Calcano v. Swarovski N. Am. Ltd.
36 F.4th 68
| 2d Cir. | 2022Background:
- Four visually impaired plaintiffs sued five retail chains for not offering braille gift cards, alleging they live near the stores, previously patronized them, and intend to buy braille cards once available.
- Complaints were near-identical, boilerplate, and part of a group of >200 similar suits filed in late 2019; plaintiffs alleged telephone inquiries confirmed braille cards were unavailable and no alternative auxiliary aids were offered.
- Defendants moved to dismiss for lack of Article III standing and failure to state an ADA claim; the district court dismissed the amended complaints without prejudice, gave leave to replead, and ultimately entered judgment when plaintiffs did not amend.
- The Second Circuit reviewed de novo and affirmed dismissal on standing grounds, holding plaintiffs’ conclusory proximity/prior-visit/intent-to-return allegations failed to plausibly show a concrete, imminent risk of future injury.
- The district court had also ruled (alternatively) that retailers need not alter their mix of goods to provide braille cards and that gift cards are not themselves places of public accommodation; the Second Circuit did not reach those merits rulings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek injunctive relief under Article III | Plaintiffs alleged past deterrence, proximity, prior patronage, and an intent to immediately purchase braille gift cards when offered | Allegations are boilerplate and conclusory; plaintiffs failed to plead facts showing a concrete, imminent risk of future harm | Court: Dismissed for lack of standing — conclusory "intent to return" and vague proximity/prior-visit allegations insufficient to plausibly allege imminent injury |
| Whether ADA requires retailers to sell braille gift cards / failure to state a claim | Plaintiffs: absence of braille cards and lack of auxiliary aids denies equal access to goods/services | Retailers: ADA does not require altering inventory to include special/accessible merchandise; gift cards are goods (not public accommodations) and other auxiliary aids could suffice | District court held retailers need not sell braille cards and gift cards are not places of public accommodation; Second Circuit affirmed on standing and did not decide the merits |
| Concurrence's separate view on standing and ADA scope | Concurrence: all plaintiffs except Kohl’s plausibly alleged standing; gift cards can be a means of access, so Title III can require auxiliary aids unless undue burden | Defendants: same as above on inventory/auxiliary-aids arguments | Concurrence would find standing (except for Kohl’s due to factual inaccuracy) but agreed dismissal was proper because complaints failed to plausibly allege defendants did not offer effective alternative auxiliary aids |
Key Cases Cited
- Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 (2d Cir. 2013) (adopted framework assessing intent to return based on past visits and proximity for ADA injunctive-relief standing)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (requires concrete, particularized harm for Article III standing; forward-looking risk must be sufficiently imminent)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing elements: injury in fact, causation, redressability)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard; conclusory assertions not credited)
- Camarillo v. Carrols Corp., 518 F.3d 153 (2d Cir. 2008) (ADA standing guidance; deterrence as injury)
- Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002) (deterrence theory: a disabled person deterred from patronizing a facility suffers an injury in fact)