Stopping The ADA Trolls: Carlson/Lynch Should Sue Itself

Comments

1. Kelly Pierce says

   March 12, 2016 at 9:58 pm

   On March 7, I filed the following objections to the Redbox settlement with the U.S. District Court in Pittsburgh. As Chris mentioned, the Carlson Lynch firm is behind the Redbox class action.

   To:
   Clerk of the Court
   U.S. District Court
   700 Grant Street
   Pittsburgh, PA 15219

   Case:
   Jahoda, et al. v. Redbox Automated Retail,
   Case No. 2:14-cv-01278-LPL

   Objector:
   Kelly Josef Pierce
   Chicago, IL 60657
   (312) 857-4791
   KKellyP@Gmail.com

   Objection to Proposed Class Action Settlement

   The objector, Kelly Pierce, is blind and lives about a block and a half, or less than one-quarter mile,
   from a Redbox kiosk that he wants to use independently. He has assisted in the development of and
   has evaluated audio interfaces for more than a decade and a half for automated teller machines,
   direct-recording electronic voting machines, a taxicab fare machine, and an automated transit stop-
   calling system. The projects included the audio interfaces for Bank One, J.P Morgan-Chase,
   Citibank, LaSalle Bank, American Express and Cardtronics. The ATM audio interface currently used
   by PNC Bank was obtained from First Data Corporation who used the interface Kelly Pierce helped
   develop with Bank One. Kelly Pierce was a claimant in structured legal negotiations regarding ATM
   accessibility with Bank One, American Express and LaSalle Bank. He was an objector to a proposed
   class action settlement with PNC Bank that would have used cellular telephones for ATM access
   instead of talking ATMs. In addition, he helped to fully revise and redevelop the audio script and
   interface used by Sequoia Voting Systems, making the company’s Edge line of machines one of the
   most accessible to people with disabilities. This transformation to a highly effective interface from
   one unusable by people with disabilities led to an invitation to speak in Congress before the House
   Committee on Administration in 2007 on the capacity for disability access improvements to the
   nation’s electronic voting machines. Further, Pierce aided the Chicago Transit Authority in
   evaluating a prototype of an automated stop announcement system being deployed on the agency’s
   buses. The written report compiled from feedback from multiple riders with disabilities included 17
   recommendations, nearly all of which were eventually adopted by the Authority. In 2016, Pierce
   assisted a joint venture of Dejavoo Systems and OnProcessing in creating an accessible taxicab fare
   machine. The touch screen interface is the first to vocalize real time taxi location information. He
   has served on the Technology Watch committee of the National Council on Disability, a federal
   agency that plans and evaluates disability policy and programs.

   Summary

   This filing begins with the 40-year history of assistive technology for the blind, showing how
   accessible technology is available in the voting booth, at the bank and at the post office. The
   developments led to companies like Redbox being able to deploy interactive audio interfaces across
   entire regions with thousands of machines easily and affordably. I then describe why the relief in the
   proposed settlement is inadequate. The settlement would lower the standard of accessibility for all
   kiosks, increase the likelihood of crime victimization by the blind and create accessibility problems
   when multiple machines are at a location. I continue with the problems of using human assistance
   as a primary access method. The objections then examine the vague and undefined accessibility
   approaches possible under the agreement. One access possibility could include requiring blind
   people to use cell phones at the kiosks to obtain accessibility assistance from Redbox customer
   service. After the limitations of cellular telephones as an accessibility method are examined, I charge
   that both requiring someone to use a cell phone or to bring a headset with a microphone is forcing
   blind people to pay for accessible services, something that is not allowed under the ADA. I then
   describe how both class counsel and the class representatives are inadequate and must be replaced
   for blind people to obtain justice. The objections finish by questioning the lack of an end date to
   the agreement, raising the possibility of an interpretation that the court would have indefinite
   jurisdiction of Redbox’s accessibility for blind people.

