Overview
At the end of 2019, a flood of nearly 250 copycat lawsuits were filed in the Southern and Eastern Districts of New York, each alleging that retailers and restaurants were violating the Americans with Disabilities Act (ADA) by failing to sell gift cards embossed in Braille lettering. (Read our prior coverage of these lawsuits). On April 23, Judge Gregory H. Woods in the Southern District issued the first rulings on five motions to dismiss in Dominguez v. Banana Republic; Murphy v. Kohl's Department Stores, Inc.; Mendez v. AnnTaylor, Inc.; Calcano v. Swarovski North America Ltd.; and Dominguez v. CKE Restaurants Holdings, Inc. Judge Woods dismissed the cases based on the plaintiffs' lack of standing, as well as on the merits. While the court did offer the plaintiffs leave to amend their complaints a second time, the language and tenor of the opinion suggest that it will be difficult for the plaintiffs to clear the necessary hurdles to keep these cases alive.
The allegations in these cases are essentially identical: The plaintiffs claim to have called the customer service lines of the defendants and asked if the defendants sold Braille gift cards. Upon being told that the defendants did not sell Braille gift cards, the plaintiffs filed suit alleging violations of the ADA, New York State Human Rights Law, and New York City Human Rights Law. The plaintiffs claimed that the defendants were intentionally discriminating against their sight-impaired consumers by not providing them with accessible gift cards.
Judge Woods held that the universal failing in each of the five complaints was the plaintiffs' lack of standing, as none of the plaintiffs could establish a genuine intent to return to any of the defendants' retail locations. The plaintiffs' bare allegations that they each lived near one of the defendants' stores and had shopped at one of the defendants' stores at some time in the past were not sufficiently concrete to confer standing.
On the merits, the court determined that Braille gift cards constitute a "specialty good" that businesses are not required to make available pursuant to regulations promulgated by the Department of Justice in 28 C.F.R. § 36.307(a), as the ADA only regulates access to places of public accommodation, not the types of goods offered. Judge Woods also found that the plaintiffs could not maintain a claim for any lack of auxiliary aids since the plaintiffs never requested any auxiliary aid other than a Braille gift card. In the first of the five rulings, issued in the Dominguez v. Banana Republic case, the court cited with favor the joint amicus brief filed by the National Retail Federation, Retail Litigation Center, Restaurant Law Center, National Association of Theater Owners, and Retail Gift Card Association in support of the motion to dismiss filed in the Murphy v. Kohl's case. Judge Woods noted that the industry's amicus brief persuasively illustrated how the information that the plaintiffs demanded be placed in Braille on gift cards simply wouldn't fit. By way of example, the amicus brief demonstrated that a Braille translation of Harry Potter and the Goblet of Fire would fill 10 volumes given how large Braille characters are.
In some jabs at plaintiffs' counsel's cut-and-paste complaints, Judge Woods noted in the Kohl's decision that the address the plaintiff alleged to be that of a Kohl's store near him was not only not a Kohl's, but that there were no Kohl's stores located in Manhattan at all. (The location listed was of a Boston Market, another defendant targeted in a Braille case.) Perhaps the most entertaining comment, however, was in Dominguez v. Banana Republic, where the plaintiff repeatedly referred to the store as a "restaurant," prompting Judge Woods to note that "[a]lthough it features the fruit in its name, Banana Republic does not sell bananas."
The handful of dismissals in these first-ruled upon Braille cases provide some much-needed good news for retailers and restaurants in the midst of the COVID-19 crisis. Approximately 30 cases pending in the Eastern District have been related before Judge Gary Brown, who has in pre-motion proceedings also expressed skepticism as to the viability of these claims. If we see a series of similar rulings in those cases, and other cases pending in the Southern District of New York, it may be "lights out" for this litigation.