December 9, 2019

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The Eastern District of New York Provides Businesses an Early Holiday Gift in Strictly Construing Standing Requirements in ADA Title III Case

For businesses growing weary of the seemingly perpetual wave of serial ADA claims (e.g., website accessibility; gift card accessibility), thanks to a recent decision issued by a federal judge in the U.S. District Court of the Eastern District of New York (“EDNY”), some may believe that “Christmas came early.”  Last week, EBG achieved an impressive victory, obtaining a complete dismissal of a serial plaintiff’s class action complaint in the case Castillo v. The John Gore Organization.

In Castillo, plaintiff, a King’s County resident, who asserted that she has diabetes, alleged that she was denied access to defendant’s Boston theater because of her disability.  Specifically, she asserted that “in or around December 2018,” she visited the defendant’s website, allegedly to purchase a ticket to a performance; however, after she saw the theater’s general policy prohibiting patrons from bringing outside food into the theater, she did not do so.  Plaintiff contended that because she required specific snacks with her at all times, defendant’s policy “deterred” her from visiting the theater.  Notably, she did not allege that she ever contacted the theater to ask whether it would modify its policy.  Tellingly, this was notwithstanding the fact that the home page of the theater’s website contained an express invitation for visitors to contact the theater with any accessibility questions.  If the general nature of these allegations sounds familiar to you it is because over the past eighteen months similar claims were filed by the plaintiff and/or her counsel in New York state and federal courts against a significant number of theaters, arenas, and stadiums.

The court dismissed the complaint in full on subject matter jurisdiction grounds, holding that plaintiff lacked standing to pursue her federal, state, and city claims because she failed to plead that she suffered any injury, or that she would suffer any future harm.  The court reinforced that the elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case.”

The court held that plaintiff failed to allege that she had ever visited, or tried to visit the theater, and accordingly, she lacked “actual knowledge” of the alleged barrier, rendering her unable to demonstrate that she suffered any injury.  The court rejected plaintiff’s attempt to lower the pleading standard by relying on the ADA’s futility doctrine – which provides that an individual with a disability does not have to engage in a futile gesture where that person has notice that the company does not intend to comply with the ADA.  The court also held that plaintiff failed to show that she would suffer any future harm, finding her “broad allegation” that she intends to patronize the theater once the alleged access barriers are remedied, insufficient to demonstrate an intent to return.

While the holding in Castillo is, of course, fact-specific, it is yet the latest indication that – perhaps growing as tired of serial ADA claims as businesses are – New York federal courts are increasingly strictly enforcing the standing requirements that plaintiffs must meet to maintain Title III actions. This trend may prove very telling as we expect early 2020 to be ripe with businesses mounting challenges to the newest mass filing of lawsuits asserting that business failed to provide Braille gift cards.

©2019 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Joshua A. Stein, epstein becker green, ada, labor, employment, law, litigation
Member

JOSHUA A. STEIN is a Member of the Firm in the Labor and Employment practice and co-chairs the firm's ADA and Public Accommodations Group, in the New York office of Epstein Becker Green. Mr. Stein’s practice focuses on advising businesses on compliance with all aspects of the Americans with Disabilities Act (“ADA”), including the ADA Amendments Act of 2008, the 2010 ADA Standards for Accessible Design, and Sections 504 and 508 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as well as the Family Medical Leave Act (“FMLA”). He represents clients from numerous...

212-351-4660
Shira M. Blank, Employment Related Litigation, Labor Attorney, Epstein Becker Law firm
Associate

Shira M. Blank is an Associate in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Ms. Blank:

  • Represents clients in employment-related litigation on a broad array of matters, including claims of discrimination, sexual harassment and hostile work environment, retaliation, wrongful termination, whistleblowing, and wage and hour claims, among others, in state and federal courts and before various administrative agencies

  • Advises clients on all aspects of the employment relationship, including avoidance of litigation, employee discipline and termination, employment contracts and separation agreements, wage and hour compliance, internal investigations, layoffs, reductions in force, and compliance with federal, state, and local statutes

212-351-4694