   Background

   I wish to inform the court how the technology that makes Redbox kiosks fully accessible in
   California has evolved. This year marks the fortieth anniversary of the reading machine. On January
   13, 1976, Walter Cronkite awakened the world with the news that a revolution had begun in how the
   blind access information. Ray Kurzweil and the national federation of the Blind demonstrated the
   first working prototype of a reading machine that converted printed text into synthetic speech.
   Blind attorney Jim Gashel was at the controls when the CBS news anchorman signed off his
   broadcast with the reading machine saying his famous signature line in synthetic speech “And that’s
   the way it was, January, 13, 1976.”
   The machine and its constituent technologies that would deliver the wild dream of information
   independence to the blind was achieved through hard work, significant involvement by blind end
   users and a passionate organizing vision. These are the same skills used and needed today by blind
   end users in mastering current technology. None of this is present in the proposed class action
   access approach to Redbox kiosks.
   The big bang in information access started in 1975 when Ray Kurzweil found himself sitting next to
   Jim Gashel on an airplane flight. Gashel was the Governmental Relations Director of the National
   Federation of the Blind who “explained to me that the only real handicap that he experienced was
   his inability to read ordinary printed material, Kurzweil recalled in his 1999 book The Age of Spiritual
   Machines. Kurzweil had developed computer software the year before that could recognize printed
   material and turn it into computer text. Gashel was intrigued and introduced Kurzweil to the
   radically visionary blind leader Jernigan, who was the president of the National Federation of the
   Blind and director of the Iowa Commission for the Blind. In 1975, Kenneth Jernigan was riding
   high with national acclaim, demonstrated results, and an organized blind membership that
   approached 50,000.
   Kenneth Jernigan came to Iowa in the early 1960s to improve the blindness service system there.
   He immediately applied his philosophy of self-reliance, independence, self-respect, and pride of
   blind people. He was one of the first disability leaders to identify his concerns as a civil rights issue
   and believed the blindness problem was one of poor societal attitudes, low expectations, and
   blindness service agencies that created and perpetuated dependency. In slightly more than a decade
   the blind furniture maker from Tennessee transformed Iowa to the place with the best blind school,
   the best orientation center, and the most employed blind people in the world. In the 1960s and
   1970s, there was no better place on the planet for a blind person to be.
   There was one significant problem in 1975 that still eluded Kenneth Jernigan, now the most
   powerful blind man in America: Neither he, nor any blind person could read print independently.
   Blind people relied heavily on people who read to them, either in their homes or on audiocassettes.
   Braille was not any better, as it was produced by a limited number of sighted transcribers who
   underwent weeks of training. No matter how good the agency, how high the expectations, or
   positive the attitudes, print remained a major barrier. Ray Kurzweil’s idea, which had been turned
   down by many funders, could transform the lives of the blind, but it was a bit of a longshot. While
   highly talented, Kurzweil had limited experience, graduating five years earlier with a bachelor’s
   degree from the Massachusetts Institute of Technology in 1970.
   Intel had just perfected a microprocessor that could run a whole computer in 1974. By January
   1975, the world’s first personal computer went on sale, with computer magazines picturing the Altair
   8800 on their front covers. The Altair, created by a retired Air Force General in the desert near the
   airport in Albuquerque, New Mexico, was not even a computer. It was a computer kit. The end
   user had to build it himself and then it usually did not work. When it did, it had no keyboard or
   monitor, or input jacks for anything. Everything was entered by switches.
   Not only had computers not been invented, but neither had the three constituent technologies of
   speech synthesis, flat-bed scanning, and optical character recognition that would comprise the
   reading machine and later be the building blocks of access for the blind to the information society.
   These technologies had to be rapidly developed to make the machine viable.
   Impossible, however, was not in the vocabulary of the charismatic figure that organized a succession
   of Iowa governors, dozens of business leaders, hundreds of state legislators, and thousands of blind
   persons to turn the vision of independence and equality for the blind into reality. Kenneth Jernigan
   knew the creativity and resourcefulness of blind people. They, through the Federation, could create
   the King Kong of machines for the blind, if they had the confidence in themselves and set their
   expectations high enough. It could have the impact that landing a man on the moon did six years
   earlier—creating and spinning off new technologies and opportunities.
   Kenneth Jernigan then made a proposal to Ray Kurzweil that would be the model of technology
   design, manufacture, policy, and end user selection for the blind and later for the larger disability
   community in the decades to come. His Federation would organize the funding effort and lend his
   and the Federation’s credibility to the project only if the NFB, specifically its blind engineers would
   be involved in the design of the reading machine and its user interface and controls. Further, this
   group would help evaluate and refine all aspects of the product’s operation and various functions.
   These blind engineers would be equal partners throughout the entire process. Ray Kurzweil had not
   expected the request, but agreed reluctantly as he had exhausted all other leads and was at the end of
   the road. Jim Gashel coordinated the blind engineers and began working until midnight throughout
   1975 at his Washington office drafting dozens of funding proposals needed to raise the $350,000 for
   the project, a sizeable sum in those days.
   In the June, 1977 Braille Monitor, the Federation’s monthly publication, a leader noted, “What the
   press often missed, but which is an essential point to the blind, is that the Kurzweil machine has
   been developed with the active involvement of the blind. Its usability has increased immensely as a
   result of this immediate and direct feedback from blind persons associated with the project. It was
   this involvement, for example, which led to the realization that straight reading was nowhere near
   sufficient, that the ability to stop, back up, spell, and pronounce punctuation were necessary to
   scholarly work, and many other kinds of work. It was discovered that the machine could not read
   photocopies a major problem since at least half of business reading is copied material. The machine
