mean a Facility owned or leased by WFC where it offers retail (i.e., banking, Wells Fargo Home Mortgage, and/or Wells Fargo Advisors) financial services to members of the public.
- The term "Facility" shall have the meaning stated in § 106.5 of the 2010 ADA Standards for Accessible Design defined at 28 CFR § 36.104 ("2010 Standards").
ACTIONS TAKEN BY WELLS FARGO TO IMPROVE ACCESS FOR PERSONS WITH DISABILITIES
- Over the years, WFC has taken many actions to improve access for customers and potential customers, and their companions, with disabilities.
- ATM Accessibility. WFC represents to the United States that its approximately 12,100 ATMs allow for equal access for individuals with disabilities, including individuals who are blind or have low vision and require speech output to use ATMs. By March 15, 2012, all of WFC's ATMs will comply with all applicable regulations, including those for ATMs published in the Federal Register on September 15, 2010.
- Website Accessibility. Over the years, WFC has made a concerted effort to improve access on www.wellsfargo.com for individuals with disabilities. Among other things, WFC has advised the United States that it has provided effective communication of its website content on www.wellsfargo.com.
WFC states that it is committed to ensuring that individuals with disabilities can access its products, services and communications. On www.wellsfargo.com 1 it is WFC's policy that the following elements are presentable to all users in ways they can perceive:
- Images, photographs, charts and other customer-facing graphics;
- Customer-related documents and disclosures;
- Videos and other online multimedia content;
- Online forms.
In addition, WFC commits to continuing to meet the needs of individuals with disabilities by:
- Incorporating screen reader-specific features such as skip navigation on www.wellsfargo.com;
- Ensuring that individuals with low vision and/or who are color blind may manipulate text font and color on www.wellsfargo.com;
- Providing a way for online visitors to request accessible information or services by posting a telephone number and email address in a conspicuous location on the "Diversity and Accessibility" page which is accessible via a link at a predictable and accessible location on the www.wellsfargo.com home page;
- Testing of pages on www.wellsfargo.com for accessibility in accordance with internal policies on an annual basis.
- WFC commits to continue taking the actions set forth in Paragraph 15 and will take any actions that are necessary to achieve compliance with: (1) all applicable ADA regulations on or before the effective date of such regulations; and (2) all applicable technical assistance publications.
ADA Nondiscrimination Obligations Applicable to Title III Entities
- WFC has policies prohibiting discrimination on the basis of disability. WFC shall not discriminate against any individual on the basis of disability in the full and equal enjoyment of any of its goods, services, facilities, privileges, advantages, or accommodations and shall otherwise comply with Title III and section 503 of the ADA, 28 U.S.C. §§ 12181 - 12189, 12203, and the Title III implementing regulation, 28 C.F.R. pt. 36, including but not limited to the following:
- WFC shall not impose or apply eligibility criteria that screen out or tend to screen out an individual on the basis of disability from fully and equally enjoying any of its goods, services, facilities, privileges, advantages, or accommodations, 42 U.S.C. § 12182(b)(2)(A)(i) and 28 C.F.R. § 36.301(a);
- WFC shall not refuse to make reasonable modifications in policies, practices, and procedures to afford equal access to its goods, services, facilities, privileges, advantages, or accommodations by persons with disabilities, 42 U.S.C. § 12182(b)(2)(A)(ii) and 28 C.F.R. § 36.302;
- WFC shall furnish appropriate auxiliary aids and services, free of charge, when necessary to ensure effective communication with individuals with disabilities and shall take any and all steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, 42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. §§ 36.301(c), 36.303;
- WFC shall not engage in any action prohibited by section 503 of the ADA, 42 U.S.C. § 12203 and 28 C.F.R. § 36.206;
- Title III also allows for affirmative defenses in some situations. 42 U.S.C. §§ 12182(b)(2)(A)(ii)(fundamental alteration defense to reasonable modification requirement), 12182(b)(2)(A)(iii)(fundamental alteration and undue burden defenses to auxiliary aid requirement); 12183(a)(1)(structural impracticability defense for new construction), 12183(a)(2)(technical infeasibility defense for alterations), 12182(b)(2)(A)(iv)-(v)(defense that barrier removal is not readily achievable). WFC may rely upon any and all applicable affirmative defenses.
