November 19, 2019

November 18, 2019

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As the Holidays Approach, the Latest Wave of ADA Cases Challenge the Absence of Braille Gift Cards

While the seemingly endless wave of website accessibility cases filed by serial plaintiffs shows no signs of abating (a situation not helped by the United States’ Supreme Court’s denial of Domino’s Petition for Certiorari last month), those who follow accessibility law and the businesses who have been deeply affected by the relentless barrage of serial plaintiffs’ claims, have been waiting for the inevitable “next big thing” that the plaintiff’s bar would pursue en masse under Title III of the ADA.

On Thursday, October 24, we learned the answer when a new wave of lawsuits began to flood the dockets of the New York federal courts.  These lawsuits are styled as putative class actions on behalf of individuals who are blind or have low vision, and allege that the defendant companies (spanning industries including retail and hospitality) violate the ADA, the New York State Human Rights Law, the New York City Human Rights Law and the New York State Civil Rights Law by failing to provide braille gift cards for purchase.  In the complaints, the plaintiffs uniformly allege that they are blind, that they contacted the defendant company to inquire as to whether they provide gift cards in braille, and when the companies responded that they did not offer such a product, they commenced the lawsuit.

Since October 24, over a hundred nearly identical lawsuits have been filed, and continue to be filed daily, by a combination of the same named plaintiffs and law firms in both the Southern and Eastern Districts of New York.  It should come as little surprise that these are the same players who have been blitzing the courts with website accessibility lawsuits over the last several years.  Indeed, in many instances these plaintiffs or their counsel had previously targeted the same companies for their websites, and filed lawsuits asserting that the companies’ websites were inaccessible to individuals who are blind, or have visual impairments.  In some instances, the companies were sued by the exact same plaintiff who had previously sued them for their allegedly inaccessible websites.

In our view, these cases stretch well beyond the clearly established reach of Title III and fly in the face of a variety of statutory, regulatory, and precedential support.  Moreover, as those who have followed our blogs are aware, the Southern and Eastern Districts of New York issued a number of decisions in recent months openly demonstrating their fatigue with the repeated website accessibility lawsuits. Please see our previous blog posts: June 6 and April 12.  We suspect that this latest barrage will do little to improve their mood; particularly where a number of compelling defenses will be available to companies who are tired of settling accessibility matters. 

©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