On June 2, 2022, the United States Court of Appeals for the Second Circuit, which has jurisdiction over appeals from federal courts in New York State, Connecticut, and Vermont, upheld the dismissal of five lawsuits in which visually impaired plaintiffs sued regional or national chains of retail stores, including Banana Republic, Swarovski, Jersey Mike’s, and Kohl’s, for failing to carry braille gift cards.
The five nearly identical complaints allege that the plaintiffs live near the defendants’ stores, have been customers in the past, and intend to purchase gift cards when they become available in the future. The United States District Court for the Southern District of New York dismissed the plaintiffs’ ADA claims for lack of standing and, in the alternative, for failure to state a claim. On appeal, the Second Circuit affirmed the district court’s decision on the basis that the plaintiffs’ “conclusory, boilerplate allegations fail to establish standing.” More specifically, the Second Circuit found that the complaints lacked “any explanation of how Plaintiffs were injured by the unavailability of braille gift cards or any specificity about Plaintiffs’ prior visits to Defendants’ stores that would support an inference that Plaintiffs intended to return.”
Notably, this is not the first time the Second Circuit has ruled in favor of defendant businesses in ADA accessibility lawsuits on the issue of standing. Indeed, as we previously reported, the Second Circuit recently affirmed the dismissal of a complaint brought against a Holiday Inn franchisee by Owen Harty, who in recent years has filed hundreds of lawsuits targeted primarily, if not exclusively, at the hospitality industry.
The well-reasoned decision provides a useful precedent for business owners and will be helpful in defending claims not only in the Second Circuit but in other jurisdictions throughout the country.
In the unfortunate event you are served with an ADA accessibility lawsuit, please do not hesitate to contact one of the attorneys at Barclay Damon. We will continue to monitor these cases and keep you informed of any developments.
If you have any questions regarding the content of this alert, please contact Rob Thorpe, partner, at rthorpe@barclaydamon.com; Brian Whiteley, partner and Commercial Litigation Practice Group Leader, at bwhiteley@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area, Commercial Litigation Practice Area, or Hotels, Hospitality & Food Service Team.
The Labor & Employment Podcast is a weekly Barclay Damon Live podcast hosted by Ari Kwiatkowski, associate, that provides employers with important updates regarding ever-evolving state and federal labor and employment laws as well as a wide range of timely topics pertaining to labor and employment issues in the workplace. Click here to watch or listen to the Labor & Employment Podcast as well as Barclay Damon’s other podcast series: Cyber Sip and Cannabis Counselor.