The world of Americans With Disabilities Act litigation has been pondering what the "next wave" of serial lawsuits would entail. The first was, and continues to be – albeit at a much slower pace – lawsuits aimed at the purported inaccessibility of brick-and-mortar places of public accommodation (stores, restaurants, hotels, etc). The next wave was, and continues to be, lawsuits aimed at websites. We now know the next wave – and it's a tidal wave: litigation aimed at businesses that offer gift cards for sale.
In the past three weeks alone, over 100 lawsuits have been filed in the Southern and Eastern Districts of New York against retailers alleging that businesses violate the ADA by not making gift cards available in braille or with braille packaging. New lawsuits continue to be filed on a daily basis. The lawsuits allege that the plaintiffs are denied equal access to gift cards because gift cards are not "fully accessible to and independently usable by" the individuals with vision impairments.
Whether the failure to provide gift cards in braille or with braille packaging is actually an ADA violation has yet to be litigated or determined; neither the federal courts nor the U.S. Department of Justice has addressed this issue. Hence, the most recent wave of litigation where plaintiffs' attorneys are betting that businesses would rather pay to resolve the matter early rather than fund litigation to determine these novel issues.
This new wave of lawsuits substantially increases the litigation risk to any business that offers gift cards. Like with website litigation, the merits of these suits will likely not be established until the first wave of defendant-businesses decide that this is a fight worth funding. In the meantime, all businesses should evaluate whether the cost of offering braille gift cards and packaging outweighs the potential cost and exposure from ADA gift card litigation.
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