Serial ADA plaintiff targets Colorado Motel for online reservation
In August 2020, Cindy and Randy Looper were told they were facing a federal prosecution for alleged violations of the Americans with Disabilities Act in connection with Elk Race Inn, a motel they owned in Craig.
“Confusion and disbelief,” says Cindy Looper, describing the feelings she and her husband had when they learned they should defend themselves against the allegations of the Colorado United States District Court. A Florida plaintiff named Deborah Laufer had filed a complaint alleging that the Loopers failed to properly identify the accessibility of the motel, which typically caters to hunters and workers, on third-party booking sites such as booking.com and hotels.com.
Title III of the ADA, in effect since 1990, requires that private businesses, including motels, be fully accessible to people with disabilities. The complaint noted that Laufer has a disability and uses a wheelchair to get around. Due to the “discriminatory terms” of the Elk Run Inn’s online reservation system, Laufer “suffered and continues to suffer from frustration and humiliation,” the complaint states, adding that the Loopers “were depriving [Laufer] equality of opportunity offered to the general public.
But Loopers and Craig’s government officials argue that the Elk Run Inn, a 23-room motel dating from around 1948 with full kitchens in every room, is grandfathered in the ADA, meaning that Loopers have never needed to provide ADA-accessible housing. As they searched for their accuser, the Loopers learned that Laufer had filed hundreds of other lawsuits making similar allegations across the country, including dozens in Colorado.
“[Laufer] is an advocate for the rights of disabled people in the same situation and is a “tester” in order to assert their civil rights and to monitor, ensure and determine whether public accommodation places
and their websites are ADA compliant, ”noted Laufer’s initial complaint.
Laufer is not the only “tester” to have filed hundreds of ADA complaints across the country. Such a practice is fairly standard for ADA Title III plaintiffs, much to the frustration of companies that are hit by these accusations. June 2019 Westword the cover story explained how restaurant owner Bailey sued lawyers who initially sued him for alleged ADA violations; this trial, which claims ADA lawyers engaged in a criminal racketeering, is still ongoing.
“If it weren’t for these people, these ‘serial litigants’, every place would remain inaccessible to people with disabilities,” said Tom Bacon, lawyer for Laufer in Florida. In fact, he adds, serial litigants like Laufer “see themselves as the person who wouldn’t go in the back of the bus.”
Decisions resulting from Laufer’s lawsuits have been all over the map. Some cases resulted in settlements of a few thousand dollars, while others were less favorable to the claimant. In a case in federal court in Maryland, a judge criticized Laufer for lacking credibility.
“The plaintiff’s approach to this ADA litigation appears to prioritize systematic and prolific filings over the quality and depth of legal argument, producing hundreds of nearly identical lawsuits using cookie cutter language, regardless of location. where the mansions are located, or any other party or jurisdiction – specific details “, Judge Stephanie A. Gallagher of Maryland District Court wrote in December 2020 a scathing reprimand against Laufer and a Georgian lawyer representing her in this particular case. “The intention of Congress in creating the ADA was to ensure that people with disabilities have equal access to public housing, not to facilitate the creation of litigation factories to allow lawyers to collect the fees of hundreds of lawsuits while by obstructing federal court records. mind, the Court warns the plaintiff and her counsel that future filings in her existing Maryland cases, and future lawsuits brought in the same vein so long as the obstacles identified in this notice persist, will be subject to careful consideration for the futility and frivolity, including the possible award of attorneys’ fees as penalties. ”
Bacon, who was reprimanded in 2019 by a Florida federal judge for failing to follow court proceedings regarding the ADA litigation, is also handling the Maryland case’s appeal. The judge “hates us,” he said. “It was one of those circumstances where there could be no set of facts the judge was going to let go of.”
Last month, Colorado District Court Judge Nina Y. Wang ruled Laufer lacked standing to sue the Loopers. “There is no allegation in the complaint that Ms Laufer intended to stay at [the motel] for the foreseeable future and that the lack of information about accessible rooms hampered its ability to do so, ”Wang wrote.
In November, Laufer filed an affidavit related to her case in which she said, “My niece lives in Colorado, I have visited her several times and I visit her about once a year. I plan to get there as soon as the Covid crisis is over and it is safe to travel. I plan to travel statewide and have to stay in hotels when I go. Because the defendant’s hotel and so many other hotel websites do not allow booking accessible rooms and fail to provide enough information about the accessibility or not of hotel features, it is extremely difficult for me to make a meaningful choice because I am deprived of the information I need to make my plans.
But Wang was not convinced. “Although Ms. Laufer indicates that her niece lives in Colorado, she does not indicate that her niece lives near Craig, Colorado, or that she intends to visit Craig, Colorado as part of her” trip. statewide. ”The court further notes the striking similarity between Ms Laufer’s statement offered in this action and others – not as a test of credibility (which is not properly determined at the stage of the motion to dismiss) – but as another clue that his alleged injury is not sufficiently specific, concrete or imminent, ”Wang wrote in his ruling on Laufer’s lack of standing in the case.
“I don’t want to downplay the fact that providing uneven information on the hotel’s website is a violation of the law, but this – in my opinion based on the requirements of the current law – does not easily satisfy the ‘requirement that the applicant must show a specific intention to return to the public accommodation or to go to a public accommodation in the near future,’ says Kevin Williams, director of the legal program at the Colorado Disability Coalition.
Williams holds legitimate ADA testers in high regard, seeing them on the same level as civil rights activists who sat down at separate meal counters decades ago in order to force change. But “vague claims of ‘someday intentions’ to go to a place or use a hotel are insufficient to meet the requirements of the regulations,” he explains.
Bacon has previously filed a notice of appeal on behalf of Laufer in the 10th Circuit Court of Appeal, stating that he disagreed with Wang’s legal analysis. “The statutory paragraphs that apply to online reservation systems do not require the applicant to intend to do anything with this information,” Bacon said.
The Loopers sold the Elk Run Inn in December, after putting it on the market three years ago. Since Laufer’s complaint specifically named them, however, the couple have yet to face trial.
“We can’t let her get away with this,” says Randy Looper. But at least the two won’t have to break the bank to litigate this case.
Their lawyer, based in Denver Stephen rotter of The Workplace Counsel, stopped charging Loopers a long time ago. “I only billed my clients for a few hours of work and did the rest of the work for free,” Rotter said, adding that while he could get referrals from the case, he represents the Loopers against. Laufer’s claim because he just doesn’t “feel like it’s right.”
Rotter questions the motives of Laufer and the lawyers involved in his cases. In late 2020, he emailed other defense attorneys who had defended Laufer’s lawsuits; since then they have shared information and ideas.
“Most defendants are content with somewhere between $ 3,000 and $ 6,000,” Rotter said, adding that he believes Laufer and the lawyers suing on his behalf “know the cost of these litigation is much higher. than the settlement “, which leads companies to agree to settle quickly.
While Bacon notes that Colorado ADA plaintiffs are entitled to a nominal amount of successful statutory damages, many other states are not. “People with disabilities are usually fed up with the fact that places just aren’t accessible to them,” he says.
“We’re suing, we’re demanding our litigation fees, costs and expenses. We’re not making a million dollars,” Bacon says. “We have offered to settle these cases for crumbs.”
But so far, the Loopers aren’t interested in settling. “We don’t want to pay the extortionists,” Cindy says.