On June 2, 2022, the Second Circuit issued a decision in Calcano, et al. v. Swarovski North America Ltd., et al., affirming dismissal of five consolidated cases brought by visually impaired plaintiffs who alleged various retail defendants must provide braille gift cards under the Americans with Disabilities Act (ADA).  The five lawsuits consolidated on appeal were filed between 2019 and 2020, when the Southern and Eastern Districts of New York were flooded with hundreds of similar complaints.  Many of these complaints (including the five consolidated appeals) were dismissed by the district courts based on the plaintiffs’ lack of standing and/or their failure to state a claim under the ADA.  Those that remained unresolved at the time of the consolidated appeals were stayed pending the outcome at the Second Circuit Court of Appeals.  The Calcano decision therefore has been highly anticipated by plaintiffs and defendants alike.

The Second Circuit’s majority opinion affirmed dismissal based on lack of standing only and did not reach the issue of whether the plaintiffs adequately plead that defendants failed to accommodate them under the ADA because defendants did not provide braille gift cards.  In a concurring opinion, however, Judge Lohier, opined that dismissal on the merits was appropriate.

In reaching its decision, the majority noted each plaintiff’s identical assertions that he resides “in close proximity to” defendants’ businesses; has been a “customer at Defendant’s [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 that are accessible to the blind” were insufficient to establish standing.  The majority found the plaintiffs did not allege they suffered an injury in fact because their “conclusory allegations of intent to return and proximity” were too vague to establish that they faced “a material risk of future harm” that is “sufficiently imminent and substantial.”  The majority also identified the plaintiffs’ assertions as parroted from language in a prior ADA Title III decision that addressed standing, and therefore found their assertions to be nothing more than “legal conclusion[s] … couched as factual allegation[s].”

The concurring opinion by Judge Lohier assessed plaintiffs’ standing less stringently and with less of a focus on plaintiffs’ “intent to return” to the defendants’ businesses.  The concurrence found all but one plaintiff established standing and went on to address the merits of the claims.  The concurring opinion did not dispute plaintiffs’ claim that gift cards must be accessible.  Indeed, the concurrence concluded a gift card is a “good” and “means of access to goods and services” under Title III of the ADA and that places of public accommodation therefore must provide “adequate auxiliary aids and services to ensure that blind customers can make meaningful use of gift cards.”  The concurrence did, however, dispute plaintiffs’ claim that defendants failed to provide an adequate auxiliary aid because they failed to provide braille gift cards.  The concurrence found plaintiffs’ conclusory allegation that “[the defendants] do not offer auxiliary aids with respect to gift cards” failed to state cause of action.  In support of this conclusion, the concurrence noted plaintiffs failed to plausibly allege (1) why other types of auxiliary aids – such as a store clerk’s assistance – would not permit them to enjoy the benefits of the gift cards; and (2) that defendants did not offer other aids that might enable them to use gift cards.

Calcano is a welcome decision for businesses who have seen an unrelenting onslaught of public accommodation lawsuits. The decision is an example of the opportunities businesses have to successfully defend these public accommodation lawsuits and the potential to eliminate or significantly reduce the number of lawsuits by serial plaintiffs.  Calcano demonstrates the vulnerability plaintiffs encounter to establish a real and imminent threat of harm to have standing to sue under the ADA where the plaintiffs file hundreds of complaints with nearly identical boilerplate allegations. While the Second Circuit affirmed the district court’s dismissal of these lawsuits on the more limited basis that plaintiffs lacked standing, the concurring opinion by Judge Lohier provides an insightful analysis into why the plaintiffs did not state an ADA claim as a matter of law.  In the fullness of time, we hope to see whether district courts when deciding a dispositive motion adopt Judge Lohier’s analysis concerning a business’s long-held prerogative to choose among effective, appropriate auxiliary aids and service to make its goods and services available to disabled individuals.  The complaints filed in these cases essentially allege that the businesses did not provide braille gift cards, an auxiliary aid the plaintiffs allegedly wanted even though they did not request it.  Based on Department of Justice (DOJ) regulations and guidance, Judge Lohier disagreed that a Braille gift card was the sole appropriate auxiliary aid in the circumstances alleged in the complaints.

What also remains to be seen is whether district courts apply the reasoning of the Second Circuit, including Judge Lohier’s concurring opinion, to website accessibility lawsuits, another type of public accommodation claim that has maligned businesses for the past decade.  Website accessibility lawsuits share many of the same deficiencies as the gift card lawsuit and are filed by the same plaintiffs (and their attorneys).