UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

DEBORAH LAUFER, Individually,

Plaintiff,

v.

ESA P PORTFOLIO L.L.C. d/b/a

EXTENDED STAY AMERICA -

ROCKFORD, a Foreign Limited Liability

Company,

Defendant.

_______________________________________/

:

:

:

:

:

:

:

:

:

:

:

:

:

Case No. 1:20-cv-04594

PLAINTIFF’S RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY

In Laufer v. BRE/ESA P Portfolio, LLC, SAG-20-1973, DE 17 (D.Md. 11/19/20), one court

in the District Of Maryland held that Laufer lacks standing. The Court did not issue any final ruling,

but instead dismissed the complaint without prejudice - perhaps to thwart appeal. Plaintiff filed a

motion requesting that the court either convert its decision into a final order or certify for

interlocutory appeal. For the reasons set forth below, Plaintiff submits that this ruling is flawed and

will be reversed on appeal.

The BRE/ESA case essentially followed a prior ruling from the same District, Laufer v. Ft.

Meade Hospitality, LLC, 2020 WL 6585955, at *3 (D.Md. Nov. 10, 2020), which denied a motion

for default judgment without the benefit of any briefing on the issue of standing. Because this

involved a denial of default judgment and defendant has not appeared, Plaintiff will not likely be

appealing this case at this point.

1

Case: 1:20-cv-04594 Document #: 23 Filed: 12/07/20 Page 1 of 7 PageID #:524
A. The Court Did Not Consider Applicable Law

First, like the Ft. Meade case, the BRE/ESA opinion is completely devoid of any

acknowledgment of the Supreme Court’s recognition of informational injury in Havens Realty,

Spokeo, and Akins, or the slew of circuit courts that also recognize informational injury, or the plain

and unambiguous language of the applicable provisions of the Statute and Regulation, or the rules

of statutory construction. In short, the BRE/ESA court inserted its own additional requirement into

the statute without having considered any of the authorities that have been presented to this Court

in Plaintiff’s prior briefing.

B. The Meade Court Mistakenly Relied On Griffin

The court relied on Griffin v. Dep't. of Labor Fed. Credit Union, 912 F.3d 649, 653 

(4th Cir. 2019) and viewed it as “decisive”. While the court acknowledged the disclaimer expressed

in Griffin, wherein it confined its holding to whether “ this plaintiff who is barred by law from

making use of defendant's services may sue under the ADA for an allegedly deficient website”, it

overlooked Griffin’s other disclaimer that it was not considering “ the rights generallyof people with

disabilities to sue for Internet-based harms under the ADA...” Id. at 652, 653 (emphasis added). 

Griffin was closely followed by the Seventh Circuit in Carello v. Aurora Policemen Credit Union,

930 F. 3d 830 (7th Cir. 2019). Both Griffin and Carello involved claims by a plaintiff who was

legally barred from ever availing himself of the services of the defendants’ credit unions.

Significantly, the Carello Court distinguished itself from the sorts of websites applicable to

the case at bar, stating: “Carello does not complain that the Credit Union withheld information....” 

Id. at 835 (emphasis added). Thus, the Carello Court expressly distinguished the statute at issue

therein with the type of statute and regulation at issue herein - which prohibit the withholding of

2

Case: 1:20-cv-04594 Document #: 23 Filed: 12/07/20 Page 2 of 7 PageID #:525
information. Indeed, the Carello Court recognized that informational injury is actionable when the

defendant fails to provide information to a plaintiff that a law entitles him to obtain and review for

some substantive purpose. Id. at 835. “Once that occurs, there is no additional requirement that the

plaintiff suffer any additional harm beyond his or her failure to receive the information that the law

renders subject to disclosure. Id., citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Specifically,

the Carello Court stated:

An informational injury occurs when the defendant refuses to provide the plaintiff with

information that a law—typically, a sunshine law—entitles him to obtain and review for

some substantive purpose. See, e.g., Fed. Election Comm'n v. Akins, 524 U.S. 11, 21, 24-25,

118 S. Ct. 1777, 141 L. Ed. 2d 10 (1998) (concluding that voters' inability to obtain

information subject to disclosure under the Federal Election Campaign Act of 1971 is a

sufficiently concrete injury); Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 449, 109 S.

