I have a grudging respect for the creativity of plaintiffs lawyers who keep coming up with new things to sue over.

But when nearly 250 retailers and chain restaurants were hit with cookie-cutter ADA lawsuits last year in the Southern and Eastern districts of New York for failing to offer gift cards with writing in Braille, my immediate reaction was 'Huh?'

Not because I'm an expert on the Americans with Disabilities Act, but simply because the suits defied common sense. As in, how can a little plastic card be considered a place of public accommodation? 

Sure enough, the suits are going down like lead balloons. On April 23, U.S. District Judge Gregory Woods of the Southern District of New York tossed the first case, siding with Banana Republic and its lawyers from Morgan, Lewis & Bockius in a deliciously withering decision. 

In short order, he's gone on to dismiss suits against Swarovski AG, Ann Taylor, the Art of Shaving, Kohl's department stores, and CKE, which is the parent company of Carl's Jr. and Hardee's restaurants.

Woods kicked off the Banana Republic opinion by noting that while the suits filed by Bradly G. Marks of The Marks Law Firm and Jeffrey M. Gottlieb of Gottlieb & Associates (who did not respond to requests for comment) make claims that are novel, they are definitely not unique.

Over the last eight months, the judge noted, courts in New York "have been flooded with litigation from a handful of plaintiffs seeking injunctive relief, compensatory damages, and, of course, attorneys' costs and fees for alleged failures by numerous retail and service establishments to sell accessible gift cards."

In the Banana Republic suit, plaintiff Yovanny Dominguez based his complaint on making a call to the clothing store's customer service department to ask if they sold gift cards with writing in Braille. The customer service rep said no and did not offer him an auxiliary aid or service.

Woods, a former partner at Debevoise & Plimpton who was appointed to the bench in 2013, found that the telephone call established an injury-in-fact—the first prong to win standing under the ADA. And he also accepted the plaintiff's assertion that Banana Republic doesn't plan to start selling Braille gift cards in the future—which satisfies the second element of standing.

But Woods ruled the plaintiff failed on the third prong—intent to return. And this is where the opinion starts to get good.

"[T]here are not enough facts in plaintiff's complaint to plausibly suggest that he will be injured by Banana Republic's failure to sell Braille gift cards in future," Woods wrote. "Plaintiff does not profess an interest in procuring contemporary, affordable workwear, nor does he assert that he owns several Banana Republic pieces already and wishes to continue compiling a collection with the help of a Banana Republic gift card."

The judge continued, taking aim at the cookie cutter nature of the suits.

"True, the more generic the complaint, the more easily it can be repurposed for use against different defendants. But the greatest asset of copy-and-paste litigation can also be its greatest weakness. And here, that weakness is fully on display; by failing to allege any nonconclusory facts of a real or immediate threat of injury, plaintiff lacks standing to pursue injunctive relief under the ADA," Woods wrote.

Woods could have stopped there and called it a day. Instead, he went beyond the shortcomings in standing to also annihilate the merits of the case, noting that he was "mindful that a number of courts around the country are grappling with similar (if not identical) litigation."

The core question, he wrote, is an issue of first impression: Does Title III of the ADA require retailers to provide blind consumers with Braille-embossed (or otherwise accessible) gift cards?

Title III regulates access to places of public accommodation—so … is a gift card a place of public accommodation?

No, Woods held. It is neither a place nor a public accommodation.

True, the meaning of "place" can go beyond a physical space, and can encompass websites, for example, he noted. "[T]he phrase 'place of public accommodation' most logically reads as referring to a space—figurative or not—that can provide the services of a public accommodation."

"Though broad, this interpretation is not nearly broad enough to encompass gift cards," he continued. "Cruise ships are places (cite omitted). Gift cards are not. Gift cards do not sell or rent goods. They may be used to purchase goods from a retailer, but they are not spaces where those purchases can be made. Put differently, a consumer can make a purchase with a gift card, but not on or in a gift card."

He added, "[R]eading the words 'place of public accommodation' to include small slabs of plastic requires more than just a broad construction of Title III—it requires a rewrite of Title III entirely."

Woods also noted that Title III regulates access to places of public accommodation—not the type of merchandise a place of public accommodation sells.

For example, a bookstore cannot prevent visually impaired people from entering its premises, but that doesn't mean the store is required to stock Braille editions of its books.  

In a footnote, the judge addressed what struck me as perhaps the most ridiculous elements of the lawsuit.

It is "implausible that an inaccessible gift card could impede a blind person from enjoying all of the benefits of Banana Republic's retail locations," Woods wrote. "Banana Republic is a retail store that sells clothing and accessories. Customers visit the store to try on clothing and to make purchases. Plaintiff never alleges that Banana Republic gift cards are so intertwined with the store's physical presence that he cannot enter, browse, and try on clothing at Banana Republic stores without an accessible gift card. 

"In fact, his complaint suggests the opposite: The moment Banana Republic starts selling accessible gift cards—and without one in hand— Plaintiff intends to go to a retail store to buy one. Presumably Dominguez will make that purchase using a credit card, debit card, cash, or even an inaccessible gift card—the same method by which he could purchase any other goods at a Banana Republic store."