Adoption and Implementation of Enhanced Effective Communication Policy
- To reinforce its commitment to equal access for persons with disabilities, WFC has adopted and, as set forth in this Agreement, will implement and maintain the Wells Fargo & Company Policy for Effective Communication for Individuals with Disabilities ("Policy") attached to this Agreement as Exhibit A and incorporated herein by reference. WFC will implement and maintain the Policy in accordance with the deadlines set forth herein. WFC shall not revise the Policy without prior written approval of the United States, which will not be unreasonably withheld or delayed. Reasonable grounds for WFC to revise, or for the United States to require WFC to revise, the Policy may include, but are not limited to, changing the Policy to conform to changes in the ADA statutory language, changes in the Title III regulation, or changes that are necessary in view of advances or changes in available technology or to comply with other laws and regulations that are not preempted by federal law.
- Within sixty (60) days of the Effective Date, for each line of business having communications with customers or potential customers, WFC shall establish procedures for implementing the Policy. Within sixty (60) days of the Effective Date, WFC shall submit to the United States for its review and approval the procedures for implementing the Policy for lines of business that offer consumer banking services (e.g., deposits, secured and unsecured lines of credit and loans, credit cards, and retail brokerage).
- Within thirty (30) days after the United States approves the procedures for relevant lines of business, WFC will distribute the Policy to Employees and within thirty (30) days thereafter shall furnish to the United States documentation confirming the distribution. WFC shall distribute the Policy to remaining employees within one hundred fifty (150) days after the Effective Date and within thirty (30) days thereafter shall furnish to the United States documentation confirming the distribution. Thereafter, WFC shall distribute its Policy to all newly-hired employees within sixty (60) days after their start date.
- Within thirty (30) days after the Policy is distributed to Employees under paragraph 21 above, WFC shall post and maintain a copy of the summary description of the Policy, attached hereto at Exhibit B, on the "Diversity and Accessibility" page which is accessible via a link that is in a predictable and accessible location on the www.wellsfargo.com home page, in a format accessible to persons with disabilities (i.e., HTML). WFC will also make the summary description available in alternate formats (such as large print, Braille, audio recording, electronic formats) upon request with reasonable promptness.
- WFC shall provide an educational training program regarding its obligations under Title III of the ADA and the Policy to Employees. WFC submitted the training materials to the United States for review, and the United States approved them, before the Effective Date. Within three hundred sixty (360) days after the Effective Date, WFC shall provide the training to Employees who are not on leave or salary continuation pursuant to a reduction in force. Employees who work in WFC call centers or banking stores shall be trained first. Employees who are on leave or salary continuation pursuant to a reduction in force at the time of the training will be trained within sixty (60) days after their return to service, or when their line of business has been trained, whichever is later. Pursuant to its reporting obligations under Paragraphs 60 and 61 of this Agreement, WFC shall provide the United States with proof that such training has occurred and that Employees not on leave or salary continuation pursuant to a reduction in force have received it.
- For any individuals employed by WFC (including contractors) who are not considered Employees under this Agreement, WFC will require that they follow the procedures for their line of business before making any decision to provide or not to provide auxiliary aids and services.
- Prior to the investigation, and without prompting by the United States, WFC had resumed accepting relay calls at all of its call centers. To provide equal access to its telephone services for individuals with disabilities, WFC shall continue to require its Employees to accept calls via relay services. WFC shall provide direct access to its services to individuals with disabilities who communicate using relay services and shall no longer require its Employees to refer or transfer any calls made through relay services to phone numbers designated for TTY / TDD devices or to a specific subset of Employees designated to handle relay calls. In circumstances where a non-relay call is typically handled by a call center or by transferring it to another Employee, a call made via a relay service may also be referred to a call center or transferred to another Employee.
- When an Employee receives a call made through a relay service, the Employee may take reasonable steps to ensure that the call is valid. These steps (1) may include verification of personal information so long as the procedures used for verification are the same as the procedures used with a caller who does not communicate using a relay service; and (2) may not be based on the fact that a customer has called using a relay service. As with any call, WFC may decline to provide service over the telephone if the customer cannot be authenticated through the verification process. After such verification has been completed, the Employee shall provide to the person with a disability communicating through a relay service access to any service that the Employee would provide to a person without a disability who is communicating with WFC by telephone without a relay service.
- WFC shall provide training on the use of relay services to place and receive telephone calls to Employees. Such training shall include information regarding the use of each different type of relay service (TTY relay service, IP relay service, and video relay service), the procedures to be followed, and the telephone numbers to be used locally to contact each type of relay service to place a relay call. Within one hundred and eighty (180) days after the Effective Date, WFC shall provide the training to Employees who work at call centers and who are not on leave or salary continuation pursuant to a reduction in force. Within one year after the Effective Date, WFC shall provide this training to Employees who work in its Retail Stores and who are not on leave or salary continuation pursuant to a reduction in force. Employees who are on leave or salary continuation pursuant to a reduction in force at the time of the training will be trained within sixty (60) days after their return to service or when their line of business is trained, whichever is later.
