In the past several months, a rash of lawsuits have been filed in federal district courts throughout New England, and indeed, throughout the country, by plaintiffs claiming that they have been subjected to discrimination by hotels.  The lawsuits have specifically focused upon alleged shortcomings in hotel websites, and the plaintiffs have claimed that the websites have caused them to be discriminated against, in violation of the Americans with Disabilities Act (“ADA”).

There have been literally hundreds of these lawsuits against hotels.  Since the allegations in these lawsuits are virtually identical, it is worth examining the best strategies that hotels and insurers should implement in defending them.  Pursuing early settlements in cases where the websites fail to comply with the ADA may be an appropriate strategy for some of these cases, but a number of cases should be aggressively defended to prevent plaintiffs from being emboldened to target the industry as a whole.

Americans with Disabilities Act

The Americans with Disabilities Act prohibits places of public accommodation from discriminating against individuals with disabilities.  As a result, businesses that cater to the public, such as restaurants, stores and hotels, are required to be accessible to individuals with disabilities.  Hotels and similar places of public accommodation which fail to accommodate individuals with disabilities can face litigation for failing to comply with the ADA.

“Typical” ADA Lawsuits

The “typical” ADA lawsuit is predicated upon a failure of the building in question to accommodate those with disabilities.  In this type of lawsuit, the claim is focused upon the structural facilities of the business (e.g. bathrooms which are not handicap accessible, entrances to buildings without a handicap ramp etc.) which arguably do not satisfy the requirements of the ADA. 

These lawsuits are to some extent equitable in nature inasmuch as the plaintiffs seek to get an order from the court that the property must be altered to make the property ADA compliant.  The underlying claim does not involve a person with disabilities suffering an injury who seeks compensatory damages.  However, a prevailing plaintiff is entitled to recover legal fees. Moreover, there are some jurisdictions with statutes which provide for the recovery of “statutory damages,” in addition to attorney fees, for a prevailing plaintiff.  As a result, a defendant can face fairly substantial financial exposure in these lawsuits because of the obligation to pay attorney fees and possible statutory damages, along with costs associated with making the property compliant with the ADA.

“Website” ADA Lawsuits

A separate type of ADA lawsuit against hotels in particular involves claims which target the hotel’s website.  In the same way that the physical structure of a building must accommodate people with disabilities, a website must be accessible for people with sensory disabilities (people who are visually or hearing impaired). Moreover, websites need to provide information about the various ways in which the hotels offer accommodations for persons with disabilities so that they can make informed decisions relative to whether the hotel in question would be appropriate for the specific person. 

These “website” discrimination claims are similar to the “structural” discrimination claims insofar as they do not involve plaintiffs who have suffered an actual injury from which they seek to recover compensatory damages.  These cases are similarly equitable in the sense that the remedy requested is to fix the website so it is compliant with ADA standards as a public accommodation, such as ensuring the website information can be detected by screen access software. To the extent that these claims involve monetary damages, they would arise through attorney fees and costs which a prevailing plaintiff would be entitled to recover, as well as “statutory damages” in those jurisdictions which provide for statutory damages. 

Assuming the website in question is in fact deficient, either because it is not possible for those who are visually impaired to navigate, or because it fails to provide information regarding the handicap accessibility features of the hotel, the lawsuit is not likely to be heavily litigated.  That is partly because the equitable remedy that is desired, “fixing” the website, will likely be reasonably simple to accomplish.  The steps necessary to make the website ADA compliant will certainly be less onerous than what would be necessary to perform structural upgrades to the property in a claim arising out of the property being structurally non-compliant.  On the whole, the total exposure which defendant hotels face in the ADA website lawsuits is not terribly substantial. 

Early Settlements of Website Lawsuits

In many cases, it is clear from the outset that the defendant website failed to comply with the ADA.  If it is clear that the website did not comply with the ADA such that there is likely going to be a finding against the defendant hotel, the plaintiff will ultimately recover attorney’s fees that were expended in pursuing the lawsuit, and possibly statutory damages.  Moreover, the defendant will also incur its own attorney fees defending the lawsuit.  In these cases, a strategy of pursuing a reasonable settlement in the early stages is warranted.

However, not every case has merit, and defendants need to be careful not to adopt a knee-jerk response of looking to settle every case that is filed.  The ultimate effect of hotels always looking to settle these lawsuits will be to encourage even more litigation if there is a perception that hotels and/or their insurers will simply settle these lawsuits rather than fighting them. 

“Tester” Lawsuits

Many of the website ADA lawsuits involve claims that have been asserted by “testers.”  In these cases, the “tester” plaintiff trolls hotel websites and third-party booking sites like Orbitz, Expedia, or Travelocity, looking to see if the website is ADA compliant.  If it is not, the plaintiff files suit against the hotel. 

