Hotels.com

I. INTRODUCTION

1. This class action complaint seeks a declaration that Defendant Hotels.com, L.P., which leases rooms to customers, is violating the ADA, by neither offering nor guaranteeing its disabled customers accessible rooms at the same discounts that are available to the non-disabled population. This class action complaint further seeks to enjoin Hotels.com from violating the ADA.

2. Hotels.com is a computer travel service that is required to comply with Title III of the ADA which prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a); See 28 C.F.R. § 36.201(a).

3. Under the ADA, Hotels.com must offer the same travel services to physically disabled customers as it offers to non-physically disabled customers. In violation of the ADA, Hotels.com fails to give physically disabled customers the full benefits of the highly discounted travel arrangements that Hotels.com provides to the non-physically disabled population. This case is brought to ensure that the rights of individuals with physical disabilities have full and equal access to internet travel services, are recognized by Hotels.com, and to force Hotels.com to stop violating the ADA and discriminating against the physically disabled population.

4. Hotels.com will not accept a reservation from a physically disabled person and guarantee an accessible room, although the individual hotels listed on Hotels.com may offer physically disabled access as an "amenity." Physically disabled persons are categorically unable to enjoy the full benefits of Hotels.com because they are disabled. They cannot make reservations or secure a hotel's commitment for lodging because they require accessible rooms and such rooms are not offered by Hotels.com.

5. More than 22 million adults with disabilities (71% of persons with disabilities) traveled between 2000 and 2002, according to a survey prepared by the Harris Group for the Open Doors Organization (Research Among Adults with Disabilities: Travel and Hospitality, January 2002). Overall, disabled adults take about 2 trips every 2 years (approximately 63 million total trips). The majority of these trips are for pleasure and last 5 days. A subgroup of the disabled community (20% of adults with disabilities) travel at least 6 times every 2 years. While traveling, the average adult with a disability spends $430, which translates into travel expenditures by the disabled community of $27 billion over 2 years. The internet is a key resource for adults with disabilities (46% of those adults with disabilities who travel indicate that they consult the internet, while 33% of those traveling indicate that they book their trips most frequently online).

6. In the case of Plaintiff Mundy, after he was unable to request an accessible room online at Hotels.com, he personally contacted by telephone a Hotels.com representative. Although he was assured that he would receive an accessible lodging, when he went to the hotel, he discovered that an accessible room was not available. He then went to a second hotel, which was booked for him by Hotels.com, and again found himself in a completely inaccessible room. As a result, he was left without accessible lodging.

II. RELIEF SOUGHT

7. Plaintiff, and others similarly situated, have in the past tried, and will in the future try, to secure accessible lodging through http://www.Hotels.com. Plaintiff, on behalf of himself and others similarly situated, seeks the following relief:
a) A declaration that Hotels.com is violating the ADA; and
b) An injunction forcing Hotels.com to comply with the requirements of the ADA by offering accessible rooms. Money damages alone are inadequate, and Plaintiffs have been suffering and will continue to suffer irreparable injury.

III. JURISDICTION AND VENUE

8. This court has jurisdiction over this case under 28 U.S.C. §§ 1331, 1337, and 1343 and 42 U.S.C. 12188. The court may grant declaratory and other relief pursuant to 28 U.S.C. §§ 2201 and 2202. Venue is appropriate within this district pursuant to 28 U.S.C. § 1391(b).

IV. FACTS APPLICABLE TO ALL COUNTS

A. PARTIES
9. Plaintiff Thomas Mundy is a resident of the State of Hawai'i. Mr. Mundy is an individual with a physical disability who uses a wheelchair for mobility and is a person with a physical disability as defined under applicable law. Mr. Mundy is a paraplegic with a physical impairment that substantially limits one or more of his major life activities and is protected by the ADA; 42 U.S.C. § 12102(2); 28 C.F.R. § 36-104. Mr. Mundy is considered an individual with a disability because his essential life activities, such as caring for himself, performing manual tasks, walking, and working are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people, 28 C.F.R. Part 36, App. B § 36.104. Mr. Mundy uses a wheelchair for mobility and, as such, his computer provides essential services directly to his home.

10. Mr. Mundy used Hotels.com and booked a vacation to Hawai'i from January 31, 2004 through February 8, 2004. Upon using their web site, Mr. Mundy realized he could not confirm that he would receive an accessible hotel room.

11. Because he could not obtain a guaranteed accessible room through the Hotels.com website, Mr. Mundy telephoned Hotels.com's toll-free number and spoke with a Hotels.com representative to make his reservation. He then made two reservations for separate hotel rooms and was told that he was guaranteed an accessible room. Mr. Mundy then booked his reservation with Hotels.com for both hotels.

