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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION 

Deborah Laufer

Plaintiff,

v.

233 E. Ontario Hotel Propco LLC,

Defendant.

Case No.: 1:20−cv−04593 

Honorable Elaine E. Bucklo

DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO

PLAINTIFF’S COMPLAINT

Defendant, 233 E. ONTARIO HOTEL PROPCO LLC, (“Defendant”) by and through its 

attorneys, LEWIS BRISBOIS BISGAARD & SMITH, LLP, for its Answer and Affirmative 

Defenses to the complaint of Plaintiff, Deborah Laufer (“Plaintiff”), states as follows:

PARTIES

1. Plaintiff is a resident of Pasco County, Florida, is sui juris, and qualifies as an 

individual with disabilities as defined by the ADA. Plaintiff is unable to engage in the major life 

activity of walking more than a few steps without assistive devices. Instead, Plaintiff is bound to 

ambulate in a wheelchair or with a cane or other support and has limited use of her hands. She is 

unable to tightly grasp, pinch and twist of the wrist to operate. Plaintiff is also vision impaired. 

When ambulating beyond the comfort of her own home, Plaintiff must primarily rely on a 

wheelchair. Plaintiff requires accessible handicap parking spaces located closet to the entrances of 

a facility. The handicap and access aisles must be of sufficient width so that she can embark and 

disembark from a ramp into her vehicle. Routes connecting the handicap spaces and all features, 

goods and services of a facility must be level, properly sloped, sufficiently wide and without 

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cracks, holes or other hazards that can pose a danger of tipping, catching wheels or falling. These 

areas must be free of obstructions or unsecured carpeting that make passage either more difficult 

or impossible. Amenities must be sufficiently lowered so that Plaintiff can reach them. She has 

difficulty operating door knobs, sink faucets, or other operating mechanisms that tight grasping, 

twisting of the wrist or pinching. She is hesitant to use sinks that have unwrapped pipes, as such 

pose a danger of scraping or burning her legs. Sinks must be at the proper height so that she can 

put her legs underneath to wash her hands. She requires grab bars both behind and beside a 

commode so that she can safely transfer and she has difficulty reaching the flush control if it is on 

the wrong side. She has difficulty getting through doorways if they lack the proper clearance.

ANSWER: Defendant lacks sufficient information to admit or deny the allegations in the 

foregoing paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict 

proof thereof.

2. Plaintiff is an advocate of the rights of similarly situated disabled persons and is a 

“tester” for the purpose of asserting her civil rights and monitoring, ensuring, and determining 

whether places of public accommodation and their websites are in compliance with the ADA.

ANSWER: Defendant lacks sufficient information to admit or deny the allegations in the 

foregoing paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict 

proof thereof.

3. According to the county property records, Defendant owns a place of public 

accommodation as defined by the ADA and the regulations implementing the ADA, 28 CFR 

36.201(a) and 36.104. The place of public accommodation that the Defendant owns is a place of 

lodging known as IVY HOTEL, 233 E Ontario St., Chicago, IL 60611, and is located in the County 

of COOK (hereinafter “Property”).

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ANSWER: Defendant admits that Defendant owns the Property so identified. As to the 

balance of the allegations, Defendant neither admits nor denies the allegations as alleged in the 

foregoing paragraph of Plaintiff’s Complaint as they concern legal conclusions.

4. Venue is properly located in the NORTHERN DISTRICT OF ILLINOIS because 

the injury occurred in this district.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions.

5. Pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343, this Court has been given 

original jurisdiction over actions which arise from the Defendant’s violations of Title III of the 

Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. See also 28 U.S.C. § 2201 and § 2202.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions.

6. As the owner of the subject place of lodging, Defendant is required to comply with 

the ADA. As such, Defendant is required to ensure that it’s place of lodging is in compliance with 

the standards applicable to places of public accommodation, as set forth in the regulations 

promulgated by the Department Of Justice. Said regulations are set forth in the Code Of Federal 

Regulations, the Americans With Disabilities Act Architectural Guidelines (“ADAAGs”), and the 

2010 ADA Standards, incorporated by reference into the ADA. These regulations impose 

requirements pertaining to places of public accommodation, including places of lodging, to ensure 

that they are accessible to disabled individuals.