- Within one hundred twenty (120) days after the Effective Date, WFC shall affix a sticker to each piece of telephone equipment (e.g., telephones, computer terminals and call handling stations, and telephone switchboards) used by Employees at WFC call centers to answer telephone calls from customers or potential customers. The sticker, which shall be prominently displayed in a location that is easy for Employees to see, shall say "To assist our customers who are deaf, hard of hearing, or have speech disabilities, we accept relay calls." Such stickers shall be maintained, refreshed as necessary, and installed on newly leased or acquired equipment used to answer telephone calls. An isolated failure to affix and maintain a sticker on a particular piece of telephone equipment shall not be deemed to be a material breach of this Agreement provided that WFC implements procedures for periodically checking telephone equipment for stickers.
- The term "relay services" shall mean any calls made through an FCC-approved telecommunications relay system, including telephone / TTY-based relay services, Internet-based relay services, video-based relay services provider, or other FCC-approved relay service that may come into existence as communications technology advances. Telephone / TTY relay services involve a relay operator who uses both a standard telephone and a TTY to type the voice messages to the TTY user and read the TTY messages to the standard telephone user. Internet-based relay services involve a relay operator who uses both a standard telephone and a computer terminal to type the voice messages as text to the computer / smart phone / cellular phone user and read the text messages to the standard telephone user. Video relay services involve a relay operator who uses both a standard telephone and a computer video terminal to communicate voice messages in sign language to the computer video terminal user and to voice the sign language messages to the standard telephone user.
Phone Lines Dedicated to TTYs / TDDs
- Within sixty (60) days after the Effective Date, to ensure equal access for persons with disabilities who elect to use TTYs / TDDs to directly communicate with WFC, WFC shall ensure that, to the extent that is has dedicated telephone lines for TTYs / TDDs, they are staffed, during the same hours, on a basis equivalent to the staffing provided for telephone lines that are not dedicated to TTYs / TDDs. Specifically, for telephone services in which WFC provides access to its representatives 24 hours a day, 7 days a week, WFC will provide the same level of access to callers who use TTYs / TDDs. The response time for TTY/TDD calls shall be the same as the response time for callers calling into non-TTY/TDD lines. Callers using TTYs / TDDs shall not be directed to leave a message in any circumstance in which callers who do not use TTYs / TDDs would instead be connected to a representative.
Effective Communication During Face-to-Face Services
- Pursuant to the Policy, WFC shall provide customers and potential customers, and their companions, who are deaf, are hard of hearing, or have speech disabilities with appropriate auxiliary aids and services, including qualified sign language interpreters and oral interpreters, where necessary to ensure effective communication during face-to-face encounters.
- WFC will consult with customers, potential customers, and their companions, whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with WFC, provided that the method chosen results in effective communication. As set out in the Policy at Exhibit A, the determination shall take into account the nature, circumstances, length, complexity, and importance of the communication, as well as the communication skills of the person with a disability for whom auxiliary aids and services have been requested. Also as set out in the Policy, although WFC will recognize the individual's preferred mode of communication, there may be situations where an auxiliary aid or service is provided that is different than the one requested, so long as WFC ensures effective communication.
Definitions Related to Effective Communication
- The term "appropriate auxiliary aids and services" shall mean:
- Qualified sign language and oral interpreters (including on-site and video remote interpreting ("VRI") services), note takers, computer-aided real time transcription services ("CART"), written materials such as the exchange of notes, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TTYs / TDDs, videotext displays, telephone communication using relay services, accessible websites that convey audibly presented information visually, and other methods of delivering effective communication to individuals who are deaf, are hard of hearing, or have speech disabilities, including methods that may come into use or existence; and
- Qualified readers, note takers, audio recordings, Braille materials, large print materials, materials in accessible electronic formats (e-mail, HTML, word processing format), tactile materials (e.g., raised line checks and check writing templates), video magnification devices and software, screen reader software, accessible websites, ATMs with tactile input and audible output, and other methods of delivering effective communication to individuals who are blind or have low vision.
- The terms "qualified sign language interpreter," "oral interpreter," or "interpreter" shall mean an interpreter who is able to interpret competently, accurately and impartially, both receptively and expressively, using any specialized terminology necessary for effective communication in an office setting with an individual who is deaf or hard of hearing. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a "qualified sign language interpreter" under this Agreement. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter.
