June 7, 2022
NRF welcomes dismissal of carbon copy lawsuits over Braille gift cards
The National Retail Federation (NRF) welcomed a federal appeals court’s rejection of a series of “carbon copy” lawsuits claiming five retailers violated the Americans with Disabilities Act by failing to sell Braille gift cards.
“This ruling is important because it acknowledges that there are multiple ways retailers can help visually impaired customers achieve their goals and comply with the ADA without being required to offer a specialized product for a specific group of customers,” Stephanie Martz, chief administrative officer and general counsel for NRF said. “This could have significant implications beyond gift cards, including the ongoing debate over web access.”
“Retailers want to serve all their customers and are glad to assist visually impaired or blind shoppers whether it’s with gift cards, price tags or otherwise,” Martz said. “But these lawsuits were an attempt by trial lawyers to exploit the disabled and the ADA rather than correct an actual problem. Time and resources retailers spend defending themselves against frivolous lawsuits are time and resources taken away from efforts to correct legitimate concerns and better serve all consumers, disabled or not.”
The U.S. 2nd Circuit Court of Appeals last week upheld a U.S. District Court judge’s 2020 ruling that Marcos Calcano, Yovanny Dominguez, Braulio Thorne and James Murphy did not have legal standing to bring the lawsuits. The cases named Swarovski North America Limited, Banana Republic LLC, Jersey Mike’s Franchise Systems Inc., The Art of Shaving LLC and Kohl’s Inc.
NRF filed an amicus brief in 2020 asking that those and scores of related cases be dismissed, arguing that the ADA does not require retailers to sell products specially designed for use by disabled people. ADA regulations do not address gift cards but say retailers are not required to sell Braille books or provide Braille price tags and that restaurants are not required to provide menus in Braille. Clerks and waiters can read price tags or menus to blind customers, for example, the brief said.
“Plaintiff’s demand that defendant sell a specific product specially designed for people with visual impairments threatens to untether the Americans with Disabilities Act from its statutory moorings and dramatically expand the potential obligations and liabilities of all public accommodations,” the brief said. “Taken to its logical conclusion, plaintiff’s argument would prohibit amici’s members from selling any product that is not independently usable by people with visual impairments or any other disability.”
The four plaintiffs, who are all visually impaired, said they had telephoned the retailers’ customer service offices to inquire about purchasing Braille gift cards and were told they were not available. But 2nd Circuit Judge Michael Park, writing for a three-judge panel, said the case was missing “any explanation of how plaintiffs were injured by the unavailability of braille gift cards.” He also noted that the lower court had correctly concluded that the ADA does not require retailers to sell Braille gift cards and can offer a “range of auxiliary aids and services” to assist visually impaired customers instead. A gift card is not considered a public accommodation under the ADA, he said.
In addition, “we cannot ignore the broader context of plaintiffs’ transparent cut-and-paste and fill-in-the-blank pleadings,” Park said. The four plaintiffs accounted for 81 of more than 200 “essentially carbon-copy” lawsuits filed between October and December 2019, with only 26 of the approximately 6,300 words in Calcano’s complaint against Swarovski differing from Dominguez’s complaint against Banana Republic. “They even contain the same typos,” Park said.
Park said the “Mad Libs style” of the complaints “further confirms the implausibility of their claims.” Murphy cited a Kohl’s store location that didn’t exist, Dominguez said he would go to Banana Republic – a clothing store – “for its food” and Calcano said he planned to shop at a specific Art of Shaving store in Manhattan that was an hour from his home in the Bronx.
“All of these plans depend on the availability of Braille gift cards even though Plaintiffs never explain why they want those cards in the first place,” Park said. To ignore the “cumulative implausibility” of the allegations “would be burying our heads in the sand.”