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.

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Case No. 1:20-cv-04594

PLAINTIFF’S RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY

Plaintiff, by and through undersigned counsel, hereby responds to the Notice of

Supplemental Authority filed by Defendant regarding Laufer v. Ft. Meade Hosp., LLC, 2020 

U.S. Dist. LEXIS 210299 (D.Md. 11/10/20). There, the court denied plaintiff’s motion for

default judgment and improperly held that plaintiff lacks standing for reviewing a discriminatory

online reservations system unless she intends to book a room. For the reasons set forth below,

the court’s decision in Ft. Meade is flawed.

A. The Court Did Not Consider Applicable Law

First, the court merely denied a motion for default judgment and did not issue any final

ruling on the matter of standing. Therefore, the court’s decision is not a final order and cannot be

appealed. Rather, the court denied the motion and dismissed the complaint without prejudice “to

give Laufer the opportunity to cure the defects.”

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Second, the court ruled only on the plaintiff’s motion for default judgment. The court

never put the plaintiff on notice that it was considering dismissal based on standing and,

therefore, no briefing was ever submitted explaining the law or authorities addressing this issue.

The court therefore issued its opinion without the benefit of any consideration of the applicable

Supreme Court cases, such as 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 Ft. Meade 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”. However, the Ft. Meade court overlooked the

disclaimers 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”, and expressly stated that it was not considering “ the rights generally of

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.

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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 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 [(7

th

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

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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 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 by Laufer fell within

the category recognized by the Carello Court 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 Ft. Meade Court’s reliance on Griffin was erroneous.

C. The Ft. Meade Court Erroneously Relied On Cases Such As Mann And

Hernandez

The Ft. Meade 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. 

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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). 

Like the Ft. Meade Court, none of these decisions consider 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 inapplicable. 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

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intention of booking a room. It never held that such an intent was required. Noting that the

plaintiff intended to 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

In sum, the Ft. Meade court issued a non-appealable ruling without the benefit of any

briefing on the subject, based on a complete misreading of Griffin and based on three other cases

which themselves, like Ft. Meade, failed to properly apply or consider the weight of authorities

that support standing.

Respectfully submitted, 

Attorney for Plaintiff:

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

Kimberly A. Corkill, Of Counsel

Thomas B. Bacon, P.A.

7 N. Coyle Street

Pensacola, FL 32502

ph. 850-375-3475

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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.

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