- The term "video remote interpreting ("VRI") service" means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images meeting the following requirements:
- Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;
- A sharply delineated image that is large enough to display the interpreter's face, arms, hands, and fingers, and the participating individual's face, arms, hands, and fingers, regardless of his or her body position;
- A clear, audible transmission of voices; and
- Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI.
- "Qualified reader" means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.
- "Companion" means a family member, friend, or associate of an individual seeking access to, or participating in, WFC's goods, services, facilities, privileges, advantages, or accommodations, who, along with such individual, is an appropriate person with whom WFC should communicate. WFC will, in consultation with the individuals involved, determine whether the family member, friend, or associate is an appropriate person to communicate with in the particular situation presented.
Documents and Information in Alternate Formats
- Pursuant to its Policy, WFC shall provide customers, potential customers, and their companions who are blind or have low vision with appropriate auxiliary aids and services, including documents in alternate formats, where necessary to ensure effective communication.
Additional Steps to Improve ADA Compliance and Ensure Equal Access for Persons with Disabilities
- Within sixty (60) days after the Effective Date, WFC shall hire or appoint one or more full-time national ADA Coordinator(s). Although the individual(s) performing the ADA Coordinator function may change from time to time, WFC shall have at least one person performing the function of the ADA Coordinator at all times. The ADA Coordinator(s) shall coordinate WFC's efforts to comply with its responsibilities under the ADA and this Agreement, including the investigation of ADA Complaints, the coordination of corrective actions and relief for complainants to resolve ADA Complaints, and maintaining records of ADA Complaints, investigations, and actions taken to comply with this Agreement. The ADA Coordinator(s) will receive the training specified in Paragraphs 23 and 27, and will be well-versed regarding the terms of this Agreement, all Title III regulations, including appendices, the Department of Justice Title III technical assistance manual, and other relevant technical assistance materials posted on www.ADA.gov, including those posted after the Effective Date.
- Within sixty days (60) of the Effective Date, WFC shall make available and keep updated, office address(es), 1-800 telephone number(s), and email address(es) of the ADA Coordinator(s) on the "Diversity and Accessibility" page which is accessible via a link that is in a predictable and accessible location on the www.wellsfargo.com home page, in a format accessible to persons with disabilities (i.e., HTML).
- Within sixty days (60) of the Effective Date, WFC shall obtain and implement a toll free telephone number ("ADA Comment/Complaint Line") and an email address ("ADA Email Address") that are used solely to receive comments and complaints relating to treatment or access to WFC's services, benefits, privileges, advantages, facilities, and accommodations for individuals with possible disabilities ("ADA Comments/Complaints"). The ADA Coordinator(s) will ensure that each call and email with requests or comments requiring a response will receive a response within fourteen (14) days after it is received by the ADA Coordinator(s). Complaints shall be handled in accordance with Paragraph 42. The ADA Email Address shall provide an automatically-generated acknowledgment of receipt of incoming email.
- Within sixty days (60) of the Effective Date, WFC shall be responsible for receiving and investigating all ADA Complaints received at its ADA Comment/Complaint Line, ADA Email Address, or otherwise directed to their corporate office which may involve a person with a possible disability. WFC shall respond to any ADA Complaint as follows: (a) within one (1) business day after an ADA Complaint is received by the ADA Coordinator(s), WFC will acknowledge to the complainant its receipt; (b) within seven (7) business days after an ADA Complaint is received by the ADA Coordinator(s), WFC will commence an investigation, including communicating with the complainant if necessary, to find out the allegations of the complaint and will investigate the complaint with the appropriate WFC staff where the complaint originated; and (c) WFC will complete its investigation and respond to the complainant within forty-five business (45) days after the complaint is received by the ADA Coordinator(s), including discussing with the complainant, where appropriate, possible resolutions, including training or corrective actions for WFC staff and relief for the complainant. WFC represents that it has procedures in place to ensure that complaints directed to persons or places other than to the ADA Coordinator(s) are routed to the ADA Coordinator(s) with reasonable promptness. An isolated failure to comply with the deadlines set forth in this paragraph shall not be deemed to be a material breach of this Agreement.
