In Calcano v. Swarovski North America Ltd., the Second Circuit Court of Appeals consolidated five ADA Title III actions brought by the same law firm for alleged failures to offer braille gift cards. After consolidating the appeals, the Calcano court took the opportunity to address what it deemed a significant problem: cookie-cutter complaints in ADA Title III actions.

A necessary component to any case is that the plaintiff has standing to raise the issues presented. To establish standing, a plaintiff must show that he or she suffered an injury-in-fact that was caused by the defendant and can be redressed by the requested judicial relief. More specifically, the Second Circuit applies the following test to determine if a plaintiff has suffered an injury-in-fact to warrant ADA Title III injunctive relief: (1) whether the plaintiff alleged past injury under the ADA; (2) whether it is reasonable to infer that the discriminatory treatment will continue; and (3) whether it is reasonable to infer, based on the past frequency of plaintiff’s alleged visits and the proximity of defendant’s businesses to plaintiff’s home, that plaintiff intends to return to the subject location.

Standing is plaintiff-specific and requires a fact-intensive inquiry. Threadbare recitals and conclusory invocations parroting the factors do not allow a plaintiff to proceed beyond the pleadings. As the Second Circuit acknowledged: “the central inquiry is not whether a complaint pleads the magic words that a plaintiff intends to return, but if, examined under the totality of all relevant facts, the plaintiff plausibly alleges a real and immediate threat of future injury.”

The Calcano court found the following deficiencies (among others) across the five “cut-and-paste and fill-in-the-blank pleadings”:

• One plaintiff alleged he resided on W. 23rd Street, New York, on the same street and less than a block from the Kohl’s retail store at 271 W. 23rd St, New York. But there is no Kohl’s store anywhere in Manhattan, let alone at that address.
• Another plaintiff failed to provide his own address. Depending on where the plaintiff resided in the Bronx, his residence could have been over an hour from the defendant’s Bronx-based store.
• Yet another plaintiff alleged he wanted to return to Banana Republic (a retail clothing store) for the food.
• The plaintiffs merely made vague assertions about being customers at the respected businesses “on prior occasions.” Three plaintiffs failed to provide “any detail about their past visits or the frequency of such visits.”
• The plaintiffs did not identify why they wanted to purchase braille gift cards (i.e., for their own use or as gifts).

The Second Circuit also noted that the four plaintiffs in the consolidated appeal filed 81 out of over 200 “essentially carbon-copy complaints” filed within four months of each other. In fact, out of 6,300 words in one subject complaint, only 26 words (the parties, date, and defendant information) were different from another complaint—even the typos were the same.

The takeaway from Calcano is clear: if your business is served with a cookie-cutter, Mad-Libs-style, or carbon-copy complaint alleging a violation of ADA Title III, pay close attention to whether the plaintiff adequately provides the proper factual basis to establish standing. Courts are becoming less tolerant to such litigation tactics by ADA Title III plaintiffs.