Today, the National Federation of the Blind settled its lawsuit with
America Online, the world's largest provider of online interactive
services. the final settlement agreement between the parties is below.
Be sure to note that no timetables, accessibility performance benchmarks,
or outcome measurements are specified or called for in the agreement. it
should also be noted that Jim Clark, whose profile in the book "the New,
new Thing" was posted earlier on the list, became a billionaire from
Netscape and the eventual sale of the company to AOL.
kelly
AGREEMENT
AGREEMENT, dated July 26, 2000 by and among the National Federation of
the Blind ("NFB"), National Federation of the Blind of Massachusetts,
Inc., Robert Baran, Steven Booth, Debra Delorey, Richard Downs,
Priscilla Ferris, Theresa Jeraldi, Michael Kosior, Mary Ann Lareau and
Brandy Rose (collectively referred to as "the plaintiffs") and America
Online Inc. (America Online Inc. and its affiliates, subsidiaries and
related corporations and entities shall be referred to herein
collectively as "AOL");
WHEREAS, the plaintiffs commenced an action captioned National
Federation of the Blind et. al. v. America Online, Inc., 99CV12303EFH,
United States District Court for the District of Massachusetts
("Action"), in which the plaintiffs alleged that the "America Online
internet service" is subject to the Americans with Disabilities Act,
42 U.S.C. §§12101 et. seq. ("ADA") and further alleged that the
"America Online internet service" is not in compliance with the ADA;
WHEREAS, AOL vigorously disputes and denies each of these allegations;
WHEREAS, AOL has publicly issued and posted on its website the
"America Online Accessibility Policy";
WHEREAS, AOL has provided information regarding accessibility features
to its publishers, designers and engineers in the "America Online
Accessibility Checklist"; and
WHEREAS, AOL and the plaintiffs wish amicably to dismiss the Action
without prejudice;
NOW, THEREFORE, in consideration of the mutual promises,
acknowledgments and representations contained herein, the undertakings
set forth herein, and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as
follows:
1. Pursuant to its commitment to accessibility to persons with
disabilities, AOL has taken the following actions:
(i) AOL has defined its corporate commitment to accessibility in the
"America Online Accessibility Policy" and has posted that policy on
its web site.
(ii) AOL has developed the "America Online Accessibility Checklist" to
guide and educate its employees in making its services accessible.
(iii) AOL has entered into agreements, subject to confidentiality
provisions, with screen reader technology companies relating to the
development of products intended to be compatible with a new version
of the AOL software described below.
2. AOL has informed the NFB that (i) AOL is in the process of
designing a new version of its software ("AOL 6.0"), which is intended
to be compatible with screen reader assistive technology and which AOL
intends to release within the next 4-8 months; (ii) AOL is undertaking
steps to render the existing and future content of the AOL-developed
areas of the AOL- service largely accessible to the blind by
converting the content to a format compatible with screen reader
assistive technology, and intends to take many of those steps to
coincide with the release of the AOL 6.0 software; (iii) as to certain
exceptions (which the NFB acknowledges pose unusual technological
difficulties), AOL intends to explore reasonable solutions consistent
with its Accessibility Policy; and (iv) as with any software
development effort, technological and/or commercial difficulties may
interfere with the scope, timetable and success of the efforts
outlined in this paragraph.
3. The parties agree to meet in a prompt and timely fashion to explore
the feasibility of addressing the plaintiffs' concerns relating to (i)
the accessibility to the blind of Netscape and CompuServe; and (ii)
the specific exceptions referred to in paragraph 2(iii).
4. Upon the execution of this Agreement, the parties shall file with
the Court the Stipulation of Dismissal without Prejudice attached
hereto as Exhibit A.
5. Upon the filing of Exhibit A, the parties shall issue the press
releases attached hereto as Exhibit B.
6. The plaintiffs hereby acknowledge and agree that, at no time prior
to the first anniversary of the date of this agreement, shall they
file or cause to be filed, in any state or federal court or with any
state or federal agency, any action, claim, complaint or proceeding
against AOL which alleges under the ADA, or any other state or federal
statute or regulation, claims relating to the accessibility of AOL's
products, services or online content.
7. Neither this Agreement nor any of its provisions shall be offered
or received in evidence against any party hereto in any action or
proceeding, except to enforce its terms. The plaintiffs' sole remedy
with respect to their claims, if any, against AOL shall be limited to
those remedies which the plaintiffs have or will have in the absence
of this Agreement, and subject to the limitations contained in this
Agreement. Specifically, the plaintiffs agree that they shall not
bring any action, claim, complaint or proceeding against AOL alleging
as a claim the failure of AOL to perform consistent with the
information set forth in paragraph 2, nor shall the plaintiffs bring
any action, complaint or proceeding against AOL arising from the
plaintiffs' receipt of any of the information provided to them in the
settlement discussions of this Action, including but not limited to
the information set forth above in paragraph 2. Further, the
plaintiffs hereby acknowledge and agree that the information set forth
above in paragraph 2 is intended by AOL, and is understood by the
plaintiffs, to be solely a characterization of AOL's current
intentions and does not represent consideration underlying this
Agreement.
