This Week in Accessibility: Initial Ruling in Braille Gift Card Cases

Dominguez v. Banana Republic — SDNY says lack of Braille gift cards in a retail setting NOT an ADA violation

Last October, the law firms that brought you a significant number of website accessibility lawsuits moved into litigating over the lack of Braille on gift cards. Over 200 suits were filed in those law firm’s home jurisdiction, the Southern District of New York (SDNY).

Last week, the SDNY delivered a written ruling in the first of these lawsuits, Dominguez v. Banana Republic.

Takeaway points

1. The SDNY is not enamored with the approach by the plaintiff’s firm using the words “flooded” and “meritless arguments” in the case summary to describe these and other lawsuits that they have filed. Additionally, the court used relatively strong language (by legal standards) calling out the weakness in cookie-cutter lawsuits in general, and this case in particular.
2. The Dominguez court found that Title III of the American with Disabilities Act of 1990 (“ADA”), 42 USC. § 12181, et seq., does not require retailers to create specialty goods for the visually impaired.
3. The reason why this case was first to be decided was that Banana Republic moved for the lawsuit to be dismissed, which the court granted. This type of Federal Rules of Civil Procedure motion typically occurs in the very early stages of the suit. Since this case was published, SDNY has dismissed several other cases, citing this one as precedence.

In dismissing this case, the court found that the plaintiff did not meet the third prong of the ADA standing test in SDNY because “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 future.”

As I previously discussed in Diaz v. Kroger and Mendez v. Apple, the law firms filing these suits appear to be exceptionally lazy. Their approach in drafting complaints is very cookie-cutter, including leaving in the names of previous plaintiffs store and product names in new suits. The court here described the level of detail as “generic, conclusory statements [that] are plainly insufficient” and further stated “copy-and-paste … weakness is fully on display.”

The approaches in these lawsuits are so similar from case to case that I can now identify with about 90 % certainty which firm filed what lawsuit without ever seeing the law firm’s name. Plaintiff’s firm did not go into the effort to “plead in the specific” — providing details about that are specific to the plaintiff’s case and the plaintiff’s intentions. This is the third (and hopefully not last) time that approach has bitten the law firm in the behind because the court specifically cited the lack of details as the reason why the Dominguez case was being tossed.

Now, the SDNY court could have stopped there. Once a plaintiff has lost standing, there is no need to review any facts in the case at all. But apparently this judge wanted to make a point. Because they added:

4. Even if the plaintiff had standing, the court found that the ADA does not require a business to stock specialty goods for people with disabilities. In coming to this conclusion, the Dominguez court cited a 9th Circuit case in stating, “this language does not require provision of different goods or services, just nondiscriminatory enjoyment of those that are provided.” The Dominguez court further declined to extend the traditional definition of “goods” to include gift cards.

“Just as a bookstore need not create Brailled versions of books that it ordinarily sells to comply with Title III, the Code of Federal Regulations does not require Banana Republic to “design, implement, distribute and sell store gift cards integrated with the Defendant’s retail stores that are accessible to blind and vision-impaired individuals.”

5. The Dominguez court found that gift cards are neither places of public accommodation nor are they general places. “Cruise ships are places. Gift cards are not.”

Where do we go from here

Two tiny data point differences and the outcome could have been *completely* different.

1. The lawyers must start pleading with specificity if they ever hope to win another case in SDNY. Four sentences on how Dominguez wanted to be a life-long Banana Republic customer would have taken the lack of standing question off the table. Twenty minutes of work, and the court can no longer dismiss on those grounds.
2. Many, MANY vendors do gift card “deals” at the end of the year — buy four gift cards get one for yourself free is an incredibly common offer to see around the winter holidays. If a plaintiff sued citing these facts, and the court believed that deal wasn’t equally available to someone who is blind because the cards aren’t Brailled, this could be a whole different ball game next time around.

And, there will be a next time.