Seyfarth Synopsis: In a first-in-the-nation decision, Judge Gregory Woods of the Southern District of New York ruled that Title III does not require public accommodations to manufacture or sell Braille gift cards.
It has been a gloomy month for businesses that (ordinarily) open their doors to the public, but there was a small bright spot: U.S. District Court Judge Gregory Woods issued a decision holding that Title III of the ADA does not require public accommodations to make and sell gift cards with Braille.
The decision is significant because, at the end of 2019 and first few months of this year, a handful of plaintiffs represented by a small group of coordinated plaintiff’s attorneys inundated the New York federal courts with more than 200 boilerplate lawsuits claiming that retailers, restaurants, and entertainment venues violated Title III of ADA, New York State, and New York City non-discrimination laws by not offering gift cards with Braille. Defendants fought back with motions to dismiss these lawsuits, and Judge Woods’ decision is the first to issue from the bench. Decisive and thorough, the decision provides a roadmap for other judges to reach the same conclusion in the many other pending cases, should they be so inclined.
In the case in question, as in the other cases, the plaintiff here alleged that he called the defendant and inquired whether the defendant sells gift cards with Braille. The defendant answered in the negative and did not proactively offer some other auxiliary aid or service. The plaintiff filed a lawsuit shortly thereafter.
Judge Woods first concluded that the plaintiff’s “all-too-generic” complaint was insufficient to establish standing to sue because the plaintiff had not demonstrated that he would be injured by the absence of Braille on the retailer’s card in the imminent future – a requirement for ADA Title III lawsuits, which only offer forward looking injunctive relief. Specifically, the plaintiff provided no facts to suggest that he would be patronizing the defendant’s store in the future where he would need to use a Braille gift card. Judge Woods could have ended the opinion there, but, because it could inform other pending cases, went on to address the merits of the plaintiff’s ADA Title III claim.
First, he concluded that Title III and its regulations do not require the provision of different goods or services to people with disabilities, but rather only require nondiscriminatory enjoyment of those that are provided. So, for example, a bookstore would not be required to sell books in both Braille and standard print. Likewise, the court found, the ADA does not require businesses to make or sell gift cards with Braille print. The court wrote: “A retailer need not alter the mix of goods that it sells to include accessible goods for the disabled.”
Second, the court held that the gift card is not a place of public accommodation, as claimed by the plaintiff. “[R]eading the words “place of public accommodation” to include small slabs of plastic requires more than just a broad construction of Title III—it requires a rewrite of Title III entirely.”
Third, the court found that the defendant did not deny the plaintiff access to a service by failing to provide him with an accessible gift card because the plaintiff never asked for an auxiliary aid or service in the first place. The court said: “The recitation of facts in Dominguez’s complaint make it clear that he never even asked for one, even though Plaintiff acknowledges that no one specific auxiliary aid is mandated by the ADA.”
Fourth, the court rejected Plaintiff’s argument that gift cards are like U.S. paper money which the D.C. Court of Appeals has held must be made accessible to people who are blind or low vision. The court called this argument “a strange interlude in Plaintiff’s opposition,” and said “the analogy to cash falls apart under even modest scrutiny.” The court also found no privacy considerations were implicated by the use of gift cards, unlike ATMs, for example, which require the input of a personal identification number.
Judge Woods concluded with the following comment about the boilerplate nature of these lawsuits:
Computers have made a lot of things in life easier. Copy-and-paste litigation is one of them. The pitfalls of such an approach is evident here where, among other things, Plaintiff’s opposition responds to arguments never made by its opponent in its motion and failed to even correctly identify what Defendant sells. See, e.g., Opp‘n at 3, 15, 16, 20 (referring to Banana Republic as a “food establishment”). Although it features the fruit in its name, Banana Republic does not sell bananas.
This decision is only the first of many decisions, but it is certainly a good start. We expect to see more judges weighing in in the coming months and we will continue to report on these decisions as they come out. Stay tuned for more updates.
UPDATE: Shortly after the court issued the decision discussed above, Judge Woods issued decisions in a number of other nearly identical gift card cases which rely on the analysis in the Banana Republic case to dismiss the plaintiff’s claims.