- WFC will maintain written records of ADA Complaints, its investigations, and its responses to those ADA Complaints. WFC shall provide a summary of ADA Complaints, its investigations, and its responses to the United States pursuant to the reporting requirements of Paragraphs 60 through 61 of this Agreement. The summary shall include, at a minimum, the complaint receipt date, a description of the complaint, the disability at issue in the complaint, identification of the WFC location(s) complained about, the extent to which the investigation identified a need for remedial action or other relief, the remedial action taken or relief provided to the complainant, and the date on which the action was taken or relief provided.
- Within one hundred and twenty (120) days after the Effective Date, at all of its banking stores, WFC shall post signage stating "Wells Fargo provides accommodations under the Americans with Disabilities Act (ADA). For questions, comments, or concerns, please contact Wells Fargo at [ADA Comment/Complaint Line and ADA Email Address]." The signage shall be in a conspicuous location where Employees and visitors / customers can readily read it (e.g., in public areas where other notices required by federal and state laws are posted). It shall be printed in a bold font no smaller than 20 points on a contrasting background and shall be at least 9 inches tall by 12 inches wide. Physical copies of the signage will be maintained and refreshed, as needed. Within sixty (60) days after the initial posting of the signage, WFC shall provide the United States with proof thereof. An isolated failure to post or maintain a sign shall not be construed as a material breach of this Agreement provided that WFC implements procedures for periodically checking to ensure that signs are posted and maintained.
- Consistent with WFC's core value of customer service, WFC shall take appropriate action with respect to any Employee who engages in conduct that denies or interferes with the rights under Title III of the ADA of a person with a disability, including but not limited to the obligations to provide auxiliary aids and services as set out in this Agreement, including Exhibits, such as the provision of equal services to persons who use relay services to communicate by telephone. This action, which will include corrective action when appropriate, will be consistent with the action that WFC takes with respect to an Employee who commits a violation of any federal, state, or local law, or policy adopted by WFC to comply therewith.
Monetary Relief for Complainants
- The ADA authorizes the Attorney General of the United States to seek monetary relief on behalf of aggrieved persons. 42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2).
- This Agreement provides a mechanism for providing monetary relief to persons whom the United States, in its sole discretion, has determined: (1) have been harmed by WFC's violation(s) of Title III of the ADA as a result of WFC's actions or inactions prior to the Effective Date; and (2) have contacted the United States or otherwise been identified by the United States within the Claims Period as set forth in Paragraph 51 as having a potential claim ("Eligible Persons").
- In accordance with written instructions that will be provided from time to time by the United States, WFC will pay up to a total of sixteen million dollars ($16,000,000) in monetary relief to Eligible Persons whom the United States has determined should receive monetary relief under this Agreement. WFC shall take whatever actions are necessary to ensure that adequate funds are available in order to issue payments of monetary relief to Eligible Persons as directed by the United States subject to the sixteen million dollar ($16,000,000) cap. WFC shall bear all costs of making and issuing such payments. The United States shall bear no costs associated with payments of monetary relief to Eligible Persons.
- At least once each week during the ninety (90) days following the Effective Date, including on at least four (4) Sundays, WFC shall arrange and have published a Notice of Americans with Disabilities Act Settlement by Wells Fargo & Company ("Notice") as follows:
- Each Notice shall appear in the news sections of the following major newspapers:
- Los Angeles Times
- San Francisco Chronicle
- Dallas Morning News
- Houston Chronicle
- Miami Herald
- The Charlotte Observer
- New York Times
- Philadelphia Inquirer / Philadelphia Daily News
- Washington Post
- The Atlanta Journal-Constitution
- Arizona Republic (Phoenix)
- Denver Post
- Star Tribune (Minneapolis)
- Des Moines Register
- Las Vegas Review-Journal
- Each Notice shall be at least an eighth of a page in size. The text and format of the Notice shall be as set forth in Exhibit C.
- WFC shall provide proof of publication of the Notice to the United States within ten (10) business days following the date of the first publication and thereafter as requested.
- Within ten (10) days after the Effective Date, and thereafter for a period of ninety (90) days, WFC will publish and maintain the Notice on its website in an accessible and conspicuous location (i.e., directly linked from the primary web portals used by customers with a description that will enable customers to easily locate the information - e.g., Americans with Disabilities Act Settlement by Wells Fargo & Company) and accessible format (i.e., HTML).
- Within one hundred twenty (120) days after the Effective Date, WFC shall make a one time distribution of a copy of the Notice to each individual who is a current holder of a demand deposit account with WFC. The Notice shall be sent with the individual's account statement. The Notice shall be sent in print format to individuals who receive print format account statements; in electronic format to individuals who receive electronic account statements; and in both formats to individuals who receive both print and electronic format account statements. A copy of the Notice shall be provided in the appropriate alternate format to any individual who receives an alternate format account statement.
