Calcano v. True Religion Apparel, Inc.

Background

Marcos Calcano, on behalf of himself and a proposed class, sued True Religion Apparel, Inc. He alleged that he is legally blind and needs Braille to read written material. According to the amended complaint, he called True Religion’s customer service on November 9, 2019, asked whether the company sold store gift cards containing Braille, and was told that it did not. He alleged that he intended to buy and use an accessible gift card at a True Religion retail store once one became available.

Calcano asserted claims under Title III of the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law. He sought compensatory damages, attorney’s fees, and an injunction requiring True Religion to design, distribute, and sell gift cards accessible to blind and vision-impaired people. True Religion moved to dismiss the amended complaint.

Standing

Standing is the constitutional requirement that a plaintiff show a concrete injury, a connection between that injury and the defendant’s conduct, and a likelihood that a court order would remedy the injury. For a Title III ADA claim seeking an injunction, the court explained that a plaintiff must allege a past injury, facts supporting a reasonable inference that the discrimination will continue, and facts supporting a reasonable intention to return to the location.

The court held that Calcano’s amended complaint did not allege enough specific facts to establish standing. It relied on allegations that he lived close to a True Religion store, had previously been a customer, and intended to immediately purchase and use an accessible gift card. The court characterized those allegations as generic and conclusory. Because the state and city disability-discrimination claims were subject to the same standing requirements, the court held that Calcano also lacked standing for those claims.

Although that conclusion was sufficient to resolve the standing issue, the court also addressed the substance of the ADA allegations because other judges had reached different conclusions in similar cases and the Second Circuit had not yet ruled on the issue.

ADA Claim

The court identified the central question as whether Title III of the ADA requires retailers to provide Braille-embossed or otherwise accessible gift cards to legally blind consumers. It concluded that it does not.

First, the court held that gift cards are not “places of public accommodation” under Title III. The statute lists categories of places and establishments that qualify as public accommodations. The court reasoned that gift cards are small personal objects, not places or establishments, and are not included in any statutory category.

Second, the court held that gift cards are goods. The court relied on the ordinary meaning of “goods” as manufactured items produced for sale and noted that True Religion sold gift cards to customers. Under the ADA regulations, a public accommodation generally must make the goods it offers accessible but does not have to change its inventory to provide special or different goods designed for people with disabilities. The court therefore concluded that True Religion was not required to stock accessible gift cards.

Third, the court rejected Calcano’s theory that True Religion failed to provide required auxiliary aids. Auxiliary aids are tools or services that help ensure effective communication for people with disabilities. The court noted that True Religion’s physical retail stores are public accommodations and that the ADA requires appropriate auxiliary aids when necessary, but Braille is not always required if another method provides effective communication.

The court found that Calcano had not plausibly alleged that True Religion lacked any effective alternative. He alleged that an employee did not independently offer another aid when asked only about Braille gift cards, but he did not allege that he asked about alternatives, that an employee said no alternatives existed, or that he told the employee about his disability. The court concluded that these allegations were insufficient to state an ADA claim.

State and City Claims

After dismissing the ADA claim, the court declined to exercise supplemental jurisdiction over the New York State Human Rights Law and New York City Human Rights Law claims. The court stated that the remaining claims were dismissed.

Leave to Amend and Disposition

Calcano asked for permission to file a second amended complaint. The court explained that amendment may be denied when it would be futile, meaning the proposed pleading still could not state a valid claim. It found that True Religion had already raised essentially the same arguments in its earlier motion, that Calcano had not identified how another amendment would cure the serious problems, and that the deficiencies were substantive.

The court denied Calcano’s motion for leave to file a second amended complaint. It granted True Religion’s motion to dismiss the amended complaint with prejudice. The court did not address True Religion’s alternative request to strike the class allegations because all of Calcano’s federal, state, and city causes of action had been dismissed.