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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.

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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 ›

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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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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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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 ›

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See Part 2 – Rights to due process and standing requirements
See Part 3 – Website reservations: ADA litigation specific to hotels

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

Part 1 – What you need to know about how we got here

When the Americans with Disabilities Act (ADA) was enacted by Congress in July 1990, the Internet was in its infancy and few, if any, considered its applicability to cyberspace. But in 2006, a California federal judge ruled that the ADA applied not just to brick and mortar establishments, but to websites: National Federation of the Blind v. Target Corp brought the ADA into the digital age. Application of the ADA to mobile apps would follow nearly a decade later.

In October of this year, thirteen years after Target, the U.S. Supreme Court’s declination to hear an appeal by Domino’s Pizza LLC to determine if it can be liable under the ADA for website accessibility, was a blow felt throughout the hospitality industry and others, which hoped to gain clarity on accessible website standards under the ADA. (See Robles v. Domino’s Pizza LLC.)

Following Ninth Circuit rulings, the decision reaffirms the principle that companies whose Internet activities are related to their brick and mortar stores may be held liable for violating the ADA even though the Department of Justice (DOJ) has yet to issue express website guidelines.

What’s going on?

Since Target, thousands of businesses – including hotels and restaurants – have been the subject of lawsuits claiming violations of Title III under the ADA because their websites and mobile applications are inaccessible to individuals who are blind and sight impaired and use screen reading software. Continue ›

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When will businesses get clear direction on ADA website compliance?

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 sued under the Americans with Disabilities Act (ADA) by a blind customer who alleged Domino’s website and mobile application were not accessible to people who are blind or sight impaired and use the website and mobile app with standard screen reading capabilities.

The high court’s refusal to accept certiorari in this case was a blow felt not only by Domino’s – but throughout the business community, which hoped to gain clarity on accessible website standards under the ADA.

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In September 2016, we published an alert that a group of plaintiff’s ADA lawyers had threatened a number of businesses – including hotels – with litigation claiming their websites failed to comply with “ADA Guidelines.”  (Read ADA Compliance & Defense Lawyer: ADA Website Accessibility Lawsuits Escalate.) These lawsuits have since been filed with greater frequency.

Since then, a number of threats have turned into lawsuits seeking injunctive relief (website accessibility), a multiple of $4,000 minimum statutory damages under California’s Unruh Civil Rights Act (per visit to the website or from being deterred from visiting the website), attorneys’ fees and litigation costs.

Years ago, the Department of Justice (“DOJ”) adopted rules requiring all federal agency websites to conform to the WCAG 2.0 A and AA Success Criteria as a means of providing accessible websites to persons who are blind, low vision, color blind or who suffer cognitive disabilities. In 2010, the DOJ issued a Notice Of Proposed Rulemaking (NOPR) stating that it intended to adopt formal ADA Guidelines for state and local government agencies to meet when designing websites. The DOJ intended to adopt the WCAG 2.0 A and AA Success Criteria for state and local government websites.  Justice then announced that it intended to adopt these same basic standards for private businesses’ websites.  But the DOJ withdrew its NOPR and has yet to issue final rules regarding web access standards for state and local agencies or private businesses.

ADA website lawsuit violates due process

Last week, in what is a ground breaking decision of particular importance to the hospitality industry, the U.S. District Court for the Central District of California threw out a serial plaintiff’s lawsuit which alleged that Domino’s Pizza’s website violated the Americans with Disabilities Act (ADA) and related California anti-discrimination laws by not conforming to the WCAG 2.0 A and AA Success Criteria. Continue ›

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Is your website accessible to the blind and vision impaired?

A version of this article was published by the California Bankers Association.

How would you react if you received a letter from a law firm alleging that your company’s website is in violation of the Americans with Disabilities Act (ADA) because it discriminates against persons who are visually disabled?

If your reaction is to take it seriously, you would be correct.

How would you react if you discovered a near-identical letter was sent to hundreds of other hotels, restaurants and other businesses – by the same law firm?

If your reaction is that you received a cookie-cutter letter by a plaintiff firm that is using a dragnet to identify possible defendants for lawsuits, you would also be correct.

How would you respond to the demand that you bring your website into compliance with international standards for web accessibility?

If you respond by picking up the phone to call experienced ADA legal counsel, you will be saving time and money.

What it’s all about

In January 2016, the law firm Carlson Lynch Sweet & Kilpela (CLSK) sent hundreds of near-identical form letters to national hotels, restaurants, financial institutions and other businesses, contending that the Department of Justice (DOJ) – the federal agency responsible for adopting ADA Standards – requires businesses to make their websites compliant with the ADA. (Note here that the DOJ has not formally adopted any specific website accessibility guidelines.)

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