2nd Circuit Sides With Swarovski in Braille Gift Cards

A series of lawsuits seeking to determine whether brands/retailers must use Braille on gift cards to avoid liability under the Americans with Disabilities Act (“ADA”) have been reviewed by a court of federal appeal earlier this summer, marking the latest (and final) development in the closely watched matter. In a decision in June, the United States Court of Appeals for the Second Circuit upheld the lower court’s dismissal of five consolidated cases brought by visually impaired plaintiffs, who had accused defendants – including Swarovski, Banana Republic and Kohl’s, among others – for violating the ADA by not offering braille gift cards.

In upholding the lower court’s dismissal of plaintiffs’ ADA claims for lack of standing and alternatively, for failure to file a claim, the Second Circuit determined that plaintiffs’ “conclusive and boilerplate allegations” were insufficient. to claim standing. Writing for the court, Judge Michael Park said that in the five nearly identical complaints at issue, the plaintiffs claimed they “lived close to [the] defendants’ stores, have been customers in the past and intend to purchase gift cards when they become available in the future. Missing from these claims, according to the court, is “any explanation of how plaintiffs were harmed by the unavailability of Braille gift cards or any details regarding plaintiffs’ prior visits to defendants’ stores that would support an inference according to which [they] intended to return.

Specifically, the appeals court said the Second Circuit had previously ‘deemed a plaintiff seeking an injunction to have suffered factual prejudice where:’ (1) the plaintiff alleged past prejudice under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on plaintiff’s past frequency of visits and proximity to defendants [businesses] at the applicant’s home, the applicant intended to return to the location in question” if Braille gift cards were available. Here, the court determined that the plaintiffs’ claims were insufficient with respect to the third prong – their intention to return and their proximity – and, therefore, they failed to establish a “material risk of future harm” which is “sufficiently imminent and substantial”. ”

At the same time, the court blamed plaintiffs for their filings, saying it “cannot ignore the larger context of plaintiffs’ transparent pleadings by copying and pasting and filling in the blanks”, and their tendency to do almost – identical costumes. “The four plaintiffs before us filed 81 of the more than 200 essentially carbon copy complaints between October and December 2019 – all of us[ing] identical language to state the same conclusive allegations,” Judge Park said. And to make matters worse, the complaints are replete with “errors, quirks and omissions”, which the court said are “the result of their mass production, [which] make each plaintiff’s cookie-cutter claim implausible. »

In light of the foregoing, and without analyzing defendants’ failure to present a claim argument, the Second Circuit Judges held that the District Court did not err in dismissing plaintiffs’ amended claims for default. quality.

In a concurring opinion, Justice Raymond Lohier said that while he disagreed with the majority decision that the plaintiffs lacked standing, he nevertheless concluded that the complaints did not indicate cause of action under the ADA. Judge Lohier says intention to return not a necessary element of standing (“Article III contains none of the requirements imposed by the majority in this case”, he asserts) – and even if so, plaintiffs have sufficiently alleged such intent by way of allegations that they live near at least one of defendants’ businesses and have previously visited the business in question and that it was inaccessible, making it “plausible to infer that they intend to visit again”.

However, the plaintiffs’ cases still fail, according to Judge Lohier, because they do not allege that the defendants discriminated against them under the ADA by “denying [them] full and equal opportunity to benefit from the services provided by the defendants. In particular, he said plaintiffs do not make a claim because they “do not plausibly and adequately allege that defendants denied them adequate attendant aids and services by not providing Braille gift cards.” . Simultaneously, he asserted that Braille gift cards are “not the only type of ADA-compliant ancillary aid or service,” and the court “cannot plausibly infer from the [plaintiffs’] allegations that they… were refuse other types of auxiliary aids or services.

Reflecting on the outcome of the case, attorneys for Jackson Lewis, Jenna Eurell and Joseph Lynett declare that it’s “a welcome move for companies that have seen a relentless onslaught of public hosting lawsuits.” The decision is an example of the “opportunities available to companies to successfully defend these public accommodation lawsuits and the potential to eliminate or significantly reduce the number of lawsuits brought by serial plaintiffs,” according to Eurell and Lynett. , who note that the Calcano case “demonstrates the vulnerability plaintiffs face in establishing a real and imminent threat of harm to have standing to sue under the ADA where plaintiffs file hundreds of complaints with alleged pass- almost identical everywhere.

In a nod to the influx of lawsuits over the past decade that have targeted website operators – particularly those in the retail industry – for allegedly failing to make their sites accessible to consumers visually impaired, Eurell and Lynett say that among the things that “remain to be seen” in the immediate wake of the Second Circuit’s decision, they note, is “if the district courts [will] Apply Second Circuit reasoning, including Justice Lohier’s concurring opinion, to suits for website accessibility, another type of public hosting claim that has slandered businesses over the past decade.

The case is Calcano, et al. v Swarovski North America Ltd., et al., 20-1594 (2d Cir. June 2, 2022).

Michael N. Clark