12. Upon arrival at the first hotel (Ohana Maile Sky Court) on January 31, 2004 at approximately 8:00 p.m., Mr. Mundy was told that there was no accessible room available. The hotel then offered him a non-accessible room where it was very difficult to get around and the bathroom was too small for a wheelchair to maneuver. The next day, Mr. Mundy telephoned Hotels.com and explained what happened to the representative. The Hotels.com representative said there was nothing that Hotels.com could do to get him the accessible room that he needed and was promised. The Hotels.com representative said it was out of their hands and for him to address his concerns with the hotel.

13. Mr. Mundy then went to the second hotel that he booked with Hotels.com on February 2, 2004 (Aston Honolulu Prince). Upon his arrival he was told again that there was no accessible room available. Mr. Mundy then again telephoned Hotels.com and spoke to a Hotels.com representative. He was again told there was nothing that Hotels.com could do to get him the accessible room that he needed and was promised and to address his concerns with the hotel.

14. Defendant Hotels.com, L.P., is a Texas Limited Partnership with headquarters located at 10440 North Central Expressway, Suite 400, Dallas, Texas 75231.

15. Hotels.com does business in Hawai'i by daily sales of specialized travel arrangements to Hawai'i residents.

16. Hotels.com promotes itself as the internet's largest specialized booking service for discount accommodations worldwide: We offer substantial savings off regular hotel rates in some of the world's most popular and expensive cities. We also specialize in providing our customers the ability to book accommodations when cities are sold out. We offer our customers the opportunity to book discount accommodations in more than 12,500 premiere properties in over 400 major destinations in North America, the Caribbean, Europe and Asia, including New York, Boston, Washington D.C., Chicago, Los Angeles, San Francisco, Orlando/Disney World, Anaheim/Disneyland, New Orleans, Miami, San Diego, Las Vegas, Paris, London, Hong Kong, Rome, Milan, Frankfurt, Toronto and Vancouver.

Hotels.com is one of the fastest growing hotel booking sites on the Internet. Our Internet booking engine provides consumers the best medium to quickly and efficiently compare price, quality, location, amenities, and availability of hotel rooms and reservations are confirmed in just seconds. Through our affiliate program, we have partnered with thousands of travel-related Internet sites, which offer discount hotel rooms through Hotels.com's booking engine. You can book accommodations directly via the Internet at www.hotels.com or call Hotels.com toll free in the U.S. or Canada at 800-2-HOTELS (1-800-246-8357), in Europe at 00800-1066-1066 or elsewhere at 1-469-335- 5825 http://www.Hotels.com/content_aboutus.jsp.

B. ADA ALLEGATIONS
17. Hotels.com leases hotel rooms to the public and offers substantial discounts to its customers for hotel rooms.

18. Hotels.com is an entity renting, leasing, or otherwise providing real property, including, but not limited to, housing accommodations, for compensation.

19. Hotels.com customers may either 1) lease a hotel room by accessing the Hotels.com website, http://www.hotels.com or 2) contacting a Hotels.com Customer Care representative by telephone.

20. Hotels.com purchases blocks of rooms from hotels and rents them to members of the public at a higher rate. These blocks of rooms are purchased through a "Room Allotment Agreement" that Hotels.com enters into with participating hotels. It is through these allotment agreements that Hotels.com provides rooms to its customers.

21. The Hotels.com Room Allotment Agreement with participating hotels provides that payment is made from Hotels.com to the participating hotels after the guest has departed. ("Property shall invoice Hotels.com for all Consumed Rooms within 120 days of departure of the Hotels.com customer, which invoice shall be payable within 30 days of receipt by Hotels.com.")

22. The Hotels.com Room Allotment Agreement with participating hotels includes "Hotels.com Reservation Procedures."

23. The Hotels.com Reservation Procedures states "Guest purchases room from Hotels.com contracted allotment either via telephone or internet."

24. Through its website and its Customer Care representatives, Hotels.com leases places of public accommodation. Its customers: a) select a hotel room at a participating hotel and make the reservation with Hotels.com; b) pay Hotels.com for the room reservation; c) must contact Hotels.com if there is a change in the reservation; and d) must request a refund from Hotels.com if the reservation is cancelled.

25. Whether making a reservation by the Hotels.com website or by contacting a Customer Care Representative, there is no means by which a disabled person can request or secure an accessible accommodation.