- The United States may conduct outreach to notify the public of this Agreement and the possibility of payment. Such outreach will not be limited or restricted in any way. In its discussions of this Agreement the United States does not plan or intend to disparage Wells Fargo.
- Within thirty (30) days after the Effective Date, WFC shall search its databases where records of complaints are routinely maintained and produce to the United States all complaints that WFC has received from non-employees that may involve a person with a possible disability, including but not limited to complaints alleging problems in accessing its telephone services by or on behalf of an individual who is deaf, is hard of hearing, or has a speech impairment.
- Potential eligible persons shall have until one hundred fifty (150) days after the date of the last publication of a newspaper notice pursuant to Paragraph 48 of this Agreement ("Claims Period") within which to contact the United States to assert any claims in connection with this Agreement. 2
- The United States shall determine, in its sole discretion: (1) who is an Eligible Person; and (2) an appropriate amount of monetary relief to be paid by WFC to each such Eligible Person in accordance with Paragraph 55. WFC shall not receive copies of declarations or any other documents or information from the United States relating to the basis or methodology of the United States' determinations. WFC shall make payments to Eligible Persons as directed by the United States unless WFC can provide satisfactory evidence within thirty (30) days of receiving such direction that the Eligible Person has executed a valid and legally binding document releasing WFC from the claim.
- Based on information received through the procedures set out in Paragraphs 47 through 55 and 57 of this Agreement, complaints provided to the United States by WFC pursuant to Paragraph 50, and complaints already in the possession of the United States as of the Effective Date, the United States may notify WFC of potential violations of Title III of the ADA relating to events taking place prior to the Effective Date. Upon such notification, WFC shall promptly provide the United States with any information or documentation requested by the United States for the purpose of determining whether an actual violation of the ADA has occurred. Subject to Paragraphs 18 and 54, WFC agrees to take any corrective action(s) the United States determines is necessary for WFC to comply with Title III of the ADA with respect to (a) the physical accessibility of its Retail Stores, and/or (b) operational issues covered under this Agreement. Notifications regarding physical accessibility concerns will begin two hundred and forty (240) days after the Effective Date. Such corrective action(s) shall be taken within ninety (90) days of such notification, unless WFC submits to the United States satisfactory documentation justifying a longer time period and a plan for how and when the violations will be remedied. The United States shall review such justification and plan and approve or modify it as necessary. WFC shall implement the plan, remedy the violation, and provide satisfactory evidence of such actions to the United States. Should the final plan provide for a completion of the remedy outside the term of this Agreement, the Enforcement provisions of this Agreement will be extended beyond the term of this Agreement to permit the United States to enforce the required corrective action(s).
- In the event there is any disagreement between the Parties regarding the corrective action(s) determined to be necessary pursuant to Paragraph 53 or its/their timing, the following procedures shall be used:
- For issues involving physical access to facilities, the disputed issue shall be referred to an independent architectural consultant ("Neutral Architect") who shall have the authority to make a binding determination regarding whether modifications are required to achieve ADA compliance and, if so, the manner and timing in which such modifications shall be made. The Neutral Architect shall decide in his/her sole discretion what information is necessary to make such determinations, including documentation and whether it is necessary to visit the site. WFC agrees to provide such information, documentation, and access to the facilities in question in accordance with the Neutral Architect's instruction. WFC shall be solely responsible for all costs and expenses associated with the work of the Neutral Architect pursuant to this Agreement, including travel. The United States shall bear no responsibility for such costs and expenses. The Neutral Architect was mutually agreed upon by the Parties prior to the Effective Date. The Parties have also agreed upon an alternative Neutral Architect who will perform such functions in event the Neutral Architect shall be unavailable to perform them with reasonable promptness. Any written agreement between WFC and the Neutral Architect or alternate shall be submitted to the United States for reasonable review and approval.
- ADA issues not involving physical access to facilities will be subject to the provisions of Paragraph 63.
