More than 60 retailers, restaurant chains and movie theatres in the past week have been hit with cookie-cutter class actions in the Southern District of New York testing a novel legal theory: that the merchants' gift cards violate the Americans with Disabilities Act because they don't have writing in Braille.

We're talking Nordstrom and Macys; CVS and Walgreens; Regal Cinemas and AMC Entertainment; McDonalds and Burger King; Whole Foods and Trader Joes; Home Depot and Bed Bath & Beyond; Petsmart and Build-a-Bear; Olive Garden and Applebee's.  

Just visualize a well-stocked gift card display and sue everyone but Starbucks—allegedly the only merchant that offers gift cards with Braille.

Gift cards are big business, with $400 billion in sales in 2019, according to the plaintiffs. Citing an industry survey, they said gift cards for nine years running have been the most requested gift.

But are they actually covered by the ADA? Is a store gift card a "public accommodation"?

Certainly the restaurant or store or theater where you'd go to spend the gift card must be ADA-compliant. But the card itself?

The plaintiffs, represented by Bradley Marks of the Marks Law Firm and Jeffrey Gottlieb of Gottlieb & Associates, argue that when a defendant (this particular complaint is against Victoria's Secret, but they're all almost exactly the same) fails to "remove access barriers to its store gift cards, plaintiff and visually-impaired persons have been and are still being denied equal access to defendant's retail stores and the numerous goods, services, and benefits offered to the public through the defendant's store gift cards."

Title III of the ADA requires that public accommodations provide "appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities," they note, arguing that gift cards are one such aid or service. They also claim that the Braille-less gift cards violate the New York State Human Rights Law and the New York City Human Rights Law.

"Without injunctive relief, plaintiff and other visually-impaired consumers will continue to be unable to independently use the store gift cards, violating their rights," they wrote.

But (surprise!) the lawyers want more than injunctive relief. They're also asking for compensatory damages, civil penalties under the New York human rights laws for each offense, attorneys' fees and costs.

Marks and Gottlieb did not respond to a request for comment. 

Morgan, Lewis & Bockius partner Anne Marie Estevez, who co-chairs the firm's retail & eCommerce industry initiative, argues that the ADA is about accessibility to places—it doesn't cover goods. And if it did, where would it stop? If a gift card has to be in Braille, what about the label on a box of chocolates? Or every other consumer product?

"They are trying to stretch the law to places no one reasonably contemplated could be covered," she said.

In an amendment to the ADA, the feds specified that ATM machines must have Braille writing. But Estevez noted legislators have said nothing about gift cards in Braille. "If the government wants to do that, they know how," she said.

Also, there's this: Less than 10% of the 1.3 million legally blind people in America can read Braille according to the National Federation of the Blind.