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. Continue reading “SDNY Judge Grants Motions to Dismiss in Several ADA Gift Card Cases”
Well-known ADA plaintiffs’ firm, Carlson Lynch, has recently filed several lawsuits against stores that that have health screening kiosks, which have become popular in recent years. The kiosks allow users to self-check their blood pressure, weight, pulse and body mass index, and certain other health information. The lawsuits allege that the kiosks are not fully accessible to blind and visually impaired patrons because they require the use of a touchscreen, which plaintiffs allege is the only way to use the kiosks. Plaintiffs allege that the kiosks lack a keypad or keyboard with tactilely discernible input controls, in violation of both the ADA and the Rehabilitation Act of 1973. While the kiosks are capable of speech output and are equipped with speakers, plaintiffs claim that the audio capabilities are rendered useless to blind users who are unable to access the kiosk in the first place, due to the touchscreen component of the kiosk. Further, the lawsuits allege that, even if a blind or visually impaired user were able to access the kiosk, as a result of certain HIPAA privacy concerns, the kiosks audio function will not provide audio of the user’s health results. Plaintiffs are seeking injunctive relief, directing the defendants to make the kiosks accessible for users with visual disabilities.
The lawsuits allege that the blind plaintiff visited at least one store location and attempted to use the health kiosk, but was unable to access the kiosk because of the touchscreen. If the past practices of Carlson Lynch are any indication, every grocery store, pharmacy and retailer that operates a health kiosk is likely to end up as a defendant in a similar lawsuit.
Federal Prosecutors in New York have arrested and charged an attorney with filing fraudulent lawsuits under the Americans with Disabilities Act (“ADA”). According to the U.S. Attorney for the Southern District of New York, Stuart Finkelstein stole the identities of two individuals that he never actually represented and filed over 300 lawsuits in both the Southern District of New York and the Southern District of Florida. All of the lawsuits alleged that the individuals were denied access to certain public establishments due to ADA noncompliance. However, federal prosecutors allege that Mr. Finkelstein was never retained by the two individuals, was never authorized to file the lawsuits on their behalf, and that the individuals never actually attempted to visit the businesses in question. All told, Mr. Finkelstein collected approximately $930,000 in attorneys’ fees from the lawsuits. Mr. Finkelstein is charged with mail fraud, aggravated identify theft, obstruction of justice, and false declarations to a court. More information can be found on the Department of Justice website: https://www.justice.gov/usao-sdny/pr/attorney-charged-filing-fraudulent-lawsuits-under-americans-disabilities-act
In a pattern similar to the ADA website accessibility cases that have been so prevalent the past few years, since October 24, 2019, over 100 class action lawsuits have been filed against retail and restaurant chains alleging violations of the Americans with Disabilities Act (“ADA”) for failure to sell Braille gift cards. The lawsuits, which have all been filed in the United States District Courts for the Eastern and Southern Districts of New York, also allege violations of New York City and New York State anti-discrimination laws.
The complaints in these cases are virtually identical, with the exception of the name of the defendants. The plaintiffs allege that the defendants’ failure to sell gift cards imprinted with Braille constitutes a denial of access to defendants’ gift cards and, therefore, is also a denial of access to the products and services offered at the defendants’ brick-and-mortar locations, in violation of the ADA. Plaintiffs are seeking permanent injunctions against defendants requiring them to sell store gift cards that contain the name of the merchant and the denomination of the card in Braille, along with Braille writing on the gift card packing that conveys “other pertinent information.”
Assuming plaintiffs and their attorneys follow the same playbook they used in the ADA website cases, we expect to see an increase in these lawsuits and demand letters over the next several months, targeting any business that sells gift cards. However, we also believe there are a number of strong defenses to plaintiffs’ claims, and would expect that many defendants will move to dismiss the lawsuits.
If you have any questions about these lawsuits, please contact J. Colin Knisely, any member of the Commercial Litigation Practice Group, or the attorney in the firm with whom you are regularly in contact