- For a period of up to five (5) years following the Effective Date, the United States shall periodically notify WFC in writing of its determinations regarding Eligible Persons who are to receive payment and the amount of payments thereto as provided in Paragraph 52. The payment process shall be as follows:
- From time to time, the United States shall send to WFC a list containing the names and addresses of Eligible Persons who are to receive payment and the amount to be paid to each individual. Such amounts will not include payment for physical injury or medical expenses related thereto. If WFC wishes to assert that any persons on the list are not entitled to payment because they have already executed a valid and legally binding document releasing WFC from an ADA Title III claim, WFC shall so notify the United States within thirty (30) days after receiving a list on which any such person is named and provide the United States with a copy of the document and any other supporting information upon which WFC bases its assertion. WFC will provide the United States with any additional information sought to determine whether or not an ADA Title III claim is subject to a legally binding release of claims. Based on the information provided by WFC relating to any alleged release of claims, the United States shall determine whether or not an ADA Title III claim has been released. If the United States determines that a claim has not been released, it will so notify WFC, and WFC will make payment to the individual determined to be entitled to payment in accordance with instructions provided by the United States within ten (10) days after such notification that the claim has not been released.
- Within thirty (30) days after receiving any such written notification, WFC shall make payments in accordance with these instructions by: (1) if an individual receiving payment consents and has completed the requisite written authorization, making an electronic funds transfer to the individual's account at a financial institution, or (2) where an individual does not consent to an electronic funds transfer or provide the requisite written authorization, delivering to counsel for the United States checks to the Eligible Persons payable as directed by the United States. The United States' written notifications to WFC, which shall be sent to WFC by Federal Express to the address provided in Paragraph 56 below, shall be accompanied by an original release of claims executed by the payee (substantially equivalent to the form attached as Exhibit D) and a W-9 or other appropriate Internal Revenue Service form completed by the payee. In the event an Eligible Person who is to receive payment loses a check or does not receive a check or electronic funds transfer issued to the person by WFC as a payment of monetary relief, WFC shall, upon verification that the check was not presented for payment or the funds transfer failed, re-issue the payment as a check or, in appropriate circumstances, as an electronic funds transfer within ten (10) business days after the receipt of written instructions by the United States.
- All notices to WFC shall be sent to:
Thomas O. Jacob
Office of General Counsel
Wells Fargo & Co.
45 Fremont Street
San Francisco, CA 94105
- The United States will notify WFC in writing when all payments of monetary relief to Eligible Persons required pursuant to this Agreement have been made.
- In addition to the monetary relief to complainants, within thirty (30) days after the Effective Date, as an affirmation of its commitment to advancing the interests of individuals with disabilities, WFC shall pay a total of One Million Dollars ($1,000,000) to nonprofit organization(s) acceptable to the United States as a charitable donation, to be used for the purpose of assisting veterans with disabilities resulting from injuries sustained while serving in Iraq or Afghanistan to live independently in the community.
- The ADA also authorizes the Attorney General of the United States to seek a civil penalty as a result of violations of the ADA. 42 U.S.C. § 12188(b)(2)(C); 28 C.F.R. § 36.504(a)(3). Within fifteen (15) days after the Effective Date, WFC will issue a check in the amount of Fifty-Five Thousand Dollars ($55,000) payable to the United States Treasury as a civil penalty. Counsel for WFC will deliver the check to counsel for the United States.
Maintaining Records and Reporting
- WFC shall maintain and preserve records relating to compliance and non-compliance with this Agreement. Such records shall include, but not be limited to, the following records of the provision or denial of the following appropriate auxiliary aids and services: Qualified sign language and oral interpreters, note takers, computer-aided real time transcription services ("CART"), assistive listening devices/systems, audio recordings, Braille materials, large print materials, and tactile materials (e.g., raised line checks and check writing templates). WFC shall provide such records to the United States within thirty (30) business days upon request. Upon reasonable notice to WFC, WFC shall permit representatives of the United States to inspect and copy any of WFC's records or inspect any of WFC's Retail Stores bearing on compliance with this Agreement at any and all reasonable and mutually agreed-upon times, provided, however, that such agreement is not unreasonably withheld. The United States shall endeavor to minimize any inconvenience to WFC from such inspections.
- Within one hundred and eighty (180) days, three hundred and sixty five (365) days, and six hundred and forty (640) days after the Effective Date, WFC will submit a written report to the United States describing all actions relating to compliance with this Agreement and any Agreement obligations WFC failed to fulfill, including a summary of actions taken to implement the Policy.
- If at any time WFC desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the United States in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the United States to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the United States, which approval shall not be unreasonably withheld or delayed.
- The United States may review compliance with this Agreement at any time, including, but not limited to, testing of any WFC services, locations, or facilities. If the United States believes that WFC has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement from the United States for a modification of the relevant terms, the United States will so notify WFC in writing, and it will attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within sixty (60) days of the date it provides notice to WFC, it may institute a civil action in federal court to enforce the terms of this Agreement or Title III and may, in such action, seek any relief available under law.
