NEW YORK (Legal Newsline) - A federal judge in New York slammed the door on an emerging line of Americans with Disabilities Act lawsuits, saying the heavily litigated statute does not require stores to provide gift cards in Braille.
Ruling in a lawsuit involving Banana Republic and expressing opinions that likely will be applied toward hundreds of similar cases in New York courts, U.S. District Judge Gregory H. Woods said retailers must accommodate disabled customers in their stores and on websites, but they don’t have to provide goods specifically designed for those with disabilities.
The decision represents a rare example of merchants fighting back against ADA lawsuits, which lawyers file by the hundreds using a small group of plaintiffs with the expectation of defendants settling for less than the cost of litigation. In this case, New York lawyer Jeffrey Gottlieb filed hundreds of similar gift-card lawsuits in two federal courts in New York over a period of weeks against retailers including Banana Republic, Kohl’s, Pacific Sunwear and Godiva Choclatier.
The lawsuits, which Judge Woods described as “copy-and-paste,” were riddled with mistakes such as listing the address of a Kohl’s store in Manhattan, where it has no outlets, and describing Banana Republic as a “food establishment.”
“Although it features the fruit in its name, Banana Republic does not sell bananas,” the judge wrote in his April 23 opinion. He issued similar rulings in ADA lawsuits against three other companies and his decision likely will be cited by other defendants in pending cases.
“Our hope is this entire line of cases is shut down, and plaintiffs’ lawyers more generally think twice before blanketing everybody under the sun with meritless lawsuits,” said Meredith Slawe, a partner with Akin Gump who defends companies against ADA suits. “Plaintiffs’ class action lawyers have attempted to exploit a statute that has an important purpose for their own commercial interest.”
The judge left the plaintiffs a small amount of room to amend their complaints within 15 days by adding details such as how often they visited the stores they sued and evidence they would continue to patronize those stores. But his decision expresses strong skepticism any lawsuit over Braille gift cards will succeed under the ADA, both because the law doesn’t require companies to stock goods specifically for disabled customers and because Braille is a particularly difficult medium to use on a small item like a gift card.
He cited a brief submitted by the National Retail Federation that “Harry Potter and the Goblet of Fire” runs to 10 volumes in Braille and a typical gift card could hold at most 70 characters of the raised type.
Gottlieb, who has filed hundreds of ADA lawsuits over a variety of alleged violations, declined to comment on the judge’s ruling, including criticism of “meritless” claims.
“All I can say is we’re considering filing an amended complaint or an appeal,” Gottlieb said.
Gottlieb’s client, Bronx resident Yovanny Dominguez, claims he called Banana Republic’s customer service office asking whether the store sold Braille gift cards. When the employee said they didn’t, he sued without asking for any other accommodation. Federal court records show Dominguez has filed similar lawsuits over Braille gift cards and websites against at least 50 other companies since October 2018, including shoe and book stores, assisted living facilities and, even though he is visually impaired, vehicle manufacturers Mercedes-Benz and Triumph Motorcycles.
Judge Wolf cited the upsurge of this new variant on ADA litigation in his court and others, saying “the Southern and Eastern Districts of New York have been flooded with litigation from a handful of plaintiffs seeking injunctive relief, compensatory damages, and, of course, attorneys’ costs and fees” for failure to sell Braille gift cards."
“Much of this litigation is premised on the meritless argument” that the ADA requires “requires retailers to create specialty goods for the visually impaired," he said. “No read of the ADA supports that allegation.”
The judge formally dismissed the case because Dominguez had no standing to sue under Article III of the U.S. Constitution, which limits federal courts to actual “cases and controversies.” Dominguez, if his complaints are to be believed, called scores of retailers over a short period of time asking each one if they carried Braille gift cards. His “all-too generic complaint” failed to list any evidence on whether he planned to go to Banana Republic in the future to use his hypothetical Braille gift cards.
“The greatest asset of copy-and-paste litigation can also be its greatest weakness,” the judge wrote, citing another decision which stated “those who live by the photocopier die by the photocopier.”
Even if he were able to purchase a Braille gift card, the judge noted, Dominguez would have to pay for it with non-Braille cash or credit cards.
“The allegation has to be plausible, that the plaintiff has been injured in some way,” said Michael McTigue, also a partner with Akin Gump. “It does not seem plausible that a small group of plaintiffs wanted 243 gift cards, all at around the same time, in Braille.”
The retailers collectively decided to fight instead of settling for the payment of legal fees. They were supported by industry associations including the National Retail Federation, the Restaurant Law Center and the National Association of Theater Owners. The decision doesn’t change the landscape much for other types of ADA suits in the Second District based in New York, where precedent still allows lawsuits over non-ADA-compliant websites.
But by drawing a clear line between accommodating visitors with disabilities and being required to stock specialized goods for them, retailers hope the decision squelches creative new interpretations of the law.
“Individual retailers saw what happened with respects to website accessibility claims, text messaging TCPA claims, and other mass litigation,” Slawe said. “They decided to push back on the latest wave of meritless claims and the Banana Republic ruling vindicates that decision.”
Judge Wolf finished with a subtle critique of the cottage industry that has sprung up around the ADA.
“Computers have made a lot of things in life easier,” he wrote. “Copy-and-paste litigation is one of them.”