ANSWER: Defendant neither admits nor denies the allegations as alleged in paragraph 4

of Plaintiff’s Complaint as they concern legal conclusions.

7. More specifically, 28 C.F.R. Section 36.302(e)(1) imposes the following 

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requirement: Reservations made by places of lodging. A public accommodation that owns, leases 

(or leases to), or operates a place of lodging shall, with respect to reservations made by any means, 

including by telephone, in-person, or through a third party – (i) Modify its policies, practices, or 

procedures to ensure that individuals with disabilities can make reservations for accessible guest 

rooms during the same hours and in the same manner as individuals who do not need accessible 

rooms; (ii) Identify and describe accessible features in the hotels and guest rooms offered through 

its reservations service in enough detail to reasonably permit individuals with disabilities to assess

independently whether a given hotel or guest room meets his or her accessibility needs; (iii) Ensure 

that accessible guest rooms are held for use by individuals with disabilities until all other guest 

rooms of that type have been rented and the accessible room requested is the only remaining room 

of that type; (iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms 

and ensure that the guest rooms requested are blocked and removed from all reservations systems; 

and (v) Guarantee that the specific accessible guest room reserved through its reservations service 

is held for the reserving customer, regardless of whether a specific room is held in response to 

reservations made by others.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions.

8. These regulations became effective March 15, 2012.

ANSWER: Defendant admits only that the foregoing statement appears to be a recital of 

the contents of a portion of public law.

9. Defendant, either itself or by and through a third party, implemented, operates, 

controls and or maintains websites for the Property which contains an online reservations system. 

These websites are located at hotels.com, booking.com, orbitz.com, priceline.com, agoda.com, 

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trip.com and expedia.com. This term also includes all other websites owned and operated by 

Defendant or by third parties to book or reserve guest accommodations at the hotel. The purpose 

of these websites is so that members of the public may reserve guest accommodations and review 

information pertaining to the goods, services, features, facilities, benefits, advantages, and 

accommodations of the Property. As such, these websites are subject to the requirements of 28 

C.F.R. Section 36.302(e).

ANSWER: Defendant admits that Defendant owns the Property and maintains a website 

through which it books reservations for persons intending to patronize the business at its Property. 

As to the balance of the allegations, Defendant neither admits nor denies the allegations as alleged 

in the foregoing paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent 

a response is required, Defendant lacks sufficient information to admit or deny the allegations in 

the foregoing paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict 

proof thereof.

10. Prior to the commencement of this lawsuit, Plaintiff visited the websites on multiple 

occasions for the purpose of reviewing and assessing the accessible features at the Property and 

ascertain whether they meet the requirements of 28 C.F.R. Section 36.302(e) and her accessibility 

needs. However, Plaintiff was unable to do so because Defendant failed to comply with the 

requirements set forth in 28 C.F.R. Section 36.302(e). As a result, Plaintiff was deprived the same 

goods, services, features, facilities, benefits, advantages, and accommodations of the Property 

available to the general public. Specifically, expedia.com did not comply with the Regulation 

because it did not identify accessible rooms, did not allow for booking of accessible rooms and 

provided insufficient information as to whether the rooms or features at the hotel are accessible; 

hotel amenities, room types and amenities are all listed in detail; no information was given about 

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accessibility in the hotel other than the statements “Accessible bathroom”, “Wheelchair-accessible 

parking”, and “In-room accessibility”. Hotels.com did not comply with the Regulation because it 

did not identify accessible rooms, did not allow for booking of accessible rooms and provided 

insufficient information as to whether the rooms or features at the hotel are accessible; hotel 

amenities, room types and amenities are all listed in detail; no information was given about 

accessibility in the hotel other than the statements “Accessible bathroom”, “Wheelchair-accessible 

parking”, and “In-room accessibility”. Booking.com did not comply with the Regulation because 

it did not identify accessible rooms, did not allow for booking of accessible rooms and provided 

insufficient information as to whether the rooms or features at the hotel are accessible; hotel 

amenities, room types and amenities are all listed in detail; no information was given about 

accessibility in the hotel other than the statement “Facilities for disabled guests”. Orbitz.com did 

