{"id":71,"date":"2020-05-04T17:51:24","date_gmt":"2020-05-04T21:51:24","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/?p=71"},"modified":"2020-05-04T17:51:24","modified_gmt":"2020-05-04T21:51:24","slug":"sdny-judge-grants-motions-to-dismiss-in-several-ada-gift-card-cases","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/2020\/05\/04\/sdny-judge-grants-motions-to-dismiss-in-several-ada-gift-card-cases\/","title":{"rendered":"SDNY Judge Grants Motions to Dismiss in Several ADA Gift Card Cases"},"content":{"rendered":"

By Colin Knisely<\/a> and Matthew Caminiti<\/a><\/p>\n

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 (\u201cADA\u201d). See Murphy v. Kohl\u2019s Dep\u2019t Stores<\/em>, No. 19-09921, 2020 WL 1974261 (S.D.N.Y. Apr. 24, 2020); Calcano v. Swarovski N. Am. Ltd.<\/em>, No. 19-10536, 2020 WL 1974143 (S.D.N.Y. Apr. 24, 2020); Dominguez v. Banana Republic, LLC<\/em>, No. 19-10171, 2020 WL 1950496 (S.D.N.Y. Apr. 23, 2020).\u00a0 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.\u00a0 Starting last year, a small group of plaintiffs filed a total of 243 largely identical complaints.<\/p>\n

Ultimately, the Court granted defendants\u2019 motions to dismiss concluding that the various plaintiffs could not demonstrate injuries-in-fact and therefore lacked Article III standing to maintain the suits.\u00a0 Although each plaintiff indicated that he or she would \u201cimmediately go purchase\u201d a gift card once it became accessible to the sight-impaired, the Court found evidence to the contrary.\u00a0 As the plaintiffs \u201cfail[ed] to plausibly allege an intent to return\u201d to the various retailers, the Court dismissed the suits. Murphy<\/em>, 2020 WL 1974261, at *1.\u00a0 This fact-intensive analysis at the motion to dismiss stage evidences the Court\u2019s intention to critically analyze \u201ccopy-and-paste\u201d lawsuits.\u00a0 This skeptical lens may deter other disingenuous copycat plaintiffs.\u00a0 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.<\/p>\n

For instance, in Murphy<\/em>, the plaintiff claimed to \u201cregularly visit department stores\u201d to shop and indicated he would \u201cimmediately\u201d purchase a gift card from defendant Kohl\u2019s should it include Braille. Id.<\/em>\u00a0 However, the Court noted there is \u201cno Kohl\u2019s retail store located at [the] address\u201d the plaintiff provided, and that despite plaintiff\u2019s claim to live near a Kohl\u2019s location in Manhattan, there are no Kohl\u2019s stores anywhere in Manhattan. Id.<\/em>\u00a0 Similarly, in Dominguez<\/em>, the Court explained:<\/p>\n

“Plaintiff has simply not alleged enough facts to plausibly plead that he intends to \u201creturn\u201d to the place where he encountered the professed discrimination.\u00a0 Put differently, there are not enough facts in Plaintiff\u2019s complaint to plausibly suggest that he will be injured by Banana Republic\u2019s failure to sell Braille gift cards in [the] future.\u00a0 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.\u00a0 Instead, Plaintiff only vaguely notes that he had \u201cbeen a customer at Defendant\u2019s stores on prior occasions[.]\u201d<\/p><\/blockquote>\n

Dominguez<\/em>, 2020 WL 1950496, at *4.<\/p>\n

The Court found that these \u201cgeneric, conclusory statements\u201d were \u201cplainly insufficient\u201d and that plaintiffs must provide some<\/em> specific facts when asserting an injury-in-fact. Id.\u00a0 <\/em><\/p>\n