1. 8. As to any party whom the NFB knows has commenced, filed or
pursued any action, claim, complaint or proceeding against AOL, or
intends to do so, in any state or federal court or with any state or
federal agency which alleges, under the ADA or any other state or
federal statute or regulations, claims relating to the accessibility
of any of AOL's products, services or online content, the NFB and the
National Federation of the Blind of Massachusetts, Inc. hereby
acknowledge and agree that, at no time prior to the first anniversary
of the date of this Agreement, shall they participate in, or give
assistance in connection with, any such litigation.
9. It is acknowledged and agreed that no party to this Action purports
to be or is the prevailing party in this Action, and that no party
shall be entitled to any award of costs or expenses including, without
limitation, attorneys' fees.
10. Nothing in the Agreement shall be construed as an admission on the
part of the plaintiffs with respect to any claim that they have or
might have in the Action or with respect to any defense of law or fact
that AOL has or might have in the Action. Subject to the limitations
set forth in paragraphs 6, 7, 8 and 15 of this Agreement, the
plaintiffs (i) expressly assert that the AOL service described in the
Action is subject to the provisions of the ADA and (ii) expressly
reserve their rights to bring any action alleging violations of the
ADA, or any state or federal statute or regulation relating to the
accessibility of places of public accommodations or relating to the
governmental procurement of technology with respect to any of AOL's
products, services or online content. The parties agree that, subject
to the limitations set forth in paragraphs 6, 7, 8 and 15 of this
Agreement, nothing in this Agreement limits the rights of the
plaintiffs to bring any action of any kind against AOL which otherwise
is permitted by law.
11. Nothing in the Agreement shall be construed as an admission on the
part of AOL with respect to any allegation of law or fact set forth in
the Complaint filed in this Action. AOL (i) expressly denies that any
of its products, services or online content, including the "AOL
service" alleged in the Action is subject to the ADA; (ii) expressly
reserves its rights, in response to any action alleging violations of
the ADA, or any state or federal statute or regulation relating to the
accessibility of places of public accommodation, to assert its defense
that the ADA and/or such other state or federal statutes and
regulations do not apply to any of AOL's products, services, or
online content; and (iii) expressly reserves all other defenses to the
Action, including but not limited to the defense that the Action is
not well-founded in law or fact." The parties agree that, subject to
the limitations set forth in paragraphs 7 and 15 of this Agreement,
nothing in this Agreement limits the right of AOL to bring any action
of any kind against the plaintiffs which otherwise is permitted by
law.
12. This Agreement embodies the entire agreement and understanding
between and among the parties hereto with respect to the subject
matter hereof, and may not be changed, modified, amended, waived,
discharged or terminated except by an instrument in writing signed by
the authorized representative of the party (or, in the case of an
individual, the person himself) against whom enforcement of such
change, modification, amendment, waiver, discharge or termination is
sought.
13. This Agreement is complete and is the only agreement of the
parties hereto relating in any way to the subject matter hereof. No
statements, promises or representations have been made by any party
hereto, or relied upon by any party hereto, and no consideration has
been offered, promised, expected or held out other than is expressly
provided herein.
14. All of the parties hereto agree that they shall be deemed to have
cooperated in the drafting and preparation of this Agreement. Hence,
in any construction to be made of this Agreement, no provision thereof
shall be construed against any party hereto on the basis that that
party was the drafter.
15. The parties hereby acknowledge and incorporate in this agreement
the Protective Order entered in this case on December 15, 1999. They
expressly agree that their obligations thereunder are not extinguished
by the dismissal of this Action. The parties further agree that this
Agreement is intended to be a public document which is not subject to
the Protective Order.
16. The parties and each of them acknowledge that they have been
represented by legal counsel of their own choosing. Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. has represented AOL. Brown,
Goldstein & Levy, LLP, and Adler Pollock & Sheehan P.C. have
represented the plaintiffs. The parties further acknowledge that
their respective attorneys have reviewed this Agreement with them and
explained its terms, and that each of them has carefully read this
Agreement prior to signing it, understands and assents to all the
terms herein, and is voluntarily entering into this Agreement.
America Online, Inc.
By:
National Federation of the Blind
By:
National Federation of the Blind of
Massachusetts, Inc.
By:
Robert Baran
Steven Booth
Debra Delorey
Richard Downs
Priscilla Ferris
Theresa Jeraldi
Michael Kosior
Mary Ann Lareau
Brandy Rose
VICUG-L is the Visually Impaired Computer User Group List.
To join or leave the list, send a message to
[log in to unmask] In the body of the message, simply type
"subscribe vicug-l" or "unsubscribe vicug-l" without the quotations.
VICUG-L is archived on the World Wide Web at
http://maelstrom.stjohns.edu/archives/vicug-l.html
|