not comply with the Regulation because it did not identify accessible rooms, did not allow for 

booking of accessible rooms and provided insufficient information as to whether the rooms or 

features at the hotel are accessible; hotel amenities, room types and amenities are all listed in detail; 

no information was given about accessibility in the hotel other than the statements “Accessible 

bathroom”, “Wheelchair-accessible parking”, and “In-room accessibility”. Priceline.com did not 

comply with the Regulation because it did not identify accessible rooms, did not allow for booking 

of accessible rooms and provided insufficient information as to whether the rooms or features at 

the hotel are accessible; hotel amenities, room types and amenities are all listed in detail; no 

information was given about accessibility in the hotel other than the statements “Accessible 

rooms/facilities” and “Handicapped rooms/facilities”. Agoda.com did not comply with the 

Regulation because it did not identify accessible rooms, did not allow for booking of accessible 

rooms and provided insufficient information as to whether the rooms or features at the hotel are 

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accessible; hotel amenities, room types and amenities are all listed in detail; no information was 

given about accessibility in the hotel other than the statement “Facilities for disabled guests”. 

Trip.com did not comply with the Regulation because it did not identify accessible rooms, did not 

allow for booking of accessible rooms and provided insufficient information as to whether the 

rooms or features at the hotel are accessible; hotel amenities, room types and amenities are all 

listed in detail; no information was given about accessibility in the hotel other than the statement 

“Accessible rooms”.

ANSWER: Defendant lacks sufficient information to admit or deny the allegations in the 

foregoing paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict 

proof thereof.

11. In the near future, Plaintiff intends to revisit Defendant’s online reservations system 

in order to test it for compliance with 28 C.F.R. Section 36.302(e). In this respect, Plaintiff 

maintains a system to ensure that she revisits the online reservations system of every hotel she 

sues. By this system, Plaintiff maintains a list of all hotels she has sued with several columns 

following each. She continually updates this list by, among other things, entering the dates she did 

visit and plans to again visit the hotel’s online reservations system. With respect to each hotel, she 

visits the online reservations system multiple times prior to the complaint being filed, then visits 

again shortly after the complaint is filed. Once a judgment is obtained or settlement agreement 

reached, she records the date by which the hotel’s online reservations system must be compliant 

and revisits when that date arrives.

ANSWER: Defendant lacks sufficient information to admit or deny the allegations in the 

foregoing paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict 

proof thereof.

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12. Plaintiff is continuously aware that the subject websites remain non-compliant and 

that it would be a futile gesture to revisit the websites as long as those violations exist unless she 

is willing to suffer additional discrimination.

ANSWER: Defendant lacks sufficient information to admit or deny the allegations in the 

foregoing paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict 

proof thereof.

13. The violations present at Defendant’s websites infringe Plaintiff’s right to travel 

free of discrimination and deprive her of the information required to make meaningful choices for 

travel. Plaintiff has suffered, and continues to suffer, frustration and humiliation as the result of 

the discriminatory conditions present at Defendant’s website. By continuing to operate the 

websites with discriminatory conditions, Defendant contributes to Plaintiff’s sense of isolation and 

segregation and deprives Plaintiff the full and equal enjoyment of the goods, services, facilities, 

privileges and/or accommodations available to the general public. By encountering the

discriminatory conditions at Defendant’s website, and knowing that it would be a futile gesture to 

return to the websites unless she is willing to endure additional discrimination, Plaintiff is deprived 

of the same advantages, privileges, goods, services and benefits readily available to the general 

public. By maintaining a websites with violations, Defendant deprives Plaintiff the equality of 

opportunity offered to the general public. Defendant’s online reservations system serves as a 

gateway to its hotel. Because this online reservations system discriminates against Plaintiff, it is 

thereby more difficult to book a room at the hotel or make an informed decision as to whether the 

facilities at the hotel are accessible.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent a response is 

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required, Defendant lacks sufficient information to admit or deny the allegations in the foregoing 

paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict proof thereof.

