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Gift Cards To Become The New Battleground Under The ADA

In recent years, litigation under Title III of the Americans with Disabilities Act (“ADA”) has shifted from allegations concerning lack of architectural accessibility to physical locations (i.e., brick-and-mortar stores and restaurants) and instead focused on the provision of auxiliary aids and services to accommodate the needs and ensure effective communication to consumers with disabilities. With emerging technologies, much of this focus has been on making sure other public-facing portals – such as websites and mobile applications – remain accessible to all consumers.

Recently, however, a new battleground is developing over the required scope of accommodations for the visually-impaired. Since the end of October 2019, over 100 lawsuits have been filed alleging that restaurants and retailers offering gift cards have violated the public accommodation provisions of the ADA by failing to include Braille on the cards. See Victor Lopez, et al. v. Krispy Kreme Doughnut Corporation, Case No. 1:19-cv-09859 (S.D.N.Y. Oct. 24, 2019); These class action lawsuits have targeted businesses of all sizes and across multiple industries, including retail, food services, and entertainment industries, and allege that for consumers who are blind or visually-impaired, gift cards are indistinguishable from other cards and deny them the ability to, among other concerns, ascertain the value of the card, distinguish between cards, or review other information contained on the card (such as the terms of use, restrictions on use, etc.).

To bring it within the scope of the ADA, the allegations assert that businesses use gift cards as a form of communication and that, akin to websites and other sources of information, they must be designed in a manner to afford equal access by providing auxiliary aids and services necessary for effective communication. This includes, among other things, identifying the name of the merchant, the denomination of the gift card, and its packaging. The complaints further claim that, by failing to provide the necessary information in Braille on the gift cards, consumers are deterred from visiting the physical locations themselves. Ultimately, the proposed class action lawsuits allege that these retailers deny “full and equal access” to visually impaired consumers and seek court intervention requiring companies to change their policies and to unspecified compensatory damages for the named plaintiffs and “all other persons similarly situated.”

Whether these claims will be successful in court, however, remains to be seen. While these complaints appear to have numerous hurdles not present in earlier website accessibility and physical location lawsuits, defending these lawsuits will test novel legal issues. Unlike with website accessibility, on which the Department of Justice has issued an express position, there is no existing DOJ guidance with respect to Braille on gifts cards or whether gift cards are considered communications that require accessible means.

Various defenses would appear to be available to businesses against these allegations. Under the ADA, businesses are not necessarily obligated to make specific accommodations if other alternative means are available. Restaurants, for example, are not obligated to provide menus in Braille so long as a team member is available to offer assistance in reading the menu or navigating a touchscreen fountain drink machine. Another defense strategy that has been successful in other ADA lawsuits would be for the defendants to take preemptive remedial action, which effectively moots the plaintiffs’ claims (i.e., making the changes on the website to make them accessible).

Another issue worth noting is the current forum for these lawsuits. The first round of complaints were filed in New York federal courts and allege not only violations of Title III of the ADA but also pertinent state laws including the New York State Human Rights Law and the New York City Human Rights Law. The filing of the complaints in New York federal court, though, appear based largely on the convenience to the firms filing the suits and favorable Second Circuit federal case law and state law precedent towards disability claims. California, with its pro-consumer statutes including the California Unruh Act and the Consumer Legal Rights Act, would seem to be a prime target for the second wave of these lawsuits for California-based litigants. These statutes permit recovery for not only actual and compensatory damages to the plaintiffs but also punitive and treble damages, if warranted.

The implications of these lawsuits also go beyond gift cards. Other cards that carry balances and also allegedly convey information are potentially at risk for copycat lawsuits. On its face, these other types of cards that do not imprint Braille – such as debit cards or fare cards – would seemingly be subject to the same accommodation concerns as those raised in these lawsuits.

As with the steady increase in website accessibility lawsuits in recent years, a large number of similar complaints will likely follow as the law develops in this area. With favorable Second Circuit and Ninth Circuit precedent on accessibility concerns and a number of novel legal issues, this first wave of lawsuits is likely just the beginning.