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Published on:

16 February 2021

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on ADA Compliance and Defense.

For many years, businesses classed as public accommodations under the ADA have been the subject of “cookie-cutter” complaints that allege discriminatory conditions without providing any specific examples. Thousands of nearly identical complaints have been filed in federal courts nationwide, and their lack of detail makes it difficult for courts to provide a remedy that will prevent future harm. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, summarizes the recent decision in Whitaker v. Tesla Motors which may put an end to these fill-in-the-blank cases.

Whitaker v. Tesla Motors – the end of
cookie-cutter ADA complaints?

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In a unanimous published opinion, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) affirmed the District Court’s dismissal of Whitaker v. Tesla Motors, for failure to state a claim of an action under Title III of the Americans with Disabilities Act (ADA). This case may have broad application for ADA defense lawyers because very similar “form” complaints are used widely in Southern California. According to the Ninth Circuit, these complaints are defective. There are literally hundreds, if not thousands, of virtually identical Complaints on Federal Court dockets in California and across the country.

About Whitaker v. Tesla Motors

Brian Whitaker, whose complaint states he uses a wheelchair for mobility, is a “tester” who visits businesses to ascertain whether their facilities comply with the ADA. Whitaker files lawsuits against those he determines are non-compliant, using complaints that are little more than a “fill-in-the-blanks” form.

In this case, Whitaker visited a Tesla dealership and alleged its service counters denied him full and equal access and “created difficulty and discomfort”. He further alleged that Tesla’s failure to provide accessible service counters prevented him from returning to the dealership. CONTINUE READING →

Published on:

02 February 2021

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on ADA Compliance and Defense.

As we’ve discussed in previous blogs, there has been an uptick in lawsuits filed against hotels alleging a failure to list accessible features on their website as required by the ADA. While many of these cases have been successfully defended in federal courts, new filings continue to surge and many plaintiffs are turning to state courts which have different requirements for dismissal. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, explains why we should expect these cases to continue in 2021 and what hotels should be looking out for.

Hotels must list accessible features on the web or risk being sued

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

We previously warned the hotel industry of the inevitable explosion of ADA website lawsuit filed against hotels. Well, that time is here.

In 2020, we saw a surge of lawsuits filed against those in the hotel industry, alleging the failure to comply with 28 C.F.R. Section 36.302 (e) of the Americans with Disabilities Act (ADA), which requires hotels to list their accessible features on their websites as well as on the websites of online travel agencies (OTAs) such as Travelocity, Orbitz, hotels.com, etc. We expect this surge of lawsuits to continue well into 2021.

Whether you are a national “flag” or the owner of a small portfolio of hotels, the 2010 ADA’s, C.F.R. Section 36.302 (e) applies to your hotel properties and websites. This section of the ADA has been effective since March 15, 2012 and requires hotels to describe accessible features in hotels and guest rooms offered through its reservations services in enough detail to reasonably permit individuals with disabilities to assess independently whether a hotel or guest room meets their accessibility needs. CONTINUE READING →

Published on:

31 December 2020

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Click here for the latest articles on ADA Compliance and Defense.

A number of recent cases have been dismissed by federal courts citing a lack of standing under Article III of the Constitution, proving that ADA lawsuits can be successfully defended. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, summarizes one such case below.

The Court Dismisses ADA Lawsuit for Lack of Standing Proving Once Again These Cases Can Be Won

Anthony Bouyer v. LAXMI Hospitality, LLC

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

It’s important to remember federal courts are courts of limited jurisdiction.  That limited jurisdiction derives from Article III of the U.S. Constitution. To establish standing under Article III, an ADA plaintiff must show actual or imminent injury. Injunctive Relief to remove access barriers is the only relief available to an individual ADA plaintiff in Federal Court.

In August, 2020, the plaintiff in Anthony Bouyer v. LAXMI Hospitality, LLC filed an action alleging the defendant’s hotel in Woodland Hills, California violated the Americans with Disabilities Act (ADA).  According to the Complaint, the plaintiff is substantially limited in performing regular life activities and uses a wheelchair when traveling in public.  The Complaint alleges that the plaintiff visited the hotel where he encountered ADA violations.  The hotel had no record of the plaintiff’s alleged visit.  The plaintiff’s Complaint sought injunctive relief requiring the defendant to make the hotel accessible.

