Similar to Deborah Laufer and Saim Sarwar, both subjects of prior legal alerts, Owen Harty is the plaintiff in more than 500 lawsuits across the United States, including roughly 70 lawsuits filed in the US District Court for the Southern District of New York. Since 2015, Harty has filed one lawsuit after another, generally alleging in each instance the online reservation system for the property—whether directly operated by the defendant or indirectly operated through third-party websites—is inaccessible to Harty and otherwise fails to provide certain information concerning accessible features of the property in violation of the Americans With Disabilities Act (ADA) and other laws.
At issue in many of these lawsuits is whether the plaintiff has standing, which is a threshold, constitutional requirement that must exist in every case. In the ADA context, standing exists where (1) the plaintiff alleged past injury under the ADA, (2) it was reasonable to infer the discriminatory treatment would continue, and (3) it was reasonable to infer, based on the past frequency of the plaintiff’s visits and the proximity of the defendant’s public accommodation to the plaintiff’s home, that the plaintiff intended to return to the subject location. Harty initially found some success and withstood challenges to dismissal based on lack of standing. However, the tides have recently changed, which is good news for the thousands of hotels, motels, and other places of lodging named as defendants in these and other website accessibility lawsuits.
In Harty v. West Point Realty, the defendant, a Holiday Inn franchisee, filed a motion to dismiss, arguing the complaint’s allegations, even if accepted as true, failed to establish the existence of a real threat of future injury and, therefore, Harty failed to establish standing, warranting dismissal of his complaint. In a decision dated August 7, 2020, District Judge Vincent Briccetti agreed with the defendant, ruling Harty failed to adequately allege a real threat of future injury sufficient to establish standing. Judge Briccetti found Harty’s allegation that he intended to visit the website “in the near future” and thus will be harmed by the alleged ADA violations was vague and conclusory, noting the complaint’s allegations suggest only that Harty intended to return to the website to test for statutory violations. In other words, Judge Briccetti noted, Harty failed to assert factual allegations from which the court could reasonably infer Harty intended to return to the website to book a room or utilize the defendant’s services. Judge Briccetti also found Harty’s allegations failed to demonstrate a plausible intention or desire to return to the website but for the alleged barrier to access, which was an additional reason warranting dismissal of the complaint based on lack of standing.
Harty has since appealed Judge Briccetti’s decision, and that case is currently on an expedited appeal to the US Court of Appeals for the Second Circuit. Harty’s brief is due today, November 4, 2020, and West Point Realty’s brief is due on December 9, 2020. A date for oral argument has not been set. Barclay Damon will continue to closely monitor the Harty v. West Point Realty case, the outcome of which will be binding precedent on several federal district courts where numerous standing challenges are pending against serial “tester” plaintiffs.
If you have any questions regarding the content of this alert, please contact Rob Thorpe, counsel, at rthorpe@barclaydamon.com; Anneliese Aliasso, associate, at aaliasso@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area or Hotels, Hospitality & Food Service Team.