   can now read photocopies. A drawback to other print-translation devices, developed without this
   active consumer involvement, has been their limited number of uses. As hundreds of blind people
   put in hours with this machine, its capabilities will undoubtedly expand greatly.”
   By the end of 1977, the machine recognized more than 200 type fonts. In 2010, the Internet Archive
   announced that more than a million books it had scanned with software based on Ray Kurzweil’s
   inventions at 20 centers in five countries were now available free of charge to the blind, becoming
   the largest single resource of accessible books anywhere in the world. That single reading machine
   that sold for what was the equivalent of a small house 40 years ago has led to a digital revolution that
   has transformed the lives of blind people. The access barriers of 40 years ago have narrowed
   considerably and will continue to narrow if the proposed settlement is rejected.
   By the mid-to-late 1990s, text based computer operating systems and applications were accessible to
   the blind. Leaders sought access to public terminals, particularly at banks. For nearly the last 20
   years, accessible electronic information processing devices that are stand-alone terminals have been
   deployed in public. The first terminals, or kiosks, made accessible were automatic teller machines.
   The world’s first talking ATM for the blind was an NCR machine unveiled by the Royal Bank of
   Canada on October 22, 1997 at a bank branch on the corner of Bank Street and Queen Street in
   Ottawa, Ontario. Two years later in October 1999, the first talking ATM in the United States was
   installed in San Francisco’s city hall by the San Francisco Federal Credit Union. Both machines
   played computer sound files of human recorded speech for every screen on the machine. Also in
   1999, the California Council of the Blind announced that Wells Fargo agreed to a widespread
   deployment of talking ATMs. The bank agreed to install a talking ATM at every location in
   California, totaling more than 1500 locations, within four years. Previously, the Royal Bank of
   Canada installed only 12 talking ATMs in two years with the machines being in major Canadian
   cities. Another significant advancement occurred in 1999. Citibank began a pilot test of five talking
   ATMs at bank branches in California. The machines represented another breakthrough for
   accessible technology. They featured a touch screen interface that had no physical keys or tactile
   controls. It was the first instance of an accessible touch screen interface and a decade before Apple,
   the world’s largest technology company, modified its iconic iPhone touch screen to be accessible to
   the blind with a screen reader it called VoiceOver. Within two years of the first talking ATM being
   installed in the United States, more than 1,000 had been installed nationwide in nearly half the states
   with more than half of the 10 largest American banks installing at least one talking ATM. Lawyers
   representing the California Council of the Blind reached negotiated legal settlements that required
   the banks to demonstrate the developing technology to blind plaintiffs who would then offer
   substantial feedback, similar to the development of the Kurzweil Reading Machine.
   Today, talking ATMs are commonplace with every location of most banks having a talking ATM.
   Large deployers that have committed to talking ATMs have received awards from blindness
   organizations, including J.P. Morgan-Chase and Wells Fargo. Bank of America produced a
   television commercial with a talking ATM highlighting its ingenuity and higher standards.
   As major banks began deploying thousands of talking ATMs, Triton Systems of Long Beach,
   Mississippi introduced in 2002 audio access for the blind as standard equipment on all the ATMs it
   produces. Triton machines are used widely at non-bank locations, such as taverns, nightclubs,
   convenience stores, airports, and hotels. Triton’s access included the world’s least expensive ATM,
   costing less than $3,000. Triton’s efforts represented an accessibility breakthrough for the blind as
   now low-cost machines installed throughout the community were now accessible by default at no
   extra charge to the purchaser, typically a small business owner.
   Later in 2002, Congress passed the Help America Vote Act, which required one accessible voting
   machine in every polling place. The law arose following a chaotic Presidential election in Florida
   that featured inconsistent methods of election administration, outdated and poorly maintained
   election equipment, more than 10,000 voters who failed to cast a vote for President, a confusing
   ballot design and more than 2,600 elderly voters who voted for a third party candidate by mistake,
   according to the October 2004 issue of Vanity Fair in “The Path to Florida.” Starting in 2006,
   polling places now feature an interactive electronic terminal with an audio interface that enables a
   blind person to cast a vote privately and independently without sighted assistance.
   The march to equality for the blind with self-service technology continued when the United States
   Postal Service rolled out Automated Postal Center kiosks across America in 2004. Blind people can
   access the functions through an audio interface similar to that of a talking ATM. Customers can buy
   postage, sheets of stamps, weigh and determine the rate for envelopes and packages, add insurance,
   delivery confirmation service, or certified mail service, and renew a post office box. For the first
   time, blind people could use post office services accessibly early in the morning and late at night. In
   December 2004, the United States Architectural and Transportation Barriers Compliance Board
   issued final accessible design standards that updated accessibility standards created in 1991. The
   revised standards for accessible design included explicit guidelines for a fully interactive audio
   interface for ATMs and fare machines. The United States Department of Justice adopted the
   accessibility standards for the Americans with Disabilities Act in 2010 and the standards took effect
   in 2012.
   In 2014, the DVD rental company Redbox and the San Francisco Lighthouse for the Blind settled a
   class action lawsuit that Requires Redbox to develop an audio interface and install a tactile keypad
   and headphone jack to Every Redbox kiosk in California. Along with the hardware upgrades,
   “Redbox will add text-to-speech output, via audio through the headphone jack, to convey the text
   and controls necessary to browse, rent, pay for, pick-up, and return media, including all textual
   synopsis of any media, and to present any sales or discounts offered by Redbox with respect to
   media that Redbox makes available to sighted customers at that kiosk using its visual interface,”
   section 7.3 of the settlement states. The agreement in Lighthouse for the Blind and Visually
   Impaired, et al., v. Redbox Automated Retail, LLC, et al., Case No. C12-00195 would be the first
   accessible self-service kiosk outside the financial industry or a government or government related
   service.
   Relief is Inadequate