Ct. 2558, 105 L. Ed. 2d 377 (1989) (explaining that, to satisfy Article III's injury

requirement, advocacy organizations requesting information subject to disclosure under the

Federal Advisory Committee Act need only show "that they sought and were denied" the

information); Casillas [v. Madison Ave., Assoc., 926 F.3d 329,] 337-38 [(7th Cir. 2019)]

("[Akins and Public Citizen] hold that the denial of information subject to public disclosure

is one of the intangible harms that Congress has the power to make legally cognizable."

(emphasis omitted)). In such cases, a plaintiff "need not allege any additional harm beyond"

his failure to receive information that the law renders subject to disclosure. Spokeo, 136 S.

Ct. at 1549.

In this regard, Carello squarely establishes that this Court must recognize Plaintiff’s right to

sue. The Regulation was promulgated for the purpose of providing a right of this plaintiff and other

disabled persons to the right to book a room and further requiring the provision of specific

information regarding accessibility at a hotel. Recently, one court applied Carello for the

proposition that it supports standing for online reservations discrimination without any requirement

that the plaintiff intend to visit the area in which the hotel is located. 

In Laufer v. U.L.S.T., LLC dba Waterfront Hotel &Marina,2020 U.S. Dist. LEXIS 206417 (N.D.Ill.

11/4/20) (“Waterfront”), one court held that Laufer has standing. First, the Waterfront Court held

3

Case: 1:20-cv-04594 Document #: 23 Filed: 12/07/20 Page 3 of 7 PageID #:526
that Laufer has standing even in the absence of any plans to travel to the area. Id, at 12-13. The Court

then held that the types of informational injury suffered byLaufer fell within the category recognized

by the CarelloCourt as having a complete injury-in-fact with nothing additional required. Id. On this

point, the Waterfront Court reasoned:

What Carello reinforces is that absent such a legal barrier, informational and dignitary

injuries do suffice to support Article III standing. And that is exactly what Laufer alleges

here. She claims that the inadequate disclosures about Waterfront’s accessibility

“deprive her of the information required to make meaningful choices for travel,” and that she

“suffer[s] ... frustration and humiliation as the result of the discriminatory conditions

present” on the hotel’s booking pages. [] Thus, even absent a concrete plan to visit

Johnsburg, Laufer has standing to bring this ADA suit.

...

Waterfront next submits that the complaint fails to state a claim, arguing that the ADA

“requires the hotel to accommodate Ms. Laufer’s disabilities [only] if she desires to stay

there.” [] As explained above, however, Laufer’s alleged injury is not the inability to stay at

Waterfront; rather, it is the inability to determine whether she can stay there, as well as the

stigmatic injury resulting from Waterfront’s failure to make accessibility information

available. 

For these reasons, the BRE/ESA Court’s reliance on Griffin was erroneous.

C. The BRE/ESA Court Erroneously Relied On Cases Such As Mann And

Hernandez

The BRE/ESA court also cited several cases on both sides of the issue of whether or not intent

to book is required, but did not provide any analysis as to why one set of decisions should be

followed and the other decisions ignored. In this regard, the court followed other similar decisions

in Laufer v. Mann Hosp. LLC, 2020 U.S. Dist. LEXIS 191630 (W.D. Tx. Sept. 30, 2020);

Rutherford v. JC Resorts, LLC, 2020 U.S. Dist. LEXIS 130467 (S.D. Cal. July 23, 2020);

and Hernandez v. Caesars License Co., LLC, 2019 U.S. Dist. LEXIS 208551 (D.N.J. Dec. 

4, 2019). 

