In June 2022, the United States Court of Appeals for the Second Circuit decided the matter of Calcano v. Swarvoski North America Ltd. In Calcano, Plaintiffs, who are visually impaired, filed an Americans with Disabilities Act (“ADA”) lawsuit against Defendant for not carrying braille gift cards in its stores. As our readers are aware, Title III of the ADA prohibits discrimination on the basis of a disability “in the full and equal enjoyment of the goods [and] services . . . of any place of public accommodation.” The Second Circuit concluded that the district court had properly dismissed Plaintiffs’ claims for lack of standing. In addition, the Court went one step further in establishing the Second Circuit standard for adequately pleading injury in an ADA lawsuit.
For quite some time, the court system has been inundated with ADA lawsuits filed by self-appointed ADA “testers.” Typically, a “tester” – with no intent of ever setting foot in a business’s physical premises – claims a lack of accommodation in violation of the ADA after browsing on the subject business’s website and demands monetary and/or injunctive relief. With Calcano, the Second Circuit established a high bar for these ADA lawsuits to survive dismissal in the future– presumably to discourage their filing.
A Brief Background on the Calcano ADA Lawsuit
The Calcano Plaintiffs are visually impaired and rely on braille to read written materials. Because Defendant did not sell gift cards containing braille, Plaintiffs alleged that they were denied access to Defendant’s goods and services. Thus, Plaintiffs claimed, Defendant’s lack of accommodation constituted discrimination under the ADA.
In ADA lawsuits, a plaintiff typically suffers an injury in fact when, among other things, “it [is] reasonable to infer, based on the past frequency of plaintiff’s visits and the proximity of defendants’ [businesses] to plaintiff’s home, that [the] plaintiff intended to return to the subject location.” However, conclusory allegations of intent to return and proximity are not enough. A plaintiff’s risk of future harm must be “material” and “sufficiently imminent and substantial.” In Calcano, the Second Circuit decided that Plaintiffs’ claims were conclusory allegations that fell short of this pleading standard. Accordingly, the Second Circuit upheld the district court’s determination that Plaintiffs lack standing and affirmed the dismissal of the ADA lawsuit.
Important Takeaways from the Calcano Decision
Calcano firmly established that, in the context of an ADA lawsuit, a three part inquiry should be used to determine whether a plaintiff has suffered injury-in-fact:
- Whether the plaintiff has sufficiently alleged past injury;
- Whether it is reasonable to infer that the discriminatory treatment will continue; and
- Whether it is reasonable to infer, based on the past frequency of plaintiff’s alleged visits and the proximity of defendant’s businesses to plaintiff’s home, that plaintiff intends to return to the subject location.
This inquiry is meant to be fact intensive. The Second Circuit made clear that threadbare recitals and conclusory allegations parroting statutory language do not allow a plaintiff to proceed beyond the pleadings. The Second Circuit further stated that “the central inquiry is not whether a complaint pleads the magic words that a plaintiff intends to return, but if, examined under the totality of all relevant facts, the plaintiff plausibly alleges a real and immediate threat of future injury.”
Why Does Calcano Matter to your Business?
Many businesses that operate websites are all too familiar with receiving demand letters that allege violations of the ADA. Some “testers” can send out hundreds of boilerplate letters after quick visits to websites, demanding money and remedial website changes. Oftentimes, these demand letters turn into lawsuits if left unaddressed. In Calcano, the Second Circuit established a high bar for such ADA lawsuits. Although Calcano was presumably the Second Circuit’s attempt to curtail such “cookie-cutter” lawsuits, the flow remains steady.
As an aside, please note that the Second Circuit has not issued a guiding opinion on whether standalone websites should be considered places of public accommodation. However, the Southern District of New York recently held in Mejia v. High Brew Coffee that a website constitutes a place of public accommodation only if it has a connection to a physical location (i.e., a “brick and mortar” store or establishment).
Website operators must remain aware of applicable ADA requirements, as well as how to ensure accessibility compliance. To safeguard your business, it is necessary to provide appropriate accommodations to all customers. To ensure compliance and prevent ADA liability, it is essential that you consult with experienced attorneys. The attorneys at Klein Moynihan Turco regularly defend businesses whose websites have been targeted for alleged lack of disability accommodation.
If you are interested in learning more about this topic or require defense in connection with issues involving website accessibility, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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