Last fall, hundreds of lawsuits were filed in the Southern District of New York alleging that retailers and restaurants that failed to offer gift cards with Braille lettering for sale violated the Americans with Disabilities Act (see a Steptoe summary of this wave of complaints here).
Judge Woods recently decided the first two of these cases: Dominguez v. Banana Republic and Murphy v. Kohl’s Department Stores. In both cases, Judge Woods dismissed the complaints for lack of standing and failure to state a claim. Judge Woods held that a Braille gift card is a specialty good that merchants are not required to stock under the ADA’s implementing regulations. He further held that the ADA empowers retailers to choose which auxiliary aids they offer, rather than allowing customers to demand a particular aid.
The opinions also take issue with the duplicative “copy and paste” nature of these complaints, which lacked specific allegations sufficient to create standing. In the Murphy opinion, Judge Woods found that the plaintiff had failed to allege an intent to return to the store where he was denied service. The opinion notes that:
Murphy asserts that he lives on the same street as one of Defendant’s retail store [locations] at 271 W. 23rd Street, New York, NY . . . because the Court may refer to evidence outside the pleadings when adjudicating a Rule 12(b)(1) motion, the Court notes that there is no Kohl’s retail store located at that address. Indeed, there are no Kohl’s stores anywhere in Manhattan.
In the Dominguez opinion, he further observed that:
True, the more generic the complaint, the more easily it can be repurposed for use against different defendants. But the greatest asset of copy-and-paste litigation can also be its greatest weakness. And here, that weakness is fully on display; by failing to allege any nonconclusory facts of a real or immediate threat of injury, Plaintiff lacks standing to pursue injunctive relief under the ADA. Or, more pithily: “There is nothing inherently wrong with filing duplicative lawsuits against multiple defendants if the harms to be remedied do exist and are indeed identical. But those who live by the photocopier shall die by the photocopier.”
And he also pointed out that:
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.
Steptoe & Johnson represented several retailers facing these suits, including the defendant in the Murphy matter.