Hunton Employment & Labor Perspectives

Could the onslaught of anticipated accessibility litigation surrounding Braille Gift Cards in 2020 be limited by a strict construction of the ADA Title III standing requirement? Maybe so.

The cottage industry of accessibility litigation in New York was recently dealt a blow when the Eastern District of New York dismissed a serial plaintiff’s class action accessibility complaint by strictly construing the standing requirement and finding that the court lacked subject matter jurisdiction.

Emphasizing that the elements of constitutional standing “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case,” the court warned future plaintiffs in accessibility cases to carefully articulate their “injury in fact.”  This strict construction of the standing requirement under the ADA is good news for businesses hoping to dispense of frivolous accessibility claims at the motion to dismiss stage.

In Castillo v. The John Gore Organization, Inc., No. 19-cv-388, 2019 WL 6033088 (E.D.N.Y. Nov. 14, 2019), the plaintiff alleged that she was denied access to the defendant’s theater because of her disability.  Plaintiff asserted that after visiting the defendant’s website and seeing the general policy prohibiting patrons from bringing outside food into the theater, she did not purchase a ticket to a performance.  She alleged that this policy deterred her from visiting the theater because, due to her diabetes, she was required to have snacks with her at all times. Plaintiff did not allege that she ever visited or tried to visit the theater, or ever contacted the theater to ask whether it would modify this policy.  Notably, the home page of the theater’s website contained an invitation for prospective guests to inquire about accessibility and the possibility of additional assistance.

The court dismissed the complaint in full on subject matter jurisdiction grounds, holding the plaintiff lacked standing because she failed to prove the existence of an injury in fact.  Because the plaintiff never alleged that she visited the theater, or that she contacted the theater, as the defendant’s website invited her to do, she could not have had “actual knowledge” that the defendant’s outside-food prohibition would bar her access to the theater.  Further, the court found that it was not reasonable to infer that any alleged discrimination would continue because the defendant’s website expressly invited prospective guests to inquire about accessibility.  Finally, plaintiff’s “broad allegation” that she “intends to attend a similar event” at the theater as soon as the allegedly discriminatory policy is fixed failed to raise a reasonable inference that she did indeed intend to patronize the defendant’s theater in the future.

Although fact specific, the holding in Castillo may provide insight into how New York federal courts will limit the wave of accessibility lawsuits to those plaintiffs who have actually suffered an injury – discouraging serial plaintiffs and attorneys and providing some relief for businesses defending these suits.