On Friday, April 23, 2020, Judge Gregory Woods of the Southern District of New York issued a first of its kind decision rejecting the argument that ADA Title III requires business that offer gift cards to also offer them in Braille. Dominguez v. Banana Republic, LLC, 1:19-cv-10171-GHW (S.D.N.Y. April 23, 2020).  The decision is the first in almost 250 nearly identical cases filed in the Southern and Eastern Districts of New York since the fourth quarter of 2019, and may be persuasive authority for other judges faced with similar claims. In the past few days, Judge Woods dismissed half a dozen Braille gift card cases based on the same legal theory, explaining that there are “virtually no difference[s]” between the cases, dismissing the claims “for all of the reasons identified in Banana Republic.”

The plaintiff’s barebones complaint was founded on allegations that he called Banana Republic’s customer service and asked whether it sold gift cards containing Braille. He was told it did not, and his lawsuit soon followed.

First, Judge Woods dismissed the complaint for lack of standing. In order for a plaintiff to have standing to sue under Title III of the ADA, he or she must at least allege a likelihood of using the goods and service of the business in the reasonably near future. The Court reasoned that the plaintiff’s “all-too-generic” complaint had failed to establish an injury-in-fact because he did not demonstrate that he intended to return to Banana Republic, so he was not likely to suffer an injury in the future if Banana Republic did not offer Braille gift cards.

Second, Judge Woods rejected the argument that gift cards are goods that Title III requires to be accessible. Judge Woods observed that the ADA mandates “access to places of public accommodation—not the type of merchandise a place of public accommodation sells,” explaining by way of example that, “a bookstore could not prohibit a visually impaired person from entering its store, but it need not ensure that the books it sells are available in both Braille and standard print.”

Third, Judge Woods rejected the plaintiff’s analogy between gift cards and websites which must be made accessible to individuals with disabilities. He determined that gift cards, unlike websites where goods and services can be purchased, are not “places of public accommodation” because they are not places where goods can be purchased. Accordingly, the Court determined that including gift cards, which are “small slabs of plastic,” within the definition of places of public accommodation, “would require a rewrite of Title III entirely” and not merely an interpretation of the statute as plaintiff contended.

Finally, because the plaintiff had never requested an “auxiliary aid,” the Court rejected his claim he had been denied access to Banana Republic’s goods and services. Under the ADA, places of public accommodation must assist individuals with disabilities by offering auxiliary aids when necessary to provide access to the business’s goods and services, but the individual must first make the request. The Court reiterated that the type of effective auxiliary aid is the business’s decision. So, for example and by way of analogy, “a restaurant would not be required to provide menus in Braille . . . if the waiters in the restaurant are made available to read the menu.” The facts alleged in the plaintiff’s complaint about his call to Banana Republic did not establish that he requested any auxiliary aid.

Judge Woods also rejected the plaintiff’s arguments that gift cards are like ATM cards or cash, which implicate privacy concerns and are subject to specific regulations.

In dismissing the plaintiff’s complaint, the Court concluded that “[c]omputers have made a lot of things in life easier. Copy-and-paste litigation is one of them. The pitfalls of such an approach is evident here where, among other things, Plaintiff’s opposition responds to arguments never made by its opponent in its motion and failed to even correctly identify what Defendant sells. See, e.g., Opp‘n at 3, 15, 16, 20 (referring to Banana Republic as a “food establishment”). Although it features the fruit in its name, Banana Republic does not sell bananas.”

Banana Republic is a good, well-reasoned decision supported by long-standing regulations promulgated by the U.S. Department of Justice and related agency guidance. Accordingly, the decision is likely to serve as persuasive authority for other judges in deciding other motions to dismiss in nearly identical gift card cases.