3rd Party ADA Compliance Lawsuits – A New Twist on an Old Theme

It seems lawsuits over ADA compliance have entered a new arena for independent hotels, small inns, and bed and breakfasts.

The latest situation involves a group of 10 properties in New Mexico who had a lawsuit filed against them in mid-November 2021, by a single plaintiff, due to the fact that their listings on various third-party sites (OTAs) are not specific enough to comply with ADA requirements.

• The complaint cites the ADA requirement 28 C.F.R. Section 36.302 (e) (1) Reservations made by places of lodging.
• The fact that these 3rd party sites (OTAs) do not allow lodging providers to document the detail necessary to comply with the law did not matter.
• The plaintiff opted to file a lawsuit against all the properties, rather than take the complaint directly to the third-party systems (OTAs) in question.

At least one Acorn client, who had already completed the information available in their various 3rd party OTA systems, has shared with us that they were part of this lawsuit. They also have indicated they have settled, with no wrongdoing, for several thousand dollars, plus legal fees, because it was the best option financially. Choosing to fight the lawsuit, simply to prove they had provided all the information they were permitted to provide inside the confines of the third-party (OTA) system would have cost tens of thousands of dollars more than opting to settle.

It’s said you can’t fight city hall, and it seems the same goes for the third-party OTA giants. Thus far, lawsuits are not being filed against the major hotel chains that list on OTAs. Rather, it appears that they are targeting independent properties that typically don’t have a legal team on hand.

And like all the other ADA lawsuits we have followed over the past 4 years, we anticipate we will see these lawsuits continue in different parts of the country.

So, what’s an Innkeeper to do?

Quite simply, the only way to fully avoid a lawsuit is to remove your listing from third-party sites. But that can present a variety of other issues.

• • Many innkeepers may be reluctant to do this as these sites fill slow times and offer a guest who may not easily find your web site a way to find your property.
  • If you decide to cancel instead of just setting your rooms to “sold out”, once your contract is cancelled you may never be able to re-instate your listing in the future.
  • If you are in the process of selling your property, cancelling your third-party service may have a negative impact on the buyers.

Note: Your third-party OTA listing may still be available even if you have indicated all your rooms are sold out, though a guest might choose to look for your website and discover your rooms are available to book direct.

If you still want to list with an OTA, despite the risk of an ADA lawsuit, you are going to want to make sure you control your content as much as you possibly can.

Next Steps.

Acorn has reached out to ALP's Advocacy Committee and Kris Ullmer, ALP CEO, and she in turn has contacted the attorney who worked through the last Expedia lawsuit, which was ultimately a win for our industry.

They have advised:

Step 1: Write to your third-party (OTA) representative, requesting they update their system to allow accommodation providers such as yourself to include the necessary ADA requirements, specifically as defined in the ADA requirement 28 C.F.R. Section 36.302 (e) (1).

Step 2: Continue to follow-up until you get a response.

Step 3: Keep all your correspondence for future reference should we find that our industry (ALP / AH&LA, etc.) needs to address this situation in a similar fashion to the previous Expedia class-action lawsuit.

You will need to have the ability to keep your ADA accessible room available both on your booking engine, and should you choose, in the third-party OTA system until it is the last room available in its type for the room nights selected. Each system must communicate to the guest that it’s an ADA room when they click on it to book it.

If you are not required to provide an ADA accessible room, the third-party OTA needs to provide a way for you to communicate that information to your potential guests.

If you are an Acorn Advantage Plan Client Level 1 or 2 please watch for an Advantage Plan Blog post showing you what you are currently permitted to communicate via the settings in the various third-party OTAs, so you can update your listing correctly.

Keep in mind that our client in New Mexico had their listing updated correctly, but still received a summons from the plaintiff.

If you are a Level 3, 4 or 5 Advantage Plan Client and want to address this, just ask your project manager to review your OTA listings in your next monthly meeting.