The plaintiff served the Complaint on a hotel clerk.  Due to a variety of COVID-19 related factors, the defendant failed to respond to the Complaint.  The Court Clerk entered the defendant’s default and the plaintiff filed a Motion for Default Judgment.  Despite being served with notice of the Motion for Default Judgment, the defendant sought our  representation just before its opposition to the Motion was due. CONTINUE READING →

Published on:

23 December 2020

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on ADA Compliance and Defense.

As websites become a larger consideration for hotel owners hoping to avoid ADA lawsuits, courts have repeatedly dismissed claims by “testers” who visit hotel websites without any clear intention of visiting the hotel itself. A judge in the US District for the District of Maryland has ruled a third time that a serial tester does not have standing to sue. Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, explains the ruling and what it could mean for hotels, below.

ADA Website “Tester’s” Lawsuit
Dismissed – Again

by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In 2020, we saw an explosion of federal lawsuits against hotels alleging that they failed to comply with 28 C.F.R. 36.302(e) of the Americans with Disabilities Act (ADA) by not identifying accessible features on their own and third party booking agents’ websites.

Twice this year, we reported that ADA website lawsuits filed against hotels by serial plaintiff Deborah Laufer were dismissed as she failed to show she had standing to sue. Is the third time a charm?
On November 19, 2020, a federal district court judge dismissed yet another ADA website lawsuit because Ms. Laufer failed to show she had standing to sue under Article III of the Constitution because she did not show “individual” or “particularized” injury.

CONTINUE READING →

Published on:

14 December 2020

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on ADA Compliance and Defense.

Last week, the Department of Transportation modified the rules of the Air Carriers Act so that “emotional support” animals will no longer be permitted to fly for free, and only “service animals” will be allowed aboard.

Martin Orlick, Chair of JMBM’s ADA Compliance & Defense Group, has written an article giving some context to this decision and outlining what animals will be allowed to join passengers on commercial flights. Hotel owners should be aware that while this rule change only applies to airlines, they do not have to permit emotional support animals on their property.

Emotional Support Animals Now Banned
on Commercial Flights
Airlines are Crying “Woof”
by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

News accounts abound of passengers bringing a variety of so-called “emotional support” animals aboard commercial air flights. Who hasn’t seen a cute, expensive dog, cat or other animals on flights? And we have also heard about passengers bringing along cats, turkeys, lizards and emotional support snakes aboard commercial flights. Well, the days of flying pets for free are over, according to new federal rules.

Last week, the Department of Transportation (DOT) adopted new rules that only specially trained dogs can assist passengers with physical or psychiatric disabilities on commercial flights. This rule comes after years of abuse by passengers who want to have their pets fly free.

Under the Air Carriers Act, passengers could bring their “emotional support” animals aboard commercial flights. All the passenger needed was a note from a friendly doctor or therapist stating that the passenger required the animal for emotional support in flight. For $175, anyone can go online and fill out a check-the-box questionnaire and receive a letter from a doctor or therapist stating that the passenger needs the company of an emotional support animal to fly safely. With such a note, pets could fly free of charge. For another $75 one can buy an “official” looking dog vest and emblem, purporting to be an emotional support animal certification on eBay. But such “notes” and indicia are meaningless, as there is no legitimate certification for emotional support animals. CONTINUE READING →

Published on:

1 December 2020

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on ADA Compliance and Defense.

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.
CONTINUE READING →

Published on:

29 June 2020

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on ADA Compliance and Defense.

ADA website cases continue to be filed against hotels nationwide, but some courts are pushing back against serial plaintiffs. My partner, Marty Orlick, shares the news below from a website case filed in the Northern District of New York.

ADA Website Litigation Update — Serial Plaintiff Gets No “Lucky Charm”
from New York Federal Judge
by
Martin Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In a case indicating that courts may be weary of serial plaintiffs filing multiple cookie-cutter lawsuits, a United States District Judge in the Northern District of New York has ordered a plaintiff to show that she has standing to bring ADA hotel website accessibility lawsuits to federal court.

The disabled plaintiff, who resides in Florida, has filed 29 nearly identical ADA website cases in the Northern District of New York seeking injunctive relief, damages, and attorneys’ fees. In this specific case, Deborah Laufer v. 1110 Western Albany LLC and Ryan LLC, the plaintiff sought an unopposed default judgement when the defendant failed to respond to the complaint.

The Court, however, determined the plaintiff failed to establish Article III standing to bring the lawsuit and refused to enter the default judgment.