Most of the time, the plaintiff has no plan to actually go to the hotel whose website the plaintiff visits.  Indeed, the plaintiff may not even intend to travel to the state where the hotel is located.  The goal of the plaintiff in this scenario is to get a quick hit, perhaps an amount in the range of $5,000, from the hotel or its insurer to avoid litigation. 

The problem with quick settlements in these types of cases is that it encourages the plaintiffs to keep filing lawsuits.  One plaintiff, Deborah Laufer, has filed in excess of 500 lawsuits across the country, wherein she has claimed that hotel websites have failed to comply with the ADA.  She clearly hopes to reach quick settlements with the defendants in these cases, as even relatively nominal settlements ($5,000.00) would translate into several hundreds of thousands of dollars in recovery if these settlements were reached across the board. 

In the case of the tester lawsuits, a defense strategy of settling the cases at the outset of litigation may not be the appropriate strategy.  While the strategy may lead to an efficient resolution of  that particular case, this approach could have the ultimate effect of actually promoting litigation and driving up the costs of litigation across the industry as a whole. 

Aggressive Defense of Tester Lawsuits

The question then arises, what better options are available to defendants in these tester lawsuits?  It is a rather self-evident proposition that a plaintiff in any lawsuit must be bringing the claim as a result of some actual damage that the plaintiff experienced as a result of the allegedly improper conduct of the defendant.  If defendants could be sued by individuals who were not impacted in any way by the alleged ADA complaints at issue, the scope of litigation that defendants could face could be limitless.

The obvious “damage” in an ADA website discrimination lawsuits would be that the plaintiff could not access the website or could not evaluate whether a particular hotel would be appropriate for the plaintiff to go to because the website did not provide information regarding the ADA compliant aspects of the hotel.  In order for this damage to be real, the plaintiff would have had to have an actual intention to go to the hotel in question, or at a minimum be considering going to the particular hotel. 

A strategy that has been employed in many of these website lawsuits has been to challenge whether the plaintiff has legal standing to bring the lawsuit.  Recall that Deborah Laufer has brought hundreds of these lawsuits throughout the country.  That raises obvious questions with regard to her standing to pursue these lawsuits.  In order for her to have standing to pursue these lawsuits, she would have had to have actual plans to go the hotels in question or the region where the hotel was located.

It is of course absurd to believe that Ms. Laufer, who lives in Florida, actually considered going to many of these hotels.  In fact, it is not even clear that she planned to go to any of them.  Her claim that she had such ambitious travel plans is particularly suspect in light of her underlying disability (she is reportedly confined to a wheelchair), not to mention the fact that many of her lawsuits involve claims of hotels she was allegedly going to visit during the pandemic.  It would strain credibility to believe that the plaintiff had an actual intention to take the vast majority of these trips. 

This is even more obvious considering the specific context within which these lawsuits were filed.  The plaintiff identified herself as a “tester” within the complaint itself.  This is significant because she essentially acknowledges that she is checking websites (“testing them”) to see if they are compliant with the ADA.  The presumptive purpose for her doing this is not to go to a particular website because she intends to actually go into the hotel.  Almost by admission in her complaint, the plaintiff describes herself as merely checking up on hotels to confirm that they complied with the ADA.  Through this process, the plaintiff identifies hotels which have websites that do not comply with the ADA at which point she adds them to her “list” of non-compliant hotels. If, however, the plaintiff did not have an actual plan to go to the hotel, then she would not have standing to bring a lawsuit even if the website violated the ADA. 

Motion to Dismiss Tester Lawsuits

In many instances, defendant hotels have challenged website ADA claims head-on by filing motions to dismiss at the outset of litigation.  In the motion to dismiss, it is argued that the lawsuit should be dismissed because the plaintiff had no actual intention to go to the hotel with the allegedly non-compliant website such that the plaintiff had no legal standing to bring a lawsuit.

A motion to dismiss that is based upon the argument that the plaintiff has no standing to bring a lawsuit can be a very effective and efficient strategy because the issue of whether the website complies with the ADA is completely irrelevant.  Even if the website is non-compliant, the lawsuit would be dismissed at the outset if the plaintiff does not have standing to bring the lawsuit. 

Courts are usually reluctant to dismiss lawsuits in their infancy because courts are disposed to afford plaintiffs the chance to at least try to make their case.  Nevertheless, a court will dismiss a lawsuit if it is clear that the plaintiff had no intention of going to the hotel.  In the case of Laufer v. BRE/ESA P Portfolio, LLC, United States District Court, District of Maryland, Case No. 1:20-cv-01973-SAG, the lawsuit was dismissed at the outset, before the defendant hotel or its insurer had to spend a significant amount of money on attorney fees defending the case, because the court concluded that the plaintiff did not have standing to bring the lawsuit. 

