On November 19, 2020, the Honorable Brenda K. Sannes, United States District Court Judge for the Northern District of New York issued an order dismissing 20 of serial Plaintiff Deborah Laufer’s cases without prejudice. This victory has major implications for the hospitality industry, as Laufer brought suit against hundreds of hotels, many of which are small businesses or family-owned, who have struggled to stay afloat during the pandemic.
Laufer is a resident of Florida, and filed suit against approximately 60 hotels located within the Northern District of New York (only 20 were active at the time this order was entered) alleging violations of the Americans with Disabilities Act (“ADA”). Laufer has filed more than 500 nearly identical lawsuits in district courts around the country, alleging that hotels and their online booking systems, including third-party online reservations systems (“ORS”), such as orbitz.com and expedia.com, do not identify accessible rooms, do not provide an option for booking an accessible room, and do not provide information about the accessibility features of the rooms.
In the main action in which Judge Sannes issued her order, Dove v. Hess Holdings, LLC, Case 1:20-cv-00845-BKS-ML, Laufer originally filed a complaint as a self – proclaimed “tester” for purposes of determining whether the hotel’s ORS complied with the requirements of the regulation set forth by the Department of Justice (“DOJ”) to carry out the provisions of the ADA as they relate to making places of lodging accessible to disabled individuals. Notably, while Laufer alleged that she intended to revisit the ORS to test it for compliance with the regulation, she never made any allegations that she actually intended to visit the hotel or its surrounding area, nor did she allege any intent book a room at the hotel. Judge Sannes was assigned all of Laufer’s cases filed in the Northern District, and began to enter orders in all of the cases requesting that the parties file briefs as to whether or not Laufer had Constitutional standing to bring the respective actions.
After the parties submitted their briefs, but before the Court reached a decision on the issue of standing in the Dove case, Laufer filed a motion to amend her complaint, to add allegations that she has family in New York and travels to the State to visit them frequently. Laufer also sought to add allegations that she has traveled extensively throughout the State, and when she visits, she stays in hotel. Laufer also alleged that she plans to return to the State and travel to all regions of the state when the Covid-19 crisis is over consistent with her frequent visits to the area. Laufer also named sites and attractions in the vicinity of the subject hotel that she intended to “further explore” in the “future.” Laufer claimed that she needed the hotel reservation system to be complaint so she could compare hotels and ascertain whether or not their features and rooms are accessible to her.
In considering whether Laufer established standing to bring these actions, the Court questioned whether Laufer’s allegations consisted of a “bare procedural violation” of the ADA, “divorced from any concrete harm” (which is insufficient to confer standing) or whether the violation of the ADA posed a “risk of real harm” in order to satisfy the requirement of a concrete and particularized injury, which is required to confer standing.
The Court found that even with the new allegations in the proposed amended complaint, Laufer was unable to establish standing. The Court focused on the Second Circuit’s interpretation of standing in the ADA context, requiring a plaintiff to allege past injury under the ADA, that it would be reasonable for the plaintiff to infer that the discriminatory treatment would continue, and that based on the past frequency of the plaintiff’s visits and the proximity of the defendant’s business to the plaintiff’s home, that the plaintiff intended to return to the subject location.
Judge Sannes noted that Laufer’s only allegations with respect to visiting New York were forward-looking; that is, that Laufer presently intends to visit New York in the future. However, Laufer did not make any allegations that her visits to the ORS prior to filing her complaint were motivated by her intent to travel to New York; there were no allegations from which the Court could reasonably infer that Laufer originally went to the ORS with the intent to book a room or to even obtain information that would allow her to decide whether to book a room.
While finding that Laufer lacked standing, the Court also gave Laufer the option of filing a motion to amend her complaint to address the standing deficiencies identified by the Court.
We anticipate that Laufer will file a motion to amend her complaint to attempt to remedy the issues raised by the Court. We also anticipate that hotels across the country that are fighting back against these lawsuits, may cite to this decision to try to get their cases dismissed as well.
Winget, Spadafora & Schwartzberg, LLP is currently defending multiple ADA matters in New York, Florida, California and New Jersey including those commenced by Serial Plaintiff Laufer and is closely monitoring these developments. If you would like to discuss the implications of this decision or would like compliance guidance regarding your hotel’s website and ORS, please do not hesitate to contact Dianna D. McCarthy at (212) 221-6900 or mccarthy.d@wssllp.com or Heidi Gootnick at gootnick.h@wssllp.com.
