By Ashley S. Jenkins and Minh N. Vu
Seyfarth Synopsis: Hotels have been fighting a tsunami of hotel reservations website lawsuits with good results so far.
In the past few years, a dozen or so plaintiffs represented by a handful of law firms have sued many hundreds of hotels for allegedly not providing enough accessibility information about their accessible rooms and common areas on their reservations websites, as required by ADA regulations. While some hotels have resolved these claims early, many have chosen to fight these suits, with some excellent results. Below are some highlights.
Center for Disability Access Lawsuits. As we’ve reported, a southern California firm named the Center for Disability Access a/k/a Potter Handy (CDA), has now filed over 565 of these cases with nine different plaintiffs. These plaintiffs insist that the ADA regulations require the disclosure of very specific details, down to detailed measurements, for some accessibility features in accessible rooms. Most hotels do not currently provide this degree of detailed information, based on guidance the U.S. Department of Justice (DOJ) issued when these regulations were first adopted.
So far there have been nearly ninety district court decisions rejecting these demands for detailed disclosures and dismissing these lawsuits. These courts have found that — based on the DOJ’s guidance — such a detailed list of disclosures is not required. The CDA has appealed four adverse decisions to the Ninth Circuit Court of Appeals, two of which are scheduled for oral argument on February 14, 2022.
Two recent decisions in these CDA lawsuits are noteworthy because they were dismissed on the ground of mootness rather on the merits like the others. In Langer v. Music City Hotel LP , U.S. District Judge Phyllis Hamilton of the Northern District of California held that a hotel’s voluntary modification of the accessibility information on its hotel reservations website successfully mooted the ADA Title III claim. The court dismissed the case and declined to exercise supplemental jurisdiction over plaintiff’s state law claims under California’s Unruh Act. Similarly, in Whitaker v. Montes, U.S. District Judge Edward Chen held that while defendants must prove that “the allegedly wrongful behavior could not reasonably be expected to recur” to establish that a case is moot, the hotel had met that heavy burden by taking prompt action to update the accessibility information on its website. “Although websites can easily be changed, it still took time, effort, and money for the Hotel to make that change, and now that the website information is up, there is little incentive for the Hotel to take it down,” the court reasoned.
Tenth Circuit Finds No Standing for Repeat Plaintiff Deborah Laufer. Plaintiff Deborah Laufer has filed at least 300 lawsuits in the past five years against hotels all over the U.S. alleging that they have not provided sufficient accessibility about their hotels on their reservations websites. The Tenth Circuit recently issued a very detailed decision in Laufer v. Looper holding that Ms. Laufer did not have standing to sue a hotel for insufficient accessibility information because she had no concrete plans to visit the town in which the inn was located or to book a room at the inn. Thus, the alleged lack of accessibility information on the website did not result in the “concrete injury” that is necessary for her to have standing to sue. The court explained: “[A] violation of a legal entitlement alone is insufficient under Spokeo and TransUnion to establish that Ms. Laufer suffered a concrete injury. Article III standing requires a concrete injury even in the context of a statutory violation. And that concrete injury must affect the plaintiff in a personal and individual way.” (citations and internal quotations omitted).
The Tenth Circuit’s analysis in Laufer reminded us of the California Court of Appeal’s decision in Thurston v.Omni in which it found that a plaintiff must demonstrate an intent to use a defendant’s services to have standing to bring a claim under the Unruh Act. The plaintiff there claimed that she had standing because she encountered a barrier on the defendant’s website that prevented her from using it. The Court of Appeals found this injury to be of no consequence for standing purposes because a jury had found that she had no intent to do business with the hotel.
There will be more decisions in cases alleging deficient accessibility information on reservations websites coming out this year. Decisions in the pending Ninth Circuit appeals – depending on what they say – will either put an end to hundreds of pending suits or encourage more lawsuits. Stay tuned for more developments.