As we previously reported, from the end of 2019 through the first few months of 2020, a group of serial ADA plaintiffs barraged New York federal courts with over 200 boilerplate lawsuits alleging that retailers and other businesses violated the ADA and New York state and city laws by failing to offer for sale gift cards in Braille. In 2020, Judge Woods of the SDNY dismissed four of these cases, and plaintiffs appealed to the Second Circuit.
On June 2, 2022, the U.S. Court of Appeals for the Second Circuit affirmed the dismissals in a scathing decision that expresses the Court’s ire with the hundreds of boilerplate lawsuits that have inundated New York federal courts in recent years. The decision further makes clear that plaintiffs who do not allege specific facts to establish their standing to sue will have their claims dismissed — a theme that continues from the Second Circuit’s recent decision in Harty v. West Point Realty. In that case, the Court held that ADA plaintiffs must allege “downstream consequences” of being deprived information on a website to establish an Article III standing.
In the four cases that were consolidated into Calcano v. Swarovski North America Ltd., each plaintiff allegedly called the customer service offices at the respective businesses, asked whether the business sold gift cards in Braille, and was told that they did not. Each plaintiff also alleged that they live near defendants’ stores, that they had been customers there “on prior occasions,” and that they would “immediately” purchase Braille gift cards once they became available.
The Second Circuit said these allegations were insufficient to show that plaintiffs faced a “material risk of future harm” that is “sufficiently imminent and substantial” to confer standing to sue under Title III of the ADA. “[T]he central inquiry is not whether the complaint pleads the magic words that a plaintiff ‘intends to return,'” and therefore faces an imminent harm, but rather whether, under the “totality of all relevant facts,” plaintiff plausibly alleged a real and immediate threat of future injury (emphasis added).
In concluding that plaintiffs did not demonstrate a real and immediate threat of future injury, the Court noted the following:
- Plaintiffs failed to allege any details about their past visits or the frequency of those visits, including what stores they visited, what they purchased, or even why they want to purchase Braille gift cards so urgently that they intend to do so “immediately;”
- In only one out of the four cases did plaintiffs provide an accurate address for the defendant’s retail location (in one instance erroneously reciting a store address in Manhattan when defendant did not have a location anywhere in that borough). And in the one complaint where the business address was correctly stated, plaintiff alleged that his residence in the Bronx was “close” to the subject store near Columbus Circle in Midtown Manhattan, even though that trip that could be up to an hour away; and
- Plaintiffs’ jurisdictional allegations simply “parrot[ed]” the Second Circuit’s language in a prior ADA Title III decision, which the court deemed “legal conclusion[s] couched as factual allegations.”
Most importantly, in evaluating the plausibility of plaintiffs’ allegations, the court refused to ignore the broader context of their litigation tsunami — citing that each of the four litigants were responsible for filing 81 out of the over 200 “essentially carbon copy complaints.” In two of Calcano’s complaints, the court noted that only 26 of approximately 6,300 words, consisting of party names, dates, addresses and states of incorporation, were different, with both complaints including the very same typos.
Along the same vein, the court went further:
This backdrop of Plaintiffs’ Mad-Libs-style complaints further confirms the implausibility of their claims of injury. As noted above, Murphy asserts that he would return to a Kohl’s that doesn’t exist. Dominguez seeks to go back to Banana Republic for its food. Thorne doesn’t even allege where he lives, making an assessment of proximity to a Jersey Mike’s impossible. Calcano plans to travel from somewhere in the Bronx to Columbus Circle for a shaving supply gift card. And all of these plans depend on the availability of braille gift cards even though Plaintiffs never explain why they want those cards in the first place. Although we might excuse a stray technical error or even credit an odd allegation standing alone as an idiosyncratic preference—to do so here in light of the cumulative implausibility of Plaintiffs’ allegations would be burying our heads in the sand. “[J]udicial experience and common sense” suggest that the errors, oddities, and omissions in the complaints are a result of their mass production, and they render each Plaintiff’s cookie-cutter assertion of standing implausible.
We note that in affirming the dismissal of these four cases on standing grounds, the Second Circuit majority did not reach the question of whether gift cards are covered by Title III of the ADA. Judge Lohier, however, issued a concurring opinion that sharply disagreed with the majority’s reasoning on standing, as well as the lower court’s determination that a gift card is a “good” that is not required to be accessible under the ADA.
On this Blog, we have previously questioned whether the year-over-year increase in ADA Title III filings has been due to an uptick in discrimination, or more likely, because more lawyers elect to file more claims. From the defense perspective, it is nice to see the Second Circuit majority in Calcano refusing to “bury . . . [their] heads in the sand.”