14. Plaintiff has suffered and will continue to suffer direct and indirect injury as a result 

of the Defendant’s discrimination until the Defendant is compelled to modify its websites to 

comply with the requirements of the ADA and to continually monitor and ensure that the subject 

websites remains in compliance.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent a response is 

required, Defendant lacks sufficient information to admit or deny the allegations in the foregoing 

paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict proof thereof.

15. Plaintiff has a realistic, credible, existing and continuing threat of discrimination 

from the Defendant’s non-compliance with the ADA with respect to these websites. Plaintiff has 

reasonable grounds to believe that she will continue to be subjected to discrimination in violation 

of the ADA by the Defendant.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent a response is 

required, Defendant lacks sufficient information to admit or deny the allegations in the foregoing 

paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict proof thereof.

16. The Defendant has discriminated against the Plaintiff by denying her access to, and 

full and equal enjoyment of, the goods, services, facilities, privileges, advantages and/or 

accommodations of the subject website.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent a response is 

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required, Defendant lacks sufficient information to admit or deny the allegations in the foregoing 

paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict proof thereof.

17. The Plaintiff and all others similarly situated will continue to suffer such 

discrimination, injury and damage without the immediate relief provided by the ADA as requested 

herein.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent a response is 

required, Defendant lacks sufficient information to admit or deny the allegations in the foregoing 

paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict proof thereof.

18. Defendant has discriminated against the Plaintiff by denying her access to full and 

equal enjoyment of the goods, services, facilities, privileges, advantages and/or accommodations 

of its place of public accommodation or commercial facility in violation of 42 U.S.C. § 12181 et 

seq. and 28 CFR 36.302(e). Furthermore, the Defendant continues to discriminate against the 

Plaintiff, and all those similarly situated by failing to make reasonable modifications in policies, 

practices or procedures, when such modifications are necessary to afford all offered goods, 

services, facilities, privileges, advantages or accommodations to individuals with disabilities; and 

by failing to take such efforts that may be necessary to ensure that no individual with a disability 

is excluded, denied services, segregated or otherwise treated differently than other individua ls 

because of the absence of auxiliary aids and services.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent a response is 

required, Defendant lacks sufficient information to admit or deny the allegations in the foregoing 

paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict proof thereof.

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19. Plaintiff is without adequate remedy at law and is suffering irreparable harm. 

Plaintiff has retained the undersigned counsel and is entitled to recover attorney’s fees, costs and 

litigation expenses from the Defendant pursuant to 42 U.S.C. § 12205 and 28 CFR 36.505.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent a response is 

required, Defendant lacks sufficient information to admit or deny the allegations in the foregoing 

paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict proof thereof.

20. Pursuant to 42 U.S.C. § 12188, this Court is provided with authority to grant 

Plaintiff Injunctive Relief, including an order to require the Defendant to alter the subject websites 

to make them readily accessible and useable to the Plaintiff and all other persons with disabilities 

as defined by the ADA and 28 C.F.R. Section 36.302(e); or by closing the websites until such time 

as the Defendant cures its violations of the ADA.

ANSWER: Defendant neither admits nor denies the allegations as alleged in the foregoing 

paragraph of Plaintiff’s Complaint as they concern legal conclusions. To the extent a response is 

required, Defendant lacks sufficient information to admit or deny the allegations in the foregoing 

paragraph of Plaintiff’s Complaint, and therefore denies the same and demands strict proof thereof.

AFFIRMATIVE DEFENSES

NOW COMES the Defendant, 233 E. ONTARIO HOTEL PROPCO LLC, and asserts the 

following Affirmative Defenses without assuming any burden of proof and persuasion that would 

otherwise remain with the Plaintiff to the Plaintiff’s Complaint and states as follows:

First Separate and Affirmative Defense

(Failure to State a Claim)

Plaintiff’s Complaint and each and every claim contained therein fails to state facts 

sufficient to state a claim upon which relief may be granted. 

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Second Separate and Affirmative Defense

(Lack of Standing)

Plaintiff’s claims are barred, in whole or in part, because Plaintiff has not suffered harm 

and, therefore, Plaintiff lacks standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).

Third Separate and Affirmative Defense

(Statute of Limitations)

Defendant is informed and believes and thereon alleges that Plaintiff’s claims as 

contained in the Complaint are barred by the applicable statutes of limitations.