Notably, the Court did not stop there.\u00a0 The Court further held that, notwithstanding the plaintiffs\u2019 lack of standing, the suits should be dismissed as plaintiffs\u2019 ADA claims fail as a matter of law.\u00a0 The ADA prohibits the \u201cfailure 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[.]\u201d 42 U.S.C. \u00a7 12182(b)(2)(A)(iii).\u00a0 The ADA broadly defines \u201cauxiliary aids and services\u201d to include \u201cqualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments,\u201d as well as \u201cmodification[s] of equipment or devices [and] other similar services and actions.\u201d 42 U.S.C. \u00a7 12103(1)(B)-(D).\u00a0 Critically, the Department of Justice\u2019s regulations indicate that the ADA empowers retailers<\/em>, not customers, to choose which auxiliary aids to offer, providing, \u201c[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.\u201d 28 C.F.R. \u00a7 36.303(c)(1)(ii).\u00a0 The regulations further state that the \u201cauxiliary aid requirement is a flexible one\u201d and, coincidentally, provides the example that \u201ca 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.\u201d 28 C.F.R. Part 36, App\u2019x C.<\/p>\n

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<\/em>, 2020 WL 1950496, at *11.\u00a0 The Court highlighted that the plaintiffs\u2019 inquiries were limited exclusively to learning that the retailers did not sell Braille-printed gift cards. Id.\u00a0 <\/em>Plaintiffs failed to allege they made any other requests regarding potential accommodations. Id.<\/em>\u00a0 Furthermore, the Court determined the plaintiffs could not rely on \u201crote assertions\u201d that \u201cupon information and belief, [defendants] do[] not offer auxiliary aides with respect to gift cards.\u201d Id. <\/em>\u00a0Indeed, plaintiffs had no substantiation of such and the court would not allow it to \u201cmerely plop \u2018upon information and belief\u2019 in front of a conclusory allegation and thereby render it non-conclusory.\u201d Id. <\/em>(quoting Citizens United v. Schneiderman<\/em>, 882 F.3d 374, 384-85 (2d Cir. 2018)).<\/p>\n

From there, the Court declined to exercise supplemental jurisdiction over plaintiffs\u2019 New York State or City Human Rights Laws claims.\u00a0 Accordingly, the Court dismissed each complaint without prejudice.<\/p>\n

The Court did manage to provide a bit of humor in admonishing the plaintiffs over their litigation practices.\u00a0 The Court lambasted the \u201ccopy-and-paste litigation\u201d techniques by which several of the Braille gift card lawsuits seem to have been drafted. Dominguez<\/em>, 2020 WL 1950496, at *12.\u00a0 The Court noted that the lawsuit erroneously refers to Banana Republic as a \u201cfood establishment,\u201d most likely an error made in hasty complaint reproduction.\u00a0 To avoid any confusion, the Court explained that \u201calthough it features the fruit in its name, Banana Republic does not sell bananas.\u201d Id.\u00a0 <\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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 (\u201cADA\u201d). See Murphy v. Kohl\u2019s Dep\u2019t Stores, No. 19-09921, 2020 WL 1974261 (S.D.N.Y. Apr. 24, 2020); Calcano v. Swarovski … <\/p>\n

Continue reading “SDNY Judge Grants Motions to Dismiss in Several ADA Gift Card Cases”<\/span><\/a><\/p>\n","protected":false},"author":84,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[8,53,5,54],"ppma_author":[57],"class_list":["post-71","post","type-post","status-publish","format-standard","hentry","category-general","tag-ada","tag-braille-printed-gift-cards","tag-colin-knisely","tag-sdny"],"authors":[{"term_id":57,"user_id":84,"is_guest":0,"slug":"cknisely","display_name":"J. Colin Knisely","avatar_url":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-content\/uploads\/sites\/45\/2019\/07\/kniselycolin-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/posts\/71","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/users\/84"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/comments?post=71"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/posts\/71\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/media?parent=71"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/categories?post=71"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/tags?post=71"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/adatitleiiicompliance\/wp-json\/wp\/v2\/ppma_author?post=71"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}