Achieving Article III standing in federal court

To have standing to seek injunctive relief in federal court, plaintiffs must establish they have sustained (or are in immediate danger of sustaining) a direct injury as the result of the alleged wrongdoing, and that the injury is concrete and particularized, not hypothetical or speculative.

In this case, the plaintiff claimed injury due to the alleged lack of information on a hotel’s website about accommodations for disabled guests, as is required under the ADA’s 28 C.F.R. Section 36.302(e).

But Hon. Brenda K. Sannes, of the United States District Court of the Northern District of New York states in an Order dated May 8, 2020:

“There appears to be a serious question as to whether Plaintiff has established standing, in this, or any of her other cases, and thus whether the Court has subject matter jurisdiction over these actions. See, e.g. Laufer v. Laxmi & Sons LLC, 1:19-cv-01501 (BKS/L) (Dkt. No. 15, at 7. May 6, 2020). (“There are no facts in the Complaint or Plaintiff’s affidavit indicating that she has ever traveled to Rensselaer, New York, or anywhere in New York, or that she has any reason to travel anywhere in New York or any reason to seek lodging anywhere in New York.”)

The Judge has ordered the Plaintiff to file briefs in 29 actions, addressing whether she has standing, and to specifically reference the legal issues and case law discussed in the Memorandum-Decision and Order the Court entered in Laufer v. Laxmi & Sons, LLC.

What does this mean for hotels?

The 29 lawsuits filed by the plaintiff in the Northern District of New York, are among the more than 235 nearly identical lawsuits she has filed nationally.
CONTINUE READING →

Published on:

29 May 2019

JMBM’s ADA Compliance and Defense Group has defended more than 750 ADA lawsuits and DOJ investigations or actions brought against owners and operators of hotels and other businesses classified as “public accommodations” under the Americans with Disabilities Act (ADA). A federal Grand Jury has indicted a prolific ADA plaintiff for income tax evasion. More than just an interesting story, Marty Orlick explains how this might affect current and future ADA litigation.

 
Serial Plaintiff Who Filed Nearly 3,000 Americans with Disabilities Act (‘ADA’) Lawsuits is Indicted by a Federal Grand Jury and Faces Possible Imprisonment and Fines for Income Tax Evasion
by
Martin H. Orlick, Hotel Lawyer  & Chair,
JMBM’s ADA Compliance & Defense Group

In an ironic twist of fate, Scott N. Johnson, Esq., a disabled Sacramento attorney, who has filed nearly 3,000 ADA lawsuits as plaintiff, starting in the United States District Court for the Eastern District of California, now faces possible jail time for felony income tax fraud according to a Federal Grand Jury Indictment.

On May 23, 2019, United States Attorneys filed a Grand Jury Indictment, United States of America v. Scott Norris Johnson, accusing Johnson of three counts of “Making and Subscribing a False Tax Return” by failing to declare substantial income derived from ADA settlements on his U.S. Individual Income Tax Returns and his U.S. Corporation Income Tax Returns for the tax years 2012-2014.

According to the Indictment, from no later than “on or about January 28, 2008, SCOTT NORRIS JOHNSON owned and operated Disabled Access Prevents Injury, Inc. (“DAPI”), a corporation registered in the State of California. DAPI was treated as a C corporation for tax purposes.” The Indictment alleges that Johnson was DAPI’s sole shareholder and that DAPI “provided legal services associated with lawsuits that it filed on behalf of SCOTT NORRIS JOHNSON as the plaintiff.”
CONTINUE READING →

Published on:

 

UPDATE: On December 23, 2020, the Fourth Appellate District Court dismissed the Riverside County District Attorney’s case against James Rutherford and his attorneys, on appeal. As reported in our May 21, 2019 blog below, the DA’s case alleged ADA serial plaintiff James Rutherford and the lawyers who regularly represent him were involved in abusive litigation. The Appellate Court dismissed this claim (see unpublished Opinion here) as the ADA lawsuits were protected by California’s litigation privilege. The Court wrote: “As we explain, the litigation privilege applies to the People’s complaint, and the People have not shown that an exception to the privilege applies.” It was our view then, and even more so after the Appellate Court’s decision, that the Riverside D.A.’s theory of the case led to the inevitable outcome. Perhaps the D.A.’s office will take a fresh look at the facts of the case and apply a new theory if it intends to pursue a case against serial ADA litigants.