   Rule 23 Part E, subpart (2) of the Federal Rules of Civil Procedure requires settlements to be “fair,
   reasonable, and adequate.” As will be described below, the agreement fails to satisfy each of these
   three measures.
   The agreement can hardly be considered fair when viewed in the context of all blind people in the
   United States. In Lighthouse for the Blind and Visually Impaired, et al., v. Redbox Automated
   Retail, LLC, et Al., Case No. C12-00195, plaintiffs obtained a commitment from Redbox to equip
   each kiosk with audio functionality and a keypad for all functions for blind people in California, as
   detailed in the previous section. If this agreement is approved, the court will sanction two
   accessibility standards for self-service kiosks in the United States: one for California and one for
   everywhere else. Approval of this settlement will have a catastrophic impact for hundreds of
   thousands of blind people for decades in the future. Other courts may likely accept that simply
   installing an audio jack and telling blind people to essentially buy a cell phone, subscribe to a cellular
   telephone service to talk to someone thousands of miles away is full and independent access. It is
   not and the court must reject the agreement to maintain a single standard of accessibility across
   America. Blind people in 1975 were not satisfied to have sighted people read to them and built a
   fantastic machine that virtually eliminated the need for human readers. I am absolutely not satisfied
   that in 2016 my independence will be served having a sighted person read to me information on the
   kiosk screen.
   Nothing in the settlement document or related material asserts that the full functionality of Redbox
   kiosks called for in the California settlement is either technically infeasible or meets the level of an
   undue financial burden as described in the implementing regulations of the Americans with
   Disabilities Act. In an electronic mail message in January, plaintiff’s counsel in the California case,
   Stewart Seaborn of Disability rights Advocates, reported that the blind plaintiffs have tested a tactile
   keyboard and expect to evaluate a prototype with full accessibility that uses an audio interface by the
   end of 2016. Further, nothing in the settlement explains Redbox’s inability to provide full
   independent usability offered at Redbox kiosks in the California settlement with this agreement. If
   Redbox can provide a kiosk with a fully interactive audio interface throughout California, it should
   provide this level of access in Chicago, where I live, and across America. This access approach is
   available anytime anywhere with a consistent level of quality and reliability.
   Another reason why relief is inadequate and the settlement needs to be rejected is because the
   settlement modifies only one kiosk at a location. If a kiosk location has both indoor and outdoor
   kiosks, Redbox could only modify the outdoor kiosk, preventing me from using it in January during
   a cold Chicago winter. Similarly, if the outdoor kiosk is available 24 hours a day and the indoor
   kiosk at an address is available only during business hours, Redbox has the discretion of modifying
   only the indoor kiosk, preventing me and other blind people from renting a movie during evening
   hours. If multiple kiosks are at a large facility, such as a shopping mall, train station or airport,
   Redbox is only required under the settlement to modify only one kiosk although it would be difficult
   or impossible for a blind person to locate a distant kiosk at such a facility. Simply because an airport
   or shopping mall has a single street address does not mean multiple kiosks are near each other. The
   kiosks could be placed thousands of feet from each other.
   Crime Victimization
   The proposed settlement must be rejected because it would expose the customer to a greater
   probability of physical harm and robbery. It requires blind customers to speak out loud over a
   telephone or headset microphone what they are doing and that they are using a payment method to
   rent a DVD. This is untenable. It advertises to any would-be thief: “Here is a blind person with
   enough money to enjoy home entertainment, a coveted iPhone that can be resold in hours and a
   DVD—who will not even see me if I just move quickly to take it.” Given the alternative of a kiosk-
   based audio interface which does not pose such risks to customers, it is highly outrageous to settle
   such risks on an entire class.
   Problems with Human Assisted Reading
   I became blind in 1985. This was a time before widespread adoption of information technology and
   digitized information. I am unable to access printed information on paper, regardless of any kind of
   magnification aide used. I relied upon human readers extensively through college and in community
   life before rapid advances in information and communications technology virtually eliminated my
   need for human assisted reading. The readers were both in person and recorded on cassette tape.
   Recruiting readers was challenging, both on a college campus and in my Chicago neighborhood
   where most people have a college degree or attended some college classes. Most human readers
   become bored easily. Few have the oral communications skills or the intellect to speak for minutes
   on end without errors or interruptions to their reading. Most people become impatient and annoyed
   when asked to repeat information or lists of information. No matter how dedicated or sincere, few
   human readers have the reading skills, patience and dedication to clearly and precisely read printed
   material accurately and completely to blind people. One of the benefits of the digital revolution is
   the substitution of human readers with synthetic speech that never becomes bored, annoyed or
   irritated. Further, today’s speech synthesis sounds like human speech of a native English speaker.
   The settlement agreement substitutes reliable, consistent and the proven accessibility of synthetic or
   professionally recorded speech with human assistance from a disembodied voice miles away,
   possibly on the other side of the world, from someone who has limited English-speaking skills. The
   agreement does not prevent Redbox from using offshore customer service representatives with
   limited English-speaking skills.
   Further, the human assistance proposed in the agreement is not available whenever Redbox kiosks
   are available. The nearest Redbox kiosk to my home is outside a 7-Eleven convenience store about
   a block and a half away. It is available 24 hours a day. Currently, Redbox customer service is
   available only from 6:00 a.m. to midnight seven days a week. These hours of operation may be
   reduced in the future as the video rental business declines with consumers who opt for video
   streaming services. Redbox parent Outerwall, Inc., reported fourth quarter results February 4. The
   company said the number of movie rentals declined by more than 24 percent in the fourth quarter
   of 2015 compared to the same quarter in 2014. The Chief Executive Officer of Outerwall who is
