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In what is believed to be the first ruling of its kind, a federal district court in New York has ruled that retailers cannot be sued under Title III of the Americans with Disabilities Act for not offering braille gift cards.
Federal courts in New York have been “flooded” with litigation from a handful of plaintiffs over the past eight months seeking injunctive relief, compensatory damages, and attorneys costs and fees in “cut-and- paste” litigation that charges retailers have violated the ADA by not issuing the cards, according to Thursday’s ruling by the U.S. District Court in New York in Yovanny Dominguez v. Banana Republic, LLC.
Two law firms are responsible for filing many of these cases, according to a footnote to the ruling.
On Oct. 26, 2019, Mr. Dominguez was told when he called San Francisco-based Banana Republic that the retailer did not offer the gift cards, according to the ruling.
His subsequent lawsuit charged that a braille card’s inaccessibility deterred him from “fully and equally us(ing) or enjoy(ing)” the facilities, goods and services Banana Republic offered to the public at its retail stores. The lawsuit charged violations of the ADA, New York State and New York City discrimination laws.
The plaintiff does not have standing under the ADA to file suit, said the ruling, in dismissing the lawsuit. To do so successfully, under the ADA it must be reasonable to infer that the plaintiff “intended to return to the subject location,” said the ruling by Judge Gregory H. Woods.
This “is where Plaintiff’s all-too-generic complaint fails,” said the ruling. “Plaintiff has simply not alleged enough acts to plausibly plead he intends to ‘return’ to the place he encountered the professed discrimination,” it said.
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,” the ruling said.
The ruling states also the ADA prohibits discrimination by any place of public accommodation and gift cards are not such places.
Attorneys in the case did not respond to requests for comment.
Minh N. Vu, a partner with Seyfarth Shaw LLP in Washington, who is not involved in the case, said “well over” 200 such cases have been filed in New York, plus a number in state court in California.
Ms. Vu said last week’s ruling is significant. “Judge Woods took the time to address every single argument the plaintiffs had made in their briefs,” so it “provides a roadmap for other judges who have these cases, if they’re so inclined” to dismiss them.
“I do think Judge Woods’ case analysis is very persuasive and thorough,” she added.
In 2017, plaintiff attorneys filing cases over the issue of website accessibility for the blind were encouraged by a U.S. District Court ruling in Miami in Juan Carlos Gil v. Winn-Dixie Stores Inc. which, following a trial, held the supermarket chain was obligated to provide an accessible website to a legally blind plaintiff under the ADA. That case is now before the 11th U.S. Circuit Court of Appeals in Atlanta, which has not yet issued a ruling.
A firm that provides services in Delaware correctional facilities and other state institutions will pay $550,000 to settle charges by the U.S. Equal Employment Opportunity Commission that it unlawfully enforced inflexible maximum leave policies in violation of the Americans with Disabilities Act.