21 May 2019

JMBM’s ADA Compliance and Defense team, led by my partner Marty Orlick, continues to help hotels and other businesses achieve compliance under the Americans With Disabilities Act (ADA), and has defended more than 750 ADA lawsuits and DOJ investigations or actions brought against owners and operators of “public accommodations.” Such properties include hotels, resorts, restaurants, timeshares, bed and breakfasts, spas, sports facilities, wineries, theaters and other commercial real estate, such as apartment communities, shopping centers, retail stores and banks.

Today, Marty shares some good news from Riverside, California, where the Riverside County District Attorney’s Office is seeking to stop abusive ADA lawsuits filed by serial litigants.

Riverside County DA drops the hammer on ADA litigant and counsel
to stop abusive litigation
by
Martin H. Orlick, Hotel Lawyer  & Chair,
JMBM’s ADA Compliance & Defense Group

In an extraordinary case charging ADA litigation abuse, the Riverside County District Attorney’s Office filed an action on behalf of the People of California seeking to permanently prevent serial ADA plaintiff James Rutherford and two law firms that regularly represent him (Manning Law and the Law Offices of Babak Hashemi, and individual members of the firms) from filing abusive lawsuits. The Complaint alleges that the defendants violated various Business & Professions Code sections designed to protect the public against “unlawful, unfair or fraudulent acts or practices” and seeks civil penalties not to exceed $2,500 for each violation and other equitable relief. Civil penalties in this case could exceed $800,000 if the allegations prove true.

The Complaint alleges that “Defendants filed 323 lawsuits based on alleged violations of the Americans with Disabilities Act” in federal and state courts. Many of these lawsuits were filed against hotels and retailers. According to court papers, the pleadings filed by the defendants follow a pattern of near-identical “allegations, except for the identity of the named defendants and the date of the alleged harm.”

This lawsuit is eerily similar to a lawsuit filed by the Arizona Attorney General against Peter Strojnik, Sr., who filed nearly 2,000 identical ADA lawsuits against Phoenix/Scottsdale businesses. Suspended from practicing law, Mr. Strojnik surrendered his license to avoid disbarment. Another lawyer in New Mexico also surrendered her license in lieu of disbarment over ADA litigation abuse. CONTINUE READING →

Published on:

20 November 2017

JMBM’s ADA Compliance and Defense team, led by my partner Marty Orlick, continues to help hotels and other businesses achieve compliance under the Americans With Disabilities Act (ADA), and is actively defending numerous ADA lawsuits brought against our clients.

Today, he shares one of the stranger tales of serial ADA litigation and describes how the judicial system in New Mexico stopped the plaintiff and her lawyer from filing frivolous and malicious ADA lawsuits.
New Mexico Judge Dismisses 99 ADA Lawsuits as Fraudulent and Malicious
Entertains Sanction Motions
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group

On October 26, 2017, a judge dismissed 99 ADA lawsuits, ordered an in forma pauperis plaintiff  (a person without funds to pursue the cost of a lawsuit) to pay filing fees of $38,300 and authorized the defendants to file fee and sanction motions.

Surely, this plaintiff’s lawyer rues the day she answered an ad on Craigslist looking for a civil rights lawyer to file ADA litigation in her jurisdiction.

What’s going on?

A Strange Set of Circumstances

The Arizona-based organization, Litigation Management and Financial Services, Inc. (LMFS), a descendant of the notorious ADA plaintiffs’ group Advocates for Individuals with Disabilities, used Craigslist, indeed.com and other online media to find and engage disabled plaintiffs to file ADA lawsuits, and lawyers to represent them. The online advertisements resulted in hundreds of ADA lawsuits filed against businesses in New Mexico, Nevada, Colorado and Utah.

It is also how a disabled plaintiff and her lawyer came to file 99 ADA lawsuits in New Mexico, alleging each defendant’s business violated the ADA and related anti-discrimination laws.  According to court documents, the deal LMFS made with this plaintiff and her counsel, worked like this:

  • The plaintiff was paid $50.00 per lawsuit filed.
  • The plaintiff’s counsel received $100 per filing for serving as counsel of record for each lawsuit filed.
  • LMFS drafted all pleadings and defended any motion practice in exchange for the lion’s share of any settlements that resulted from the lawsuits.
  • LMFS also arranged for a driver to take the plaintiff to some — but apparently not all — of the businesses that were sued, for a photo-op.

CONTINUE READING →

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