Seyfarth Synopsis: After holding a consolidated evidentiary hearing, District Judge Brenda K. Sannes concluded that Plaintiff Deborah Laufer did not have standing to bring 17 lawsuits alleging that hotels failed to provide adequate accessibility information on their online reservations systems.
Last month, June 2021, Judge Sannes of the Northern District of New York dismissed 17 ADA cases brought by plaintiff Deborah Laufer for lack of standing. Laufer, a Florida resident with a disability, has been tormenting the hotel and lodging industry for years, bringing an impressive 614 lawsuits (including appeals) nationwide since 2018, including 63 in the Northern District of New York (NDNY). Her lawsuits are typically identical, alleging that the hotels violated the ADA and corollary state laws by failing to provide sufficient information about accessibility features and barriers at the hotels on their online reservation systems (ORS), as well as third-party reservations websites.
Laufer asserts these claims as a “tester,” someone who advocates for the rights of similarly situated disabled individuals by asserting civil rights claims against allegedly non-compliant businesses, even if they have no intention of ever being a customer. Laufer’s initial complaints in the 17 cases did not allege that she has, or ever had, any plans to stay in any defendant’s hotel or visit the area near any defendant’s property.
On November 19, 2020, Judge Sannes issued an order in Laufer v. Laxmi & Sons, LLC dismissing all of Laufer’s then-active lawsuits in the NDNY for lack of standing, finding that visiting a non-compliant ORS solely as a tester was not sufficient for standing. The Court found that to allege the type of “concrete and particularized” past injury and likelihood of future injury that would give her standing in this context, Laufer would need to demonstrate that (1) she “had a purpose for using the [ORS] that the complained-of ADA violations frustrated” other than to just test the websites, and (2) “her intent to return to the [ORS] to book a room, or at least to obtain information that would allow her to decide whether to book a room, is plausible.” Judge Sannes then allowed Laufer to move to amend her complaints in each case. Laufer moved to amend her complaints in most of her cases, and included allegations that both her planned future visits to each defendant’s ORS and her visits to those ORSs prior to filing her complaints were motivated in part by her desire to travel to the area near each defendant’s hotel. While the Court found that most of the proposed amended complaints sufficiently alleged standing on their face, it questioned Laufer’s stated intention to travel to the area near each particular defendant’s hotel, and thus whether she had a genuine need to utilize the accessibility information on each defendant’s ORS.
Accordingly, following Second Circuit guidance in Harty v. Simon Prop. Grp., 428 F. App’x 69, 72 (2d Cir. 2011), the Court ordered an evidentiary hearing for all 17 cases to probe Laufer’s claim that she intended to visit the Defendant’s ORS because she was planning a trip across New York State. Plaintiff testified that she has family in New York and travels frequently to visit them, and that she has considered relocating to New York. Laufer also named specific sites and locations within the vicinity of the Defendant’s hotel that she would like to visit.
The Court was not convinced and dismissed all of the cases for lack of subject matter jurisdiction. The Court stated as follows:
Plaintiff’s problem is simply one of credibility: she has sued owners of hotels located in virtually every part of New York State, and in hundreds more areas throughout many other states (including some that are very far-flung from New York, such as Colorado and Texas). She originally asserted that she visited these hotels’ ORSs simply for the purpose of determining whether they complied with the requirements of 28 C.F.R. § 36.302(e), and it was only after the Court questioned Plaintiff’s standing that she sought to add allegations avowing an intention to travel throughout New York State, and stay in hotels in “every area” along the way.
It defies credibility that, for approximately a year and a half, Plaintiff has been planning a trip involving such a massive time and financial commitment, which she intends to begin a short time from now and complete before her granddaughter begins school in the fall, and yet she cannot answer the most basic questions regarding how much time she is setting aside for the trip, which specific locations she intends to travel to, how much the trip will cost, how she will fund it, how the inevitably lengthy trip comports with her daughter’s professional, educational and child-care obligations, or anything else about the trip aside from her vague desire to travel “all over” New York State and the rest of the country. Even for the most efficient and financially prudent of travelers, a trip covering even a selection of the places that Plaintiff has targeted with her lawsuits would inevitably take many months and cost thousands of dollars or more. Indeed, the many locations Plaintiff has asserted an intent to travel to in New York alone span the entire state and are separated by many hours by car.
Judge Sannes’ decision will likely put an end to Laufer’s website lawsuits in the Northern District of NY, but not necessarily elsewhere. Laufer may also seek to appeal the decision which would force the defendants to spend even more money to continue defending these lawsuits. Therein lies the quandary for defendants in the ADA Title III lawsuits: It is usually more expensive to fight these lawsuits (even when the prospect of winning is high) then it is to settle them early.
Edited by Kristina Launey