   also the interim Redbox President, Eric Prusch, said in a statement that “Redbox is a compelling
   business, providing new movie releases to millions of loyal consumers at a great value. We will
   manage the business for profitability and cash flow, and we will continue our focus on expense
   management, operational efficiencies and network optimization.” Managing expenses and wringing
   efficiencies out of operations could likely include reducing the time customer service workers are
   available to customers by telephone. Additionally, the agreement does not require customer service
   workers to be available immediately or within a certain period of time of receiving a call. Under the
   terms of the agreement, I or any blind person in a northern climate could wait on hold for 30
   minutes or more outside at a Redbox kiosk in sub-freezing weather in January for human assistance.
   This could easily happen after customer service is reduced to trim operating costs. Shares in Redbox
   parent Outerwall fell by more than 20 percent the day after the company reported fourth quarter
   results and the stock price is at its lowest level in six years.
   Accessibility Problems with Proposed Access Approach
   Even if the court viewed human assistance with a Redbox representative as independent access
   equal or similar to an audio interface at a self-service terminal, the approach proposed is fraught
   with many problems that cannot be corrected.
   In a conversation with Stephanie Golden on behalf of Benjamin Sweet of the law firm of Carlson
   Lynch Sweet and Kilpela that serves as class counsel, attorney Golden disclosed that the access
   approach described in the proposed agreement has not been tested at any Redbox terminal to
   determine if the technology even works, let alone to know if it is an effective means of access for
   blind people. If class representatives Robert Jahoda and April Nguyen or any blind person in the
   world have never used this access approach, the court would take a big risk by approving an
   accessibility approach to the blind when self-service kiosks that are accessible to the blind are widely
   used throughout America in multiple industries. The court must reject the agreement because the
   proposed accessibility resolution has never been shown to work while fully accessible kiosks with
   built-in audio interfaces are used by blind people every day to vote, buy stamps, and conduct
   banking transactions.
   Further, the court must reject the agreement because its terms allow Redbox to do next to nothing
   and call it independent access. In a February 2 conversation with class counsel, it was explained that
   the headphone jack will support both audio output and audio input, similar to using the headphone
   jack on a smart phone with a headphone and microphone attached to the headphone cord.
   However, Section 4.18 of the settlement agreement states that “Redbox shall modify at least one of
   its Kiosks at each retail location where a Kiosk is in place as of the date of the entry of Judgment in
   this matter by adding a headphone jack to the Kiosk, and a tactile symbol indicating that the
   headphone jack is available. By making the modifications, Redbox shall ensure that when a legally
   blind consumer plugs a standard size headset into the headphone jack, that consumer will be
   provided with audio instructions regarding how to access a specially trained Redbox customer
   service representative who will then assist the consumer with a rental or return at the Kiosk.”
   Because this wording is so vague and broad, many access possibilities can be created by Redbox,
   some amounting to virtually no accessibility. The settlement does not specify the kind of
   headphone jack to be used. A visit to a major retailer found nearly all audio-visual electronic devices
   had output only headphone jacks. The vague language in the settlement agreement allows Redbox to
   use an output only headphone jack with the machine voicing a telephone number for blind people
   to call using their own cellular telephone for assistance. This approach, allowed with the vague and
   expansive language above, would likely be less expensive than an interactive audio system at the
   terminal.
   Problems with Kiosk Accessibility with Cellular Telephones
   As mentioned, the vague settlement language could enable Redbox the possibility to install a
   headphone jack for the purpose of telling blind people in a 30-second recording to call the company
   using a cell phone for assistance. Cellular telephones for the purpose of accessing self-service
   terminals are fraught with problems. First, a Redbox kiosk might not be in the coverage area of the
   cellular provider. Even if a kiosk is in the coverage area of a provider, someone could encounter
   reception problems at a specific location. The kiosk may be inside a building where cellular signals
   do not penetrate. The kiosk could also be placed in a location outside where the building physically
   blocks wireless signals from a distant transmission tower. When a cell phone connection is
   established, the voice can be garbled and unintelligible. Wireless telephone calls have a much lower
   audio quality than wired ones. Further, blind people without cell phones would not be able to rent a
   DVD from Redbox altogether. It is apparent that neither Redbox nor the plaintiffs have
   determined the reception capacity at all or a substantial number of Redbox kiosk locations. No
   engineering or transmission reception studies have been conducted whatsoever.
   Charging for Access
   The proposed agreement must be rejected because it imposes hidden surcharges for accessibility, in
   violation of the ADA. Cell phone service to call Redbox customer service as would be allowed in the
   vaguely worded agreement costs money. Used cellular phones frequently cost between $50 to $100,
   a review in early February found of used iPhones and other accessible phones recommended by
   wireless giant AT&T on the eBay online sales platform. The least expensive cellular service from
   the four largest national cellular operators costs about $10 a month from a virtual network operator
   on the T-Mobile network, a cost comparison performed by MVNO News found. People outside
   the T-Mobile coverage area but in the coverage area of another provider, such as Verizon, would
   pay several times more. Kiosks with an audio interface, like those that will be installed at Redbox
   locations in California, do not impose this additional accessibility expense to blind people to rent a
   DVD.
   Requiring blind people to buy a cell phone and subscribe to a wireless carrier is a burdensome
   expectation that amounts to charging blind persons an accessibility surcharge to rent a seven-dollar
   DVD. Section 36.301(c) of Title III of the Americans with Disabilities Act states that “a public
   accommodation may not impose a surcharge on a particular individual with a disability or any group
   of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids,
   barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices,
   or procedures, that are required to provide that individual or group with the nondiscriminatory