Fourth Separate and Affirmative Defense

(Waiver)

Defendant is informed and believes and thereon alleges that Plaintiff has waived any and 

all claims that Plaintiff may have had or has against Defendant arising from the transactions 

and/or occurrences contained in the Complaint. 

Fifth Separate and Affirmative Defense

(Estoppel)

Defendant is informed and believes and thereon alleges that Plaintiff is estopped by 

Plaintiff’s own conduct from asserting any and all claims Plaintiff may have had or has against 

Defendant arising from the transactions and/or occurrences contained in the Complaint.

Sixth Separate and Affirmative Defense

(Doctrine of Laches)

Defendant is informed and believes and thereon alleges that Plaintiff’s Complaint is 

barred in its entirety, by the Doctrine of Laches.

Seventh Separate and Affirmative Defense

(Unclean Hands)

Defendant is informed and believes and thereon alleges that Plaintiff’s Complaint is 

barred, in its entirety, by the doctrine of unclean hands.

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Eighth Separate and Affirmative Defense

(Alternative Methods)

Defendant is informed and believes and thereon alleges based upon information and 

belief that it and other third parties provide persons with disabilities alternatives to barrier 

removal by providing access by alternative methods.

Nineth Separate and Affirmative Defense

(No Standing for Barriers Not Affecting Plaintiff’s Disability)

Plaintiff lacks standing to seek relief for barriers not affecting her disability.

Tenth Separate and Affirmative Defense

(Failure to Plead with Certainty and Particularity)

The allegations of the Complaint, and each purported cause of action contained therein, 

are not pled with sufficient particularity and are uncertain, vague, ambiguous and unintelligible. 

Eleventh Separate and Affirmative Defense

(Undue Burden)

Some or all of the barrier removal proposed by Plaintiff would result in an undue burden 

for Defendant.

Twelfth Separate and Affirmative Defense

(Failure to Mitigate Damages) 

Defendant alleges upon information and belief that Plaintiff has failed to act reasonably 

to mitigate any damages that Plaintiff has alleged in this action, if any at all.

Thirteenth Separate and Affirmative Defense

(Reasonable Portions of Facility Accessible)

Defendant is informed and believes and thereon alleges that the facility does not violate 

any codes, laws, regulations, or provisions alleged in Plaintiff’s Complaint by reason that a 

reasonable portion of the facility and accommodations normally sought and used by the public 

are accessible to and useable by Plaintiff and other persons with disabilities.

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Fourteenth Separate and Affirmative Defense

(Failure to Request Modification to Policies, Practices, or Procedures) 

Defendant alleges that Plaintiff is unable to obtain injunctive relief regarding changes to 

Defendant’s policies, practices, or procedures because Plaintiff failed to plead that Plaintiff 

requested of Defendant any specific and reasonable modification to a policy, practice, or 

procedure as required by relevant law to obtain such relief and/or that Defendant declined that 

request.

Reservation of Rights for Additional Affirmative Defenses

Defendant reserves the right to affirmatively assert additional affirmative defenses in the 

event discovery indicates it would be appropriate. 

Date: August 31, 2020

By: /s/ Mary A. Smigielski

Attorneys for Defendant

Mary A. Smigielski

Kenneth D. Walsh

LEWIS BRISBOIS BISGAARD & SMITH LLP

550 West Adams Street, Suite 300

Chicago, Illinois 60661

312.463.3377

Mary.Smigielski@lewisbrisbois.com

Kenneth.Walsh@lewisbrisbois.com

Stephen E. Abraham, California State Bar # 172054

LEWIS BRISBOIS BISGAARD & SMITH LLP

650 Town Center Drive, Suite 1400

Costa Mesa, CA 92626

Telephone: 714.668.5562

Facsimile: 714.850.1030

E-Mail: Stephen.Abraham@lewisbrisbois.com

Pro Hac Application to be Submitted

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 31, 2020 I electronically filed the foregoing 

Defendant’s Answer and Affirmative Defenses to Plaintiff’s Complaint with the Clerk of the 

above-captioned Court by using the CM/ECF system, which will provide notice and a copy of 

same to all parties of record.

 

By: /s/ Kenneth Walsh 

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