1 December 2020
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Following our ADA Website Litigation Update in June, federal courts have begun to signal the end of a series of nearly 500 ADA lawsuits filed by one plaintiff against several hotels concerning accessibility descriptions on hotel reservation websites. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, gives an overview of these cases and explains why a recent ruling by a Maryland judge has proved that they are defensible.
While this ruling demonstrates that courts are beginning to push back against serial plaintiffs, it is important for hotels to understand what the ADA requires during the online reservations process.
Federal Judges Deal Further Blows to Debra Laufer’s Nationwide ADA Lawsuits Against the Hospitality Industry: ADA Lawsuits Are Defensible
by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group
On June 8, 2020, we reported on the opinions of a New York federal judge that 30 of Debra Laufer’s Complaints had no place in federal court. Since then, in other jurisdictions, federal judges have dealt further blows to Ms. Laufer’s campaign of lawsuits alleging that hotels and online travel agencies’ (OTA) websites violate the Americans with Disabilities Act (ADA) under 28 C.F.R. § 36.302(e)(1) by failing to identify the accessibility features of their hotels. On November 10, 2020 in Deborah Laufer v. Ft. Meade Hospitality, Civ. 8:20-cv-1974, a Maryland judge dismissed Ms. Laufer’s Complaint for lack of Article III standing.
Debra Laufer has filed nearly 500 lawsuits against hotels in Florida, Georgia, Maryland, New Jersey, New York, Illinois, Texas and other states. Until recently, hotel defendants found it easier and cheaper to settle, thereby encouraging more lawsuits. But a recent federal court decision may signal the end of these serial ADA lawsuits filed by Ms. Laufer.
Ms. Laufer is a self-described “tester” who reviews hotel websites to determine whether these “places of public accommodation” and their websites are in compliance with the ADA. The plaintiff, physically disabled, resides in Florida and requires assistive devices, often including a wheelchair if available. When allegedly visiting hotels, she requires disability accommodations. Online reservations can be made directly through the hotel’s website or at booking.com, priceline.com, expedia.com and other booking websites. Laufer alleges she visited these websites to test whether they meet the requirements by providing disability information about the hotel accommodations. If the websites do not provide sufficient information, she files litigation through the same lawyers.
Laufer filed a complaint against hotel operator Ft. Meade Hospitality, LLC (FMH), alleging a violation of the ADA at a hotel located in Laurel, Maryland. The plaintiff contends that FMH’s online reservation system violates the ADA’s 28 C.F.R. § 36.302(e)(1). When FMH failed to respond, the Clerk of the Court entered a default. Laufer then filed a Motion for Default Judgment. Reviewing the Complaint, which is identical to hundreds filed by the plaintiff, the Court found that Laufer failed to allege facts which make plausible that she has standing to sue. The Court denied the Motion for Default Judgment and dismissed the Complaint for lack of subject matter jurisdiction. Relying on Fourth Circuit precedent, the Court ruled that “assertions of either dignitary” or “informational terms” such as those alleged by Laufer, “are not sufficiently concrete to render the claim a justiciable case or controversy.” Laufer’s Complaint contends that the hotel’s reservation websites do not allow her to access the information pertinent to making a reservation for a room that accommodates her disability, but it fails to allege she actually intended to reserve a room. The Court’s Memorandum Opinion states: “She does not present any facts to make plausible that she would or could stay at the hotel or even travel to Maryland.”
In dismissing the cases, the Court concluded:
Laufer’s claimed injuries are hardly imminent because as pleaded, she has failed to make plausible that she would return to the website “other than . . . as a tester, which alone is insufficient.”
The Court noted “that Laufer has filed scores of nearly identically drafted Complaints in several jurisdictions. Mere incantations of some amorphous intent to visit this particular hotel, without more, will not save her claim.” The Court gave Laufer leave to amend but cautioned against such amendments.
As the FMH case demonstrates, Laufer’s ADA website cases are defensible. So, do these cases spell the beginning of the end for the Laufer lawsuits? Stay tuned for future reports that have similarly dismissed Laufer Complaints.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance.
Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.
This is Jim Butler, author of www.HotelLawBlog.com and founding partner of JMBM and JMBM’s Global Hospitality Group®. We provide business and legal advice to hotel owners, developers, independent operators and investors. This advice covers critical hotel issues such as hotel purchase, sale, development, financing, franchise, management, ADA, and IP matters. We also have compelling experience in hotel litigation, union avoidance and union negotiations, and cybersecurity & data privacy.
JMBM’s Global Hospitality Group® has been involved in more than $125 billion of hotel transactions and more than 4,700 hotel properties located around the globe. Contact me at +1-310-201-3526 or jbutler@jmbm.com to discuss how we can help.