- Failure by the United States to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the United States' right to enforce other deadlines and provisions of this Agreement.
- If any provision of this Agreement is determined by any court to be unenforceable, the other provisions of this Agreement shall nonetheless remain in full force and effect.
- All materials sent to the United States pursuant to this Agreement shall be sent to the following address by common carrier Federal Express, delivery prepaid: Disability Rights Section, Attn: Jeanine Worden, Deputy Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue, N.W., Washington, D.C. 20005. The envelope and cover letter shall include a subject line referencing Wells Fargo and DJ# 202-11-239.
- A copy of this Agreement, including Exhibits, will be made available to any person by WFC or the United States on request.
- All WFC obligations under this Agreement shall become effective immediately upon the Effective Date, unless otherwise specified herein, and shall continue throughout its term.
- This Agreement, including exhibits, shall be binding on WFC.
- In the event WFC seeks to transfer or assign all or part of its interest in any Retail Store for which corrective actions are required under Paragraphs 53 and/or 54, and the successor or assignee intends on carrying on the same or similar (i.e., banking or financial services) use of the facility, WFC shall either:
- Prior to the assignment or transfer, make all modifications to the Retail Store that are required pursuant to Paragraphs 53 and 54 of this Agreement, or
- As a condition of sale, obtain the written agreement of the successor or assignee to make all modifications to the Retail Store that are required pursuant to Paragraphs 53 and 54 of this Agreement.
- This Agreement, including Exhibits, constitutes the entire agreement between the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either of the Parties or agents of either of the Parties, that is not contained in this written Agreement, will be enforceable. This Agreement (and procedures set forth herein) shall resolve all complaints under Title III of the ADA based on events taking place before the Effective Date except with respect to claims for injunctive relief relating to physical accessibility of Facilities that are not Retail Stores as defined in this Agreement. This Agreement does not purport to resolve, remedy, or affect the United States' right to pursue (1) any ADA complaints under Title III of the ADA based on events taking place on or after the Effective Date or (2) any existing or potential violations of Title I of the ADA or any other federal laws. Notwithstanding Paragraphs 47 through 55 and 57, the Parties may, by mutual agreement, process any ADA Title III complaints involving WFC's actions or inactions occurring on or after the Effective Date pursuant to Paragraphs 47 through 55 and 57 of this Agreement. This Agreement does not affect WFC's continuing responsibility to comply with all aspects of the ADA and other federal laws.
- WFC's obligations under this Agreement will remain in effect for a period of two (2) years after the Effective Date except: (1) the United States shall have a period of five (5) years to process all claims for payment of monetary relief pursuant to Paragraphs 47 through 55 and 57, (2) WFC shall be required to pay such claims pursuant to Paragraphs 47 through 55 and 57 for a period of five (5) years and two (2) months, (3) all provisions of this Agreement required for the United States to enforce WFC's obligations to make such payments shall remain in full force and effect, as necessary, until the United States has confirmed that all actions required pursuant to Paragraphs 47 through 55 and 57 through 58 have occurred; and (4) as provided in Paragraph 53.
- The person signing this Agreement for WFC represents that he or she is authorized to bind WFC to this Agreement.
- The effective date of this Agreement ("Effective Date") is the date of the last signature below. The Agreement may be executed in counterparts.
|FOR WELLS FARGO COMPANY||FOR THE UNITED STATES:|
THOMAS O. JACOB
Office of General Counsel
Wells Fargo & Co.
45 Fremont Street
San Francisco, CA 94105
|THOMAS E. PEREZ
Assistant Attorney General
SAMUEL R. BAGENSTOS
Principal Deputy Assistant Attorney General
JOHN L. WODATCH
Acting Deputy Assistant Attorney General
Civil Rights Division
ALLISON J. NICHOL
Disability Rights Section
CLAUDIA RUSS ANDERSON
Executive Vice President
Wells Fargo & Co.
90 S. 7th Street
Minneapolis, MN 55402
Date:___May 26, 2011______
JEANINE M. WORDEN
Disability Rights Section
JENNIFER K. MCDANNELL
Disability Rights Section
Civil Rights Division
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 307-0663 (phone)
(202) 514-7821 (fax)
Date: ______May 31, 2011_____
United States Attorney
Northern District of California
ILA C. DEISS
Assistant United States Attorney
450 Golden Gate Avenue
San Francisco, California 94102
Date: ______May 27, 2011_____
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last updated August 2, 2012