Lopez v. Arby's Franchisor, LLC

Background

Victor Lopez, on behalf of himself and other similarly situated people, sued Arby’s Franchisor, LLC. Lopez alleged that Arby’s violated Title III of the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law by selling gift cards without Braille or another auxiliary aid for blind customers. He sought compensatory damages, attorney’s fees, a permanent injunction requiring accessible gift cards, and certification of a proposed class.

The complaint alleged that Lopez is blind, lives less than two blocks from one of Arby’s Manhattan restaurants, had previously visited Arby’s restaurants, and intended to buy a gift card once Arby’s offered one with Braille or another accessibility aid. Lopez said he called Arby’s customer service and was told that Arby’s did not sell Braille gift cards. He also alleged that the employee did not offer another auxiliary aid and, based on information and belief, that Arby’s did not provide alternative aids for gift cards.

Standing

Standing is the requirement that a plaintiff show a real injury connected to the defendant’s conduct that a court decision is likely to remedy. For an ADA claim seeking an injunction, the court explained that a plaintiff must allege a past injury, a reasonable likelihood that the discriminatory treatment will continue, and facts supporting a reasonable inference that the plaintiff intends to return to the location.

The court held that Lopez’s allegations did not establish a sufficient intent to return. The complaint said that he lived near an Arby’s restaurant, had visited Arby’s stores before, and intended to buy an accessible gift card, but it did not say how often he passed the restaurant, when he last bought something there, how often he visited Arby’s, or why he wanted an Arby’s gift card instead of using cash or a credit card. The court characterized these allegations as generic and conclusory. It therefore held that Lopez lacked standing under the ADA and, because the state and city claims followed the same standing requirements, lacked standing for those claims as well.

ADA Merits

Although the court found a lack of standing, it also addressed the substance of the ADA claim because other judges had reached different conclusions in similar cases.

Gift cards are not places of public accommodation. Title III prohibits disability discrimination in the full and equal enjoyment of goods, services, facilities, and other offerings of a place of public accommodation. The court held that a gift card is not itself a place of public accommodation. The statute lists categories of places and establishments, and a gift card is a small personal object rather than a place or establishment. The court also rejected Lopez’s comparison between gift cards and websites, reasoning that websites may function as substitutes for physical businesses, while gift cards are not marketplaces where Arby’s provides goods to customers.

Gift cards are goods. The court held that Arby’s gift cards are goods because they are manufactured items sold to customers. Under the ADA regulations, a public accommodation generally must make its facilities and sales operations accessible but does not have to change its inventory to include special or accessible versions of goods. The court therefore ruled that Arby’s was not required to stock Braille or otherwise accessible gift cards.

The complaint did not adequately allege a lack of auxiliary aids. The ADA requires appropriate auxiliary aids and services when necessary for effective communication, but the court explained that Braille is not always required and that the public accommodation may choose among alternatives if the result is effective communication. The court held that Lopez had not plausibly alleged that Arby’s lacked any sufficient alternative aid. The complaint alleged only that a customer-service employee did not independently offer an alternative when Lopez asked about Braille, and it did not allege that Lopez asked about other aids, that an employee said none were available, or that Lopez had a source for his assertion that Arby’s offered no alternatives.

State and City Claims

After dismissing the federal ADA claim, the court declined to exercise supplemental jurisdiction, meaning authority to hear related state-law claims, over the New York State Human Rights Law and New York City Human Rights Law claims. The court dismissed those remaining claims.

Leave to Amend and Disposition

Lopez asked for permission to file a second amended complaint. The court denied that request because Arby’s had raised essentially the same arguments in its earlier motion, the court had warned that another amendment was unlikely, and Lopez did not explain how he would fix the substantive problems. The court stated that further pleading would be futile.

Judge Vernon S. Broderick granted Arby’s motion to dismiss with prejudice, denied Lopez’s request for leave to file a second amended complaint, directed the Clerk to terminate the motion at Document 18, and closed the case.