As an update to a prior legal alert, we are pleased to report an important victory for the hospitality industry—particularly for hotels, motels, and other places of lodging—in the area of website accessibility litigation.
The United States Court of Appeals for the Second Circuit, which has jurisdiction over appeals from federal courts in New York State, Connecticut, and Vermont, recently upheld the dismissal of a complaint brought against a Holiday Inn franchisee by Owen Harty, who in recent years has filed hundreds of lawsuits targeted primarily, if not exclusively, at the hospitality industry.
As previously reported by Barclay Damon on numerous occasions, Harty is one of several serial plaintiffs targeting hotels, motels, and other places of lodging across the country. The lawsuits generally allege that the online reservation system for these properties—whether directly operated by the business or indirectly operated through third-party websites (e.g., Expedia, Orbitz, Hotels.com, Booking.com)—fails to provide certain information concerning accessible features of the properties in violation of the Americans With Disabilities Act (ADA) and other laws.
Harty, who allegedly uses a wheelchair, sued West Point Realty, a Holiday Inn franchise, after visiting the company’s website. He alleged that the website failed to identify and describe accessible features in the hotel and guest rooms offered through the online reservation systems in enough detail to reasonably permit individuals with disabilities to determine whether the hotel or guest room meets accessibility needs. However, Harty, who lives in Florida, admitted that when he visited the website he had no intention of actually staying at the Holiday Inn owned by West Point Realty and that he was acting as a “tester” to advocate for the rights of similarly situated disabled persons by making sure the website complied with the ADA. West Point Realty moved to dismiss the lawsuit, arguing that Harty lacked standing, which is a threshold, constitutional requirement that must exist in every case.
In order to have standing, a plaintiff must establish that (i) they have an injury in fact, (ii) there is a causal connection between the injury and the conduct complained of, and (iii) their injury will be redressed by a favorable judicial decision. Judge Vincent Briccetti of the United States District Court for the Southern District of New York (SDNY) previously agreed with West Point Realty that Harty’s intention to visit the website “in the near future” and “possibly” use it to reserve a room was too vague and conclusory to demonstrate an injury. Following Harty’s appeal of that SDNY decision, the Second Circuit affirmed.
The Second Circuit, citing a recent decision issued by the Supreme Court of the United States, ruled that a plaintiff has standing to bring a claim for monetary damages related to the violation of a statute only if the plaintiff can demonstrate a current or past harm beyond the statutory violation itself. In other words, a mere risk of future harm, without more, is not enough. The Second Circuit in this regard noted the following:
Harty does not allege anywhere in his complaint that he was using the website to arrange for future travel. On the contrary, he acknowledges that his review of West Point Realty’s website was done in his capacity as a “tester” of ADA compliance, not as a prospective traveler seeking a wheelchair-accessible hotel in West Point. As the Supreme Court has made clear, Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.
The Second Circuit also rejected Harty’s argument that he suffered an “informational injury” because the website did not provide him with enough information to make a meaningful choice for travel as required by the ADA. According to the federal appellate court, Harty needed, but failed, to show that he had an interest in using the information beyond bringing his lawsuit.
The Second Circuit’s decision in Harty v. West Point Realty is binding precedent on the federal district courts in New York State, Connecticut, and Vermont, where hundreds if not thousands of similar website accessibility lawsuits are pending. Barclay Damon will continue to monitor the development of these cases.
If you have any questions regarding the content of this alert, please contact Rob Thorpe, partner, at rthorpe@barclaydamon.com; Payne Horning, associate, at phorning@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area or Hotels, Hospitality & Food Service Team.