On June 2, 2022, the Second Circuit issued a decision in Calcano et al. vs. Swarovski North America Ltd., et al., upholding the dismissal of five consolidated cases brought by visually impaired plaintiffs who alleged that various retail defendants were required to provide Braille gift cards under the Americans with Disabilities Act (ADA). The five consolidated appeals lawsuits were filed between 2019 and 2020, when New York’s Southern and Eastern Districts were inundated with hundreds of similar complaints. Many of these complaints (including the five consolidated appeals) were dismissed by the district courts due to the plaintiffs’ lack of standing and/or inability to bring a claim under the ADA. Those that remained unresolved at the time of the joined appeals were stayed pending the outcome of the Court of Appeals for the Second Circuit. The calcan The decision was therefore eagerly awaited by the plaintiffs and the defendants.
The majority opinion of the Second Circuit upheld the dismissal solely on the basis of lack of standing and did not address the issue of whether the plaintiffs adequately argued that the defendants failed to accommodate them in under the ADA because the defendants failed to provide braille gift cards. In a concurring opinion, however, Judge Lohier found that the dismissal on the merits was appropriate.
In coming to its decision, the majority took note of each claimant’s identical assertions that it resides “nearby” the defendants’ businesses; was a “customer of the defendant [location] on prior occasions” and “intends to immediately purchase at least one gift card from the defendant as soon as the defendant sells store gift cards accessible to the blind” were insufficient to establish standing. The majority concluded that the plaintiffs do not allege factual harm because their “conclusive claims of intent to return and proximity” were too vague to establish that they faced “a material risk of future harm. which is “sufficiently imminent and substantial”. The majority also identified the plaintiffs’ assertions as repeating language from an earlier ADA Title III ruling that dealt with standing, and therefore concluded that their assertions were no more than a “legal conclusion[s] … framed as a factual allegation[s].”
Judge Lohier’s concurring opinion assessed the plaintiffs’ position with less rigor and placed less emphasis on “the plaintiffs’ intention to return” to the defendants’ activities. The agreement found all but one of the claimants to have standing and then went on to consider the merits of the claims. The concurring opinion did not dispute the plaintiffs’ assertion that gift cards should be accessible. Indeed, the agreement concluded that a gift card is a “good” and a “means of access to goods and services” under Title III of the ADA and therefore public accommodations must provide ” adequate auxiliary aids and services to ensure that blind customers can make good use of the gift cards.The agreement, however, disputed the plaintiffs’ claim that the defendants failed to provide adequate auxiliary aids because they had not provided braille gift cards. The settlement found the plaintiffs’ allegation conclusive that “[the defendants] do not provide ancillary assistance with respect to gift cards” did not state the cause of action. In support of this conclusion, the agreement noted that the plaintiffs did not plausibly allege (1) why other types of auxiliary aids – such as the aid of a store clerk – do not would not allow you to enjoy the benefits of gift cards; and (2) that the defendants did not offer any other aids that could enable them to use gift cards.
calcan is a welcome move for companies that have witnessed a relentless onslaught of public hosting lawsuits. The decision is an example of the opportunities available to companies to successfully defend these public accommodation lawsuits and the potential to eliminate or significantly reduce the number of lawsuits filed by serial plaintiffs. calcan demonstrates the vulnerability faced by plaintiffs in establishing a real and imminent threat of harm to have standing to sue under the ADA where plaintiffs file hundreds of complaints with nearly identical boilerplate allegations. While the Second Circuit upheld the district court’s dismissal of these lawsuits on the more limited basis that plaintiffs lacked standing, Judge Lohier’s concurring opinion provides an insightful analysis of why plaintiffs have not declared an ADA claim as a matter of law. Over time, we hope to see whether district courts, adjudicating on a derogatory motion, adopt Justice Lohier’s analysis of a company’s long-standing prerogative to choose from among effective and appropriate ancillary aids and services to put its goods and services available to people with disabilities. The complaints filed in these cases essentially allege that the companies failed to provide Braille gift cards, ancillary assistance that the complainants would have wanted even if they did not request it. Based on Department of Justice (DOJ) regulations and guidelines, Judge Lohier disagreed that a Braille gift card was the only appropriate ancillary aid in the circumstances alleged in the complaints.
It also remains to be seen whether district courts apply Second Circuit reasoning, including Justice Lohier’s concurring opinion, to website accessibility lawsuits, another type of public hosting claim that has slandered businesses over the past decade. Website accessibility lawsuits share many of the same shortcomings as gift card lawsuits and are filed by the same plaintiffs (and their attorneys).