Earlier this year, we posted about the new wave of ADA claims that flooded the district courts in New York concerning Braille on gift cards (see Braille on gift cards: ADA accessibility issue or novel shakedown?) . Four months later, a judge in the Southern District of New York issued the first ruling to shut down one plaintiff’s claims, holding that Title III does not require Braille on gift cards. See Dominguez v. Banana Republic, LLC, 2020 U.S. Dist. LEXIS 72193.
The plaintiff in this case, like all of the other virtually identical complaints, alleged that he was unable to obtain a Braille gift card at a clothing retailer. The plaintiff claimed that the lack of an accessible gift card deterred him from fully and equally using or enjoying the facilities of the retailer. The defendant moved to dismiss plaintiff’s complaint.
In his decision, Judge Woods first analyzed whether plaintiff had standing to bring his ADA claim. Id. at 4. To establish standing, plaintiff had to allege a past injury, facts to infer that the discriminatory treatment would continue, and facts to infer that plaintiff intended to return to the subject location. After finding that the first two elements were met, Judge Woods found that the third element is where “Plaintiff’s all-too-generic complaint fails” as there were not enough facts to plausibly plead that plaintiff intends to “return” to the retailer. Id. at 8. Although Judge Woods could have stopped his opinion there, he moved on to address the merits of complaint with the understanding that a number of courts are grappling with the same issues.
Starting with the text of the statute, Judge Woods explained that Title III prohibits public accommodations from discriminating on the basis of disability when providing access to goods or services. Id. at 13. As such, Title III does not obligate retailers to create special, accessible merchandise that are designed for use by those with disabilities. Id. at 14. Just like a book store need not create Braille versions of books, retailers do not need to offer Braille on gift cards. Id.
Next, Judge Woods found that gift cards are not public accommodations or places. Id. at 18. The court analyzed the twelve categories of places that the ADA expressly enumerated—such as places of lodging, establishments serving food and drink, places of exhibition or entertainment—and found that a gift card does not fit into any of those categories. Id. at 18-19. Indeed, plastic cards are not places that can provide any services to the public.
The court also found that the retailer did not deny plaintiff access to a service because plaintiff never asked the retailer what gift card related accommodations were available for blind patrons. The facts in the complaint simply say that plaintiff called the retailer, asked for a Braille gift card, and hung up when he was advised that none was available. Id. at 28.
To conclude his opinion, Judge Woods commented on plaintiff’s “copy-and-paste litigation” and noted the “pitfalls” of such approach. Id. at 30. Since his opinion, Judge Woods has dismissed numerous other braille on gift card complaints pending in his court, and at least one magistrate judge has followed Judge Woods’ opinion in his recommendation to dismiss another complaint. However, while this is a silver lining, a celebration may be premature as plaintiff recently filed an appeal challenging Judge Woods’ decision. We will have to wait and see what the futures holds for braille on gift cards.