4

Case: 1:20-cv-04594 Document #: 23 Filed: 12/07/20 Page 4 of 7 PageID #:527
Like the BRE/ESA and Ft. Meade Courts, none of these decisions considered the applicable

law, but instead merely inserted their own additional term into the statute. The only exception is

Hernandez, which premised its holding on the basis that the Supreme Court’s decision in Havens

Realty Corp. v. Coleman, 455 U.S. 363 (1982), was inapplicable1

. In this regard, the Hernandez

court reasoned that Havens Realty was about intentional discrimination and differential treatment

and NOT about informational injury. This is completely contrary to all prevailing interpretation,

including the plain language found in the Havens Realty opinion. See Havens Realty, 455 U.S. at

373-74 (deprivation of plaintiffs’ right to truthful information is actionable injury); Akins, 524 U.S.

at 21(citing Havens Realty on the point that “[i]ndeed, this Court has previously held that a plaintiff

suffers an "injury in fact" when the plaintiff fails to obtain information which must be publically

disclosed pursuant to a statute..... ). This is also inconsistent with all the other authorities cited on

this point (cited in Plaintiff’s earlier brief), which cite Havens Realty for the proposition that it stands

for the right to information. See, e.g. Haddad v. Midland Funding, LLC, 255 F. Supp. 3d 735, 739-

40 (N.D. Ill. 2017)(“Havens Realty turns only on the misleading nature of the representations, not

on the racial motivation behind them”).

The Hernandez court cited two other court holdings in support of its proposition that intent

to book a room is required. However, neither opinion stands for such a holding. One case cited by

the Hernandez Court is Juscinska v. Paper Factory Hotel, LLC, 2019 U.S. Dist. Lexis 92550

(S.D.N.Y. 2019). However, the Juscinska court only noted that the plaintiff had the intention of

booking a room. It never held that such an intent was required. Noting that the plaintiff intended to

1The BRE/ESA, Ft. Meade, Mann and Rutherford courts dealt with Havens Realty by

ignoring it entirely.

5

Case: 1:20-cv-04594 Document #: 23 Filed: 12/07/20 Page 5 of 7 PageID #:528
book a room is far different from holding that this is a requirement of the law. The second case cited

by the Hernandez Court was Coral Reef Of Key Biscayne Developers, Inc., 2018 U.S. Dist. Lexis

87457. However, the Poschmann decision actually stated that solely testing a website system for

compliance satisfies standing. Poschmann, 2018 U.S. Dist. Lexis 87457 at *8 (“Plaintiff intends to

return to the Website within thirty days to determine whether the Hotel is accessible to him, and, if

so, to reserve a room at the Hotel or to test the Hotel's Website reservation system for its

compliance with the ADA.”)(emphasis added). By this language, the Poschmann opinion held the

exact opposite of what the Hernandez court stated. In sum, the Hernandez decision is entirely

founded on its own misreading of other cases. 

D. Conclusion

For the reasons set forth in Plaintiff’s earlier briefing, the BRE/ESA, Ft. Meade, Mann,

Hernandez and Rutherford decisions are all completely contrary to Supreme Court and circuit court

precedent, contrary to the plain words of the statute and regulation, and contrary to the rules of

statutory construction. The fact that some decisions cite the others and add to their ranks does not

make their rulings any better or add to the weight of law. Basically, Hernandezissued a completely

flawed opinion, only to be blindly followed by other courts. Hernandez was never appealed.

However, the Mann decision is on appeal to the Fifth Circuit and Plaintiff intends to appeal the

BRE/ESA decision to the Fourth Circuit.

Respectfully submitted, 

Attorney for Plaintiff:

By: /s/ Kimberly A. Corkill, Esq.

6

Case: 1:20-cv-04594 Document #: 23 Filed: 12/07/20 Page 6 of 7 PageID #:529
Kimberly A. Corkill, Of Counsel

Thomas B. Bacon, P.A.

7 N. Coyle Street

Pensacola, FL 32502

ph. 850-375-3475

fx 877-828-4446

kimberlyatlaw@gmail.com

Florida Bar Id. No. 84942

Thomas B. Bacon, Esq.

Thomas B. Bacon, P.A. 

644 North Mc Donald St.

Mt. Dora, FL 32757

ph. (850)375-3475

kimberlyatlaw@gmail.com

Florida Bar. Id. No. 139262

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served via the Court's

electronic filing system upon all parties of record this December 7, 2020.

By: /s/ Kimberly A. Corkill, Esq.

7

Case: 1:20-cv-04594 Document #: 23 Filed: 12/07/20 Page 7 of 7 PageID #:530