It is worth noting that a defendant who brings a motion to dismiss faces a high bar.  In considering a motion to dismiss, the judge is required to accept all of the allegations in the complaint as valid, even if the allegations seem very suspect.  The motion to dismiss will only be granted if the court concludes that the plaintiff does not have standing to bring the lawsuit even if all of the allegations within the complaint are accepted.  That means that a motion to dismiss based on the argument that the plaintiff does not have standing should only be allowed if the allegations in the complaint (which the judge will accept as legitimate) do not establish that the plaintiff intended to visit the hotel in question.  All a plaintiff needs to do is claim that the plaintiff planned to visit the hotel; even if this claim appears to lack any credibility whatsoever, which would be enough to get past a motion to dismiss. 

Nevertheless, there are instances in which plaintiffs do not make the bare minimum allegations in the complaint that the plaintiff planned to travel to the hotel in question.  Some courts have made it clear that claims in which this allegation is not included in the complaint will be dismissed.  The fact that courts have been willing to dismiss cases in which the plaintiff has not made sufficient allegations within the complaint to have standing to bring the lawsuit should motivate defendant hotels to pursue motions to dismiss in cases which there does not appear to be standing.

Other Options to Seek Dismissal

There is also reason for defendants to adopt an aggressive approach to these lawsuits even where plaintiffs do make the bare minimum allegation that the plaintiff intends to visit the hotel.  In Laufer v. BRE/ESA P Portfolio, LLC, the plaintiff attempted to overcome the motion to dismiss by filing an amended complaint which included an allegation that the plaintiff did in fact intend to visit the hotel.  Notwithstanding the fact that the plaintiff made this allegation, the lawsuit was still dismissed.  In some respects, this result was surprising, as the judge essentially rejected the allegation in the amended complaint as being highly suspect.  In doing so, the judge dismissed the lawsuit based upon a lack of standing because the judge did not find the allegations credible.

The fact that a judge was willing to dismiss one of the website discrimination lawsuits even where there was an allegation that the plaintiff had plans to visit the hotel (in the amended complaint) is encouraging for hotels that choose to pursue motions to dismiss or other options to get the lawsuit dismissed.  The judge appeared to be troubled by the fact that the plaintiff was suing any hotel with a website that was deficient regardless of whether the plaintiff had any intention of ever going to the hotel.  This decision bodes well for hotels in other jurisdictions if judges adopt a similar approach to plaintiffs who appear to be filing these lawsuits as a money grab.  If judges have an unfavorable view of these lawsuits because they see them as vehicles for plaintiffs hoping to reach a quick settlement, they may be more inclined to dismiss lawsuits where the plaintiff arguably does not have standing.

Furthermore, the fact that judges may adopt a cynical view of these cases is important as it relates to the next available option to seek the dismissal of these lawsuits.  In cases where defendant hotels are not successful in getting dubious cases dismissed through a motion to dismiss, or in cases where defendants choose not to pursue a motion to dismiss because the bar is so high, a motion for summary judgment in which the defendant challenges whether the plaintiff has standing to bring the lawsuit is a viable option. 

The legal standard for a motion for summary judgment is more favorable for defendants than the motion to dismiss standard because the judge is not required to simply accept a plaintiff allegation as true.  In website discrimination lawsuits, a defendant hotel can aggressively challenge the credibility of a plaintiff’s allegation that the plaintiff intended to visit the hotel in question.  In the case of Laufer v. BRE/ESA P Portfolio, LLC, the judge clearly did not accept the allegation that the plaintiff, who lives in Florida and has no apparent connection to Maryland, planned to travel to Maryland.  Defendants who seek the dismissal of these lawsuits through the vehicle of a motion for summary judgment may face judges who have a similarly suspicious view of tester plaintiffs, and they may have a good chance of getting these lawsuits dismissed at the summary judgment stage.

Have a Plan

Whether pursuing a motion to dismiss or a motion for summary judgment, or both, defendant hotels should be aggressive in responding to the tester discrimination lawsuits where the issue of whether the plaintiff actually has standing to bring the lawsuit is in question.  It is certainly understandable for hotels or their insurers to adopt the alternative approach of trying to settle these cases and move on.  But where this approach simply encourages further litigation by these plaintiffs, as evidenced most clearly by Deborah Laufer’s hundreds of lawsuits across the country, sending the signal that these lawsuits will be vigorously challenged may be a far better approach.

Regardless of how hotels choose to respond to these lawsuits (settlement or aggressive efforts to get the lawsuits dismissed), hotels which are confronted with these lawsuits should make sure that any ADA deficiencies in their websites are addressed.  The same holds true for those hotels which are ADA non-compliant which have not yet been sued.  All hotels should take steps to make sure that they are not targeted by plaintiffs in future cases, as the goal be to get current lawsuits settled or dismissed while also preventing similar lawsuits from being brought in the future.