   treatment required by the Act or this part.” Requiring me and other blind people to use a cell phone
   for access to Redbox kiosks, as this agreement ostensibly does, amounts to a permanent and
   ongoing accessibility surcharge prohibited by the ADA. Even if Redbox magically agreed to provide
   a headphone jack with microphone capability, the agreement excludes Redbox from providing or
   paying for headphones for this new system. Those without smart phones, such as Apple’s iPhone,
   will need to purchase headsets with a microphone imbedded in the cord, as blind people would
   likely not have these kind of headphones. These special headphones cost more, about $10 to $20,
   compared to headphones without microphones. The agreement forces people without cell phones
   to buy special headphones that cost several times more than the DVD they are renting, an
   accessibility surcharge.
   Class Counsel is Inadequate
   Rule 23 G (4) of the federal rules of civil procedure requires that “Class counsel must fairly and
   adequately represent the interests of the class.” As described earlier, class counsel thoroughly failed
   at representing for me and other blind people across America. Instead of obtaining a settlement
   ensuring independent and private access without fees and surcharges similar to the California case,
   class counsel drafted a sham settlement agreement for a technology access approach that is untried
   and untested anywhere on planet earth. Rather than a talking terminal with human-like speech
   synthesis, class counsel believes it is adequate for a blind person to be connected to a person who
   can hardly speak English on the other side of the world as an accommodation to an inaccessible
   Redbox kiosk. Further, class counsel seems comfortable in forcing blind people to buy pricy
   headsets simply to have access to a kiosk for a simple movie rental. For these reasons, the court
   must remove the Carlson Lynch firm as class counsel and replace the firm with a proven advocate
   for the rights of people with disabilities who has achieved meaningful settlements, such as the one in
   the California Redbox case. In short, class counsel completely and totally ignored the prevailing
   means of how blind people access self-service terminals to foist upon blind people an inferior
   approach that no one knows if it actually works for a $397,000 payday.
   This brazen greed has been typical of the behavior of class counsel in recent years. In the past few
   years alone, class counsel has served as lawyer to class Representative Robert Jahoda of Ambridge,
   Pennsylvania to create an ADA lawsuit feeding frenzy, filing nearly 70 ADA lawsuits. These include
   suing at least 20 banks for ATM access. Other suits involve website access of such firms as Brooks
   Brothers, the Hard Rock Cafe, Foot Locker and the National Basketball Association. Nearly all of
   these suits reached secret settlements not available for public inspection. (See Appendix) Many
   lawsuits were withdrawn after just a few weeks or a couple of months. An analysis by the
   Pennsylvania Record found class representative Robert Jahoda to be one of eight plaintiffs to have filed
   61 percent of the non-employment ADA lawsuits in the state during a 30-month period that
   concluded at the end of 2014. Class counsel Carlson Lynch represented Jahoda and was one of two
   firms that accounted for the barrage of lawsuits. With all these legal skirmishes, which exceed those
   by national organizations such as the National Federation of the Blind or the American Council of
   the Blind with tens of thousands of members, it would be impossible for class counsel and the class
   representative to stay focused on creating a meaningful accessibility solution for blind people across
   the United States. Filing many lawsuits and settling them quickly rakes in tremendous fees for
   lawyers but does little to me who is stripped of my right to seek redress.
   Class Representatives are Inadequate
   The class representatives are not diverse enough to be typical of other class members. The vague
   language in the settlement opens up the possibility of expecting blind people to use cell phones to
   contact Redbox. People in areas with poor cell phone reception or who cannot afford cell phone
   service are not represented. Blind people who do not own a cell phone are not represented either.
   Considering the additional costs of the proposed cell-phone access approach, blind people with
   different income levels are not represented. Also, the discrimination experienced by Robert Jahoda
   and April Nguyen may not be typical of blind people outside the Pittsburgh area. Redbox kiosks
   might be different in other states. In the interview with class counsel on February 2, class counsel
   was not aware of any state that the two class representatives visited outside Pennsylvania in the last
   18 months. Neither class counsel nor the class representatives have independently investigated
   Redbox kiosks in other states to understand if they operate similarly to those in the Pittsburgh area.
   Class representatives have relied solely on unverified assurances from Redbox. Relying on
   questionable claims from a defendant cannot be a substitute for a nationally representative class or
   an organizational class representative.
   Further, class representatives engaged in phony advocacy to make their lawyers rich. Class
   representatives did not require Redbox to modify even a single kiosk to learn if the approach
   proposed would actually work technologically, let alone be effective for blind people. They entered
   into a settlement without knowing if it actually provides access, like the Redbox California
   agreement. Class representative Robert Jahoda is familiar with access to self-service kiosks, as he
   has sued about 20 financial institutions with the help of the Carlson Lynch firm seeking installation
   of talking ATMs. Considering how badly the class representatives have served blind people, the
   court must remove class representatives from this case and replace them with a blindness
   organization. Class representatives and counsel are well aware of both national organizations of
   blind individuals, as notice to class members appeared in the monthly publications of both the
   American Council of the Blind and the National Federation of the Blind. In the joint motion for
   preliminary approval of the settlement in the California case, the parties explicitly describe the
   efforts undertaken to reach an agreement. The parties had many meetings and conference calls with
   both lawyers, plaintiffs, and technical experts on both sides along with three mediation sessions. The
   motion explains that “These negotiations were extensive because the parties needed to explore a
   variety of technical issues related to the capabilities of the software and hardware contained in
   Redbox kiosks and the feasibility of adding the accessibility features that Plaintiffs believed would be
   needed to provide them with equal access to the kiosks. “Sadly, the class representatives did not
   insist on the mediation or the technical experts needed to achieve an outcome similar to the
   California Redbox case.

