By Colin Knisely and Matthew Caminiti
In late April 2020, Judge Woods of the Southern District of New York dismissed several lawsuits against retail defendants asserting violations of Title III of the Americans with Disabilities Act (“ADA”). See Murphy v. Kohl’s Dep’t Stores, No. 19-09921, 2020 WL 1974261 (S.D.N.Y. Apr. 24, 2020); Calcano v. Swarovski N. Am. Ltd., No. 19-10536, 2020 WL 1974143 (S.D.N.Y. Apr. 24, 2020); Dominguez v. Banana Republic, LLC, No. 19-10171, 2020 WL 1950496 (S.D.N.Y. Apr. 23, 2020). Specifically, the suits asserted that the various defendants violated Title III of the ADA by selling gift cards that did not include Braille, thereby discriminating against the visually impaired. Starting last year, a small group of plaintiffs filed a total of 243 largely identical complaints.
Ultimately, the Court granted defendants’ motions to dismiss concluding that the various plaintiffs could not demonstrate injuries-in-fact and therefore lacked Article III standing to maintain the suits. Although each plaintiff indicated that he or she would “immediately go purchase” a gift card once it became accessible to the sight-impaired, the Court found evidence to the contrary. As the plaintiffs “fail[ed] to plausibly allege an intent to return” to the various retailers, the Court dismissed the suits. Murphy, 2020 WL 1974261, at *1. This fact-intensive analysis at the motion to dismiss stage evidences the Court’s intention to critically analyze “copy-and-paste” lawsuits. This skeptical lens may deter other disingenuous copycat plaintiffs. Such plaintiffs now face the prospect of not only losing the settlement negotiation leverage of surviving a Rule 12(b) motion, but also exposing themselves to potential court sanctions.
For instance, in Murphy, the plaintiff claimed to “regularly visit department stores” to shop and indicated he would “immediately” purchase a gift card from defendant Kohl’s should it include Braille. Id. However, the Court noted there is “no Kohl’s retail store located at [the] address” the plaintiff provided, and that despite plaintiff’s claim to live near a Kohl’s location in Manhattan, there are no Kohl’s stores anywhere in Manhattan. Id. Similarly, in Dominguez, the Court explained:
“Plaintiff has simply not alleged enough facts to plausibly plead that he intends to “return” to the place where he encountered the professed discrimination. Put differently, there are not enough facts in Plaintiff’s complaint to plausibly suggest that he will be injured by Banana Republic’s failure to sell Braille gift cards in [the] future. Plaintiff does not profess an interest in procuring contemporary, affordable workwear, nor does he assert that he owns several Banana Republic pieces already and wishes to continue compiling a collection with the help of a Banana Republic gift card. Instead, Plaintiff only vaguely notes that he had “been a customer at Defendant’s stores on prior occasions[.]”
Dominguez, 2020 WL 1950496, at *4.
The Court found that these “generic, conclusory statements” were “plainly insufficient” and that plaintiffs must provide some specific facts when asserting an injury-in-fact. Id.
Notably, the Court did not stop there. The Court further held that, notwithstanding the plaintiffs’ lack of standing, the suits should be dismissed as plaintiffs’ ADA claims fail as a matter of law. The ADA prohibits the “failure to take steps as may be necessary to ensure that no individual with a disability is excluded, denied services, [or] segregated or otherwise treated differently . . . because of the absence of auxiliary aids or services[.]” 42 U.S.C. § 12182(b)(2)(A)(iii). The ADA broadly defines “auxiliary aids and services” to include “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments,” as well as “modification[s] of equipment or devices [and] other similar services and actions.” 42 U.S.C. § 12103(1)(B)-(D). Critically, the Department of Justice’s regulations indicate that the ADA empowers retailers, not customers, to choose which auxiliary aids to offer, providing, “[a] public accommodation should consult with individuals with disabilities what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.” 28 C.F.R. § 36.303(c)(1)(ii). The regulations further state that the “auxiliary aid requirement is a flexible one” and, coincidentally, provides the example that “a restaurant would not be required to provide menus in Braille for patrons who are blind, if the waiters  are made available to read the menu.” 28 C.F.R. Part 36, App’x C.
Relying on the plain language of the statute and the applicable regulations, the Court concluded the plaintiffs were not denied access to an auxiliary aid or service, and much less one that effectively communicated information about the gift cards. Dominguez, 2020 WL 1950496, at *11. The Court highlighted that the plaintiffs’ inquiries were limited exclusively to learning that the retailers did not sell Braille-printed gift cards. Id. Plaintiffs failed to allege they made any other requests regarding potential accommodations. Id. Furthermore, the Court determined the plaintiffs could not rely on “rote assertions” that “upon information and belief, [defendants] do not offer auxiliary aides with respect to gift cards.” Id. Indeed, plaintiffs had no substantiation of such and the court would not allow it to “merely plop ‘upon information and belief’ in front of a conclusory allegation and thereby render it non-conclusory.” Id. (quoting Citizens United v. Schneiderman, 882 F.3d 374, 384-85 (2d Cir. 2018)).
From there, the Court declined to exercise supplemental jurisdiction over plaintiffs’ New York State or City Human Rights Laws claims. Accordingly, the Court dismissed each complaint without prejudice.
The Court did manage to provide a bit of humor in admonishing the plaintiffs over their litigation practices. The Court lambasted the “copy-and-paste litigation” techniques by which several of the Braille gift card lawsuits seem to have been drafted. Dominguez, 2020 WL 1950496, at *12. The Court noted that the lawsuit erroneously refers to Banana Republic as a “food establishment,” most likely an error made in hasty complaint reproduction. To avoid any confusion, the Court explained that “although it features the fruit in its name, Banana Republic does not sell bananas.” Id.