The Nightmare Before Christmas?
It is a little-known fact that, in 1994, Blockbuster video was the first store to display pre-paid gift cards for sale. Unlike VHS rentals, the gift card industry has only grown in popularity. Gift cards from major retailers are at the top of many holiday wish lists. Considered a more polite version of cash, gift cards take the stress and guesswork out of holiday shopping. They also allow recipients to skip the dreaded “returns” line and choose the specific items, models, sizes, and colors they desire.
With the holidays approaching, gift cards have found popularity with a new group: plaintiffs’ lawyers. In late October, a small number of plaintiffs filed over 100 virtually identical class action lawsuits in New York federal courts. These lawsuits allege that retailers, restaurants, and other businesses violate Title III of the Americans with Disabilities Act and the New York City and State Human Rights Laws by failing to provide gift cards with Braille, the tactile writing system of raised dots that can be “read” by people who are blind or have low vision.
Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against disabled persons in places of “public accommodation.” Generally, businesses that provide goods or services to the public must provide disabled individuals with the same type of access to those goods and services as they provide to individuals who are not disabled, and must remove certain existing barriers to access. Although individuals may have legitimate claims under Title III—and the overall goal of increasing accessibility is laudable—the majority of these lawsuits are filed by serial litigants and a small group of attorneys who are largely apathetic about the substantive claims and, instead, focus on quick settlements for nuisance amounts. The motivation for these serial litigants is the ADA’s private enforcement incentive. Plaintiffs who prevail on their claims generally recover attorneys’ fees, expert witness costs, and other legal expenses.
The plaintiffs’ novel theories may be distinguishable from ADA claims against websites and mobile applications in a number of ways. For example, the ADA does not specifically require the use of Braille. Instead, businesses have various options to provide effective communication to individuals with disabilities. Moreover, the ADA does not require businesses to alter “inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.” These and other legal issues may provide businesses with viable defenses. However, the plaintiffs’ legal theory about requiring Braille gift cards is in its infancy. It is too early to predict whether it will gain traction and expand to other types of written materials. In the meantime, businesses should be prepared to address the variety of litigation risks under the ADA and consult experienced legal counsel to address any concerns.