   Term of Settlement

   The settlement agreement has no specified term as to when it would end. When asked about this,
   class counsel stated that the settlement does not prevent any blind person from taking legal action.
   Class counsel stated that it would be possible for a blind person or a group of blind persons to sue
   Redbox the day after the court gives its approval to the settlement to seek better access. As the
   settlement agreement gives absolutely no clarity on this issue, it is very much possible that the
   opposite could be interpreted. The settlement agreement indefinitely names the Carlson Lynch firm
   as class counsel and blind people are prohibited from suing Redbox for better access until the court
   dissolves the settlement. It is unreasonable for the court to grant approval with the possibility
   existing that blind people must have their future grievances addressed by the Carlson Lynch firm
   many year in the future if the firm would even exist then. For this additional reason, the agreement
   must be rejected.

   For all of these reasons, the court must reject the proposed settlement as inadequate and unfair to
   blind persons. Proven and time tested audio interfaces can be easily created and will be deployed for
   Redbox kiosks in California. In addition to this written filing, I plan to contest this inequitable
   settlement in person at the fairness hearing scheduled April 27 in Pittsburgh. Blind persons must
   have full equality in our information society.
   Please provide all replies and written communications in accessible electronic text, specifically
   Microsoft Word, HTML or ASCII text format.

   Appendix

   Examples of Lawsuits Filed and Quickly Settled by Robert Jahoda and Carlson Lynch

