Blind customers do not have standing in Braille gift card lawsuit, Court of Appeal rules

A federal appeals court ruled Thursday that blind customers who sued multiple stores for not selling Braille gift cards failed to establish their standing to bring their challenges.

Five visually impaired people sued Swarovski, Banana Republic and three other retailers separately, alleging that the stores’ failure to offer Braille gift cards violated the Americans with Disabilities Act. The appeal argued that the gift cards qualified as public services and accommodations under the Civil Rights Act of 1990.

But the United States Court of Appeals for the Second Circuit said customers’ claims that they are hurt because they live near stores and plan to return if they sell braille cards were too vague. The plaintiffs’ nearly identical complaints also worked against them, Judge Michael Park wrote for the panel.

“We cannot ignore the larger context of plaintiffs’ cut-and-paste and fill-in-the-blank transparent pleadings. The four plaintiffs before us filed 81 of more than 200 essentially carbon copy complaints between October and December 2019. All of the complaints use identical language to state the same conclusive allegations… They even contain the same typos,” it reads. in opinion. “This backdrop of plaintiffs’ Mad-Libs-style complaints further confirms the implausibility of their claims of harm.”

Chief Justice Debra Ann Livingston and Justice Raymond Lohier were also on the panel.

Marcos Calcano, Yovanny Dominguez, Braulio Thorne and James Murphy had their claims against five separate stores dismissed by U.S. District Judge Gregory Woods. In upholding the lower court’s order, the New York-based Second Circuit panel said the plaintiffs had failed to sufficiently allege that they intended to return to stores and face “a real threat and immediate future injury”.

Judge Lohier, in a lengthy agreement, said the complaints should be dismissed for failing to state a cause of action under the ADA. But, Lohier disagreed with the panel’s finding on standing and accused the majority of substituting their own “tastes and preferences” for those of the plaintiffs when weighing the claims.

The majority felt it was implausible that Calcano, who sued Art of Shaving and lives in the Bronx, would drive up to an hour at a Manhattan location to buy shaving supplies. However, Lohier said that was not a fair conclusion.

“If Calcano were to seek out products sold only at this store, it is hardly implausible that he would again be able to travel to the store of his choice,” Lohier wrote. “There is no reason to doubt the sincerity of the plaintiffs’ assertions, other than by reference to his own subjective tastes or preferences. By questioning claimant preferences, my colleagues are going too far. Describing with obvious disgust the plaintiffs’ litigation history and their status as repeat plaintiffs for ADA lawsuits, they rely not so much on experience or common sense as on suspicion of the plaintiffs’ motives for suing.

Morgan, Lewis & Bockius represented Swarovski and Banana Republic, Steptoe & Johnson represented Kohl’s and Jackson Lewis represented Jersey Mikes and the art of shaving. The New York-based law firms of G. Oliver Koppell & Associates and Gottlieb & Associates represented the plaintiffs.

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