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 H. Orlick

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.
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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, or is it the prelude to an appeal?

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.

Emotional Support Animals Now Banned on Commercial Flights — Airlines are Crying “Woof”

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.

Federal Judges Deal Further Blows to Deborah Laufer’s Nationwide ADA Lawsuits Against the Hospitality Industry: ADA Lawsuits Are Defensible

by Martin H. Orlick

On June 8, 2020, we reported on the opinions of a New York federal judge that 30 of Deborah 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.

Deborah 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 ›

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 judgement.

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.”) Continue ›

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Title III of the ADA allows customers and visitors to sue businesses and landlords for disability discrimination in court. The alleged violations range from everything from parking lot slope to website design. What should you do if you’ve been sued under Title III of the ADA?

  1. Take a deep breath.

Title III ADA cases are very seldom “bet the business” size cases. They can generally be resolved through settlement negotiations or court motions without threatening continued operation of the business. But you need to take action as soon as you’re aware of the lawsuit or threatened lawsuit.

Many hotels are not aware that the ADA imposes several requirements during the reservations process, including posting descriptions of the hotel’s physical accessibility features on its online reservations system.  Starting around early 2018, serial ADA plaintiffs have filed significantly more lawsuits against hotels regarding this issue.

In addition to the many physical accessibility requirements at places of lodging (hotels), such as accessible parking and accessible guest rooms, the ADA also requires places of lodging to take certain actions during the reservations process to help individuals with disabilities obtain an accessible guest room.  Specifically, places of lodging are required to do the following:

  • Ensure individuals can reserve accessible guest rooms in the same manner and time as other guests;
  • Provide descriptions of accessible features of the hotel and guest rooms as part of any reservations process (such as website booking);
  • Ensure that the hotel’s accessible guest rooms are held for individuals with disabilities and not rented out to those not requesting an accessible room (unless all non-disabled rooms have been booked); and
  • Once reserved, ensure that the accessible guest room is hard booked and not rented to anyone else.

These requirements derive from 28 C.F.R. § 36.302(e)(1), which is provided in full below.

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See Part 1 – What you need to know about how we got here
See Part 2 – Rights to due process and standing requirements

This article was first published by Law360® Expert Analysis, © 2019 Portfolio Media Group Inc. and is reprinted with permission.

ADA website litigation against the hospitality industry involves more than whether a website is accessible using screen reading software. The DOJ speaks directly to the lodging industry in 28 CFR § 36.302(e) of the ADA’s Title III Regulation, stating that reservations made by places of lodging shall modify policies, practices or procedures to ensure that individuals with disabilities can make reservations in the same manner as individuals who do not need accessible rooms; that hotels must identify and describe their accessible features in public spaces and guest rooms in enough detail to permit individuals with disabilities to assess whether their needs will be met; that hotels must hold accessible guest rooms for use by individuals with disabilities until all such rooms have been rented; and must guarantee the specific accessible guest room reserved through its reservations service is held for the reserving customer.

ADA plaintiffs law firms are quite familiar with the details of this section of Title III, and ADA website lawsuits filed against hotels often include allegations that hotels do not accurately identify the hotel’s accessible features. Our clients are experiencing an explosion of such litigation by increasing numbers of law firms.

Copycat website ADA litigation is exploding

An interesting “phenomenon” or pattern is taking place in the realm of ADA cyberaccessibility litigation: copycat website litigation filed against the same hotel by different law firms around the country, alleging the same website ADA violations as the original lawsuit.  Curiously, this tactic is becoming more common in California, New York, Florida, Arizona and elsewhere. Are these copycat lawsuits coincidental? Are they the result of independent investigation? Or are the plaintiffs or their counsel sharing defendant lists? Although it is currently unclear how or why hotel defendants are confronted with multiple lawsuits by different plaintiffs over the same websites, it appears to be a growing trend. Continue ›

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Image by Erin Kelly via KPIX CBS SF Bay Area

Just when you think you’ve seen it all, imagine your astonishment when boarding the train for your morning commute to find you’re sharing the ride with a miniature horse. That’s exactly what happened to some passengers taking BART (Bay Area Rapid Transit) in the San Francisco Bay Area on a November morning in 2019.

Yes, the miniature horse is a service animal, as so defined under the Americans with Disabilities Act (ADA), and is allowed in “public accommodations” including banks, restaurants, hotels, shopping centers, and on public transportation (and see our blog on ride-sharing and service animals).

See Part 1 – What you need to know about how we got here
See Part 3 – Website litigation specific to hotels

This article was first published by Law360® Expert Analysis, © 2019 Portfolio Media Group Inc. and is reprinted with permission. 

The Supreme Court and the Ninth Circuit: Rights to due process

On October 7, 2019, the U.S. Supreme Court declined to hear an appeal by Domino’s Pizza LLC, sending Domino’s back to the trial court to determine if it can be held liable under the ADA for website accessibility. The high Court’s refusal to accept certiorari in this case was a disappointment to the hospitality industry and others. What happened?

In 2017, a federal district judge dismissed the website accessibility suit filed against Domino’s by a prolific ADA plaintiff (Robles v Domino’s Pizza LLC) on grounds that the failure of the DOJ to issue clear guidelines for website accessibility standards violated Domino’s constitutional right to due process. It appears that the DOJ was unaware of the lawsuit or that Domino’s filed a dispositive motion in the case, otherwise it likely would have intervened or filed an amicus (friend of the court) brief in opposition to the motion. Domino’s convinced the court that the DOJ had inconsistently applied the WCAG criteria in settlements, Consent Decrees and litigation. Domino’s convinced the court that such inconsistent application left businesses guessing which criteria to follow when developing their websites – the due process violation.

However, the Ninth Circuit Court of Appeals reversed the lower court’s decision and on January 15, 2019, determined that the ADA applies to Domino’s website, writing in its Opinion that: “Finally, the lack of specific regulations, not yet promulgated by the Department of Justice, did not eliminate Domino’s statutory duty.”

Now that the Supreme Court has declined to review the Ninth Circuit’s decision, the case returns to the District Court to be tried on its merits. Whether that will happen is yet to be seen – it’s possible the case will be settled soon after remand. Continue ›