   THE HOME SAVINGS AND LOAN COMPANY OF YOUNGSTOW, OHIO filed 03/26/12
   closed 07/18/12
   1ST NATIONAL COMMUNITY BANK filed 03/28/12 closed 05/15/12
   CHARLEROI FEDERAL SAVINGS BANK filed 04/02/12 closed 04/27/12
   FIDELITY BANK, PaSB filed 04/10/12 closed 05/21/12
   COMMERCIAL BANK & TRUST OF PA filed 04/12/12 closed 07/10/12
   FIRST COMMONWEALTH BANK filed 04/13/12 closed 07/11/12
   PNC BANK, NATIONAL ASSOCIATION filed 04/16/12 closed 02/01/13
   CITIZENS BANK OF PENNYSLVANIA filed 04/17/12 closed 12/10/12
   FIRST NIAGARA BANK, N.A. filed 04/18/12 closed 07/19/12
   HUNTINGTON NATIONAL BANK filed 04/19/12 closed 08/23/12
   NORTHWEST BANCORP, INC. filed 05/04/12 closed 09/10/12
   CENTURY HERITAGE FEDERAL CREDIT UNION filed 05/09/12 closed 06/06/12
   DOLLAR BANK filed 05/15/12 closed 10/22/12
   MARS NATIONAL BANK filed 05/15/12 closed 08/07/12
   USX FEDERAL CREDIT UNION filed 05/17/12 closed 10/23/12
   APOLLO TRUST COMPANY filed 05/23/12 closed 02/19/13
   FARMERS & MERCHANTS BANK OF WESTERN PA filed 05/23/12 closed 09/06/12
   ELDERTON STATE BANK filed 05/29/12 closed 09/07/12
   STANDARD BANK PASB filed 06/08/12 closed 09/07/12
   GATEWAY BANK OF PENNSYLVANIA filed 06/18/12 closed 08/20/12
   FIFTH THIRD BANK filed 10/12/12 closed 05/02/13
   ESB BANK filed 10/16/12 closed 02/19/13
   FIRST NATIONAL BANK OF PENNSYLVANIA filed 10/17/12 closed 02/14/13
   FIRST FEDERAL SAVINGS BANK filed 10/31/12 closed 12/28/12
   WESBANCO BANK, INC filed 11/01/12 closed 02/14/13
   FRICK TRI-COUNTY FCU filed 11/02/12 closed 03/19/13
   FREEDOM UNITED FCU filed 11/05/12 closed 02/14/13
   WEST-AIRCOMM FCU filed 11/05/12 closed 03/14/13
   WASHINGTON COMMUNITY FCU filed 12/04/12 closed 02/14/13
   WEST VIEW SAVINGS BANK filed 12/06/12 closed 01/30/13
   UNITED COMMUNITY FCU filed 12/12/12 closed 05/08/13
   UNION BUILDING AND LOAN SAVINGS BANK filed 12/17/12 closed 02/14/13
   PROGRESSIVE-HOME FEDERAL SAVINGS AND LOAN ASSOCIATION filed 12/19/12
   closed 04/02/13
   COMPASS SAVINGS BANK filed 12/20/12 closed 08/26/13
   WESTCO FCU filed 12/28/12 closed 04/15/13
   AMERICAN EAGLE OUTFITTERS, INC. filed 09/18/13 closed 01/17/14
   BURLINGTON COAT FACTORY WAREHOUSE CORPORATION filed 09/27/13 closed
   05/16/14
   J.C. PENNEY COMPANY, INC. filed 09/30/13 closed 01/06/14
   J. CREW GROUP, INC. filed 10/02/13 closed 03/14/14
   ABERCROMBIE & FITCH CO. filed 10/03/13
   HHGREGG, INC. filed 10/11/13 closed 08/28/14
   DSW INC. filed 10/14/13 closed 02/28/14
   ULTA SALON, COSMETICS & FRAGRANCE, INC filed 10/25/13 closed 02/28/14
   THE TJX COMPANIES, INC. filed 10/29/13 closed 02/04/14
   HOBBY LOBBY STORES, INC. filed 11/21/13 closed 11/03/14
   OFFICE DEPOT, INC. filed 12/03/13 closed 02/05/14
   STERLING JEWELERS, INC. filed 12/04/13 closed 06/18/14
   THE YANKEE CANDLE COMPANY, INC. filed 12/30/13 closed 04/25/14
   EXPRESS, INC. filed 01/03/14 closed 03/27/14
   WILLIAMS-SONOMA, INC filed 01/15/14 closed 04/03/14
   CHICO’S FAS, INC. filed 01/15/14 closed 03/17/14
   ZALE CORPORATION filed 01/17/14 closed 07/08/14
   J. CREW GROUP, INC. filed 01/17/14 closed 03/14/14
   FRED MEYER JEWELERS filed 01/20/14 closed 01/06/15
   BUILD-A-BEAR WORKSHOP, INC. filed 01/20/14 closed 07/07/14
   L BRANDS, INC. filed 01/23/14 closed 06/20/14
   C & J CLARK AMERICA, INC. filed 01/23/14 closed 06/20/14
   ASCENA RETAIL GROUP, INC. filed 01/23/14 closed 07/25/14
   GANDER MOUNTAIN COMPANY, INC filed 02/04/14 closed 11/21/14
   SPRINT CORPORATION filed 02/11/14 closed 06/03/14
   REDBOX AUTOMATED RETAIL, LLC filed 09/17/14 closed 06/03/15
   FOOT LOCKER, INC. filed 07/31/15
   BROOKS BROTHERS, INC. filed 08/10/15
   HARD ROCK CAFE INTERNATIONAL, INC. filed 08/27/15
   THE PEP BOYS – MANNY, MOE & JACK filed 08/27/1

   Reply

2. John says

   March 15, 2016 at 3:34 am

   Fantastic rebuttal Kelly! I hope other blind individuals have written similar letters of opposition to a settlement that clearly does not have our best interest at heart. My biggest fear is that this hideous settlement could be approved given the general lack of knowledge about available assistive technologies and our ability to use devices with self voicing interfaces independently.

   Reply