26. Within the last twelve months, Plaintiff, and others similarly situated, have attempted to make a reservation online at Hotels.com and through Hotels.com Customer Care representatives to request an accessible room but were unable to do so.

27. Plaintiff was at all times ready and willing to and did offer to pay Hotels.com for the charges for accessible housing accommodations if so offered by Hotels.com.

28. Hotels.com's failure to offer accessible lodging accommodations through the internet to the representative Plaintiff and the Plaintiff Class was based solely on Plaintiffs' disability.

29. As a result of Hotels.com's refusal to offer accessible lodging/accommodations, Plaintiff, and others similarly situated, was deprived of staying in a desirable location and facility.

30. Hotels.com's failure to offer accessible housing accommodations through the internet to the Representative Plaintiff and the Plaintiff Class violates Title III of the ADA.

C. CLASS ALLEGATIONS
31. Plaintiff seeks certification of this case as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure.

32. The class consists of all individuals who use wheelchairs or electric scooters for mobility who, during the time period to be determined by the Court, were denied, or are currently being denied, on the basis of disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of Hotels.com.

33. The proposed class is believed to consist of tens of thousands of individuals who are dispersed across the United States.

34. Joinder of all such class members in this lawsuit is impracticable.

35. There are numerous questions of law and fact common to the class, including, but not limited to, the following:
a. Whether Hotels.com offers public accommodations under the ADA;
b. Whether Hotels.com denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages or accommodations to people who use wheelchairs or electric scooters in violation of the ADA; and
c. What measures are legally required to bring Hotels.com into full compliance with the ADA.

36. Plaintiff's claims are typical of the claims of the other Class Members.

37. Plaintiff and all Class Members use a wheelchair or electric scooter for mobility and claim that Hotels.com has violated the ADA by not providing Class Members services similar to all other persons.

38. Plaintiff will fairly and adequately represent all Class Members because Plaintiff has no interests that conflict with other members of the class.

39. Plaintiff has retained counsel experienced in class action and disability rights litigation.

40. This action may be maintained as a class action pursuant to Rule 23(b)(2) because the Defendant's violations of the ADA are applicable to all Class Members. Therefore, an injunction requiring compliance with the ADA is appropriate and the primary relief sought is injunctive relief.

FIRST CLAIM FOR RELIEF
(DECLARATORY RELIEF)

41. Plaintiffs re-allege and incorporate all previous allegations as if fully set forth herein.

42. Title III of the ADA provides that "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

43. Hotels.com has discriminated against Plaintiff and members of the proposed class on the basis of disability.

44. Hotels.com's discriminatory conduct includes, but is not limited to:
a. Discriminatory exclusion and/or denial of goods, services, facilities, privileges, advantages, accommodations, and/or opportunities;
b. Provision of goods, services, facilities, privileges, advantages, and/or accommodations that are not equal to those afforded to non-disabled individuals; and
c. Failing to make reasonable modifications in policies, practices, and/or procedures as necessary to afford the goods, services, facilities, privileges, advantages, and/or accommodations to individuals with disabilities.

45. As a result of the foregoing, Hotels.com discriminates against Plaintiff and members of the class and in the absence of the injunction requested in this case will continue in the future to discriminate against Plaintiff and members of the proposed class on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Hotels.com in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. and/or its implementing regulations.

46. Defendant's violations of the ADA have harmed and will continue to harm Plaintiff and members of the proposed class in the future.

47. Pursuant to the remedies, procedures, and rights set forth in 42 U.S.C. § 12188, Plaintiffs seek a declaration that Hotels.com, through its web site and through its Customer Care representatives, violates the provisions of the ADA by failing to offer accessible hotel rooms.

48. Because there are no factual disputes over Hotels.com's reservation procedures, declaratory relief may be determined as a matter of law.

49. Plaintiffs request that the court declare the Defendant, through its continuing action, to be in violation of Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. ("ADA") that prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" offered by a place of public accommodation, 42 U.S.C. §12182(a) et seq.; 28 C.F.R. § 36.201(a).

SECOND CLAIM FOR RELIEF
(INJUNCTIVE RELIEF)

50. Plaintiff re-alleges and incorporates all previous allegations as if fully set forth herein.

51. Plaintiffs request that the Defendant be enjoined from continuing to discriminate against the Class Members in violation of Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. ("ADA") which prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" offered by a place of public accommodation, 42 U.S.C. § 12182(a) et seq.; 28 C.F.R. § 36.201(a).

52. Pursuant to 42 USC 12188, the Court may enter an injunction to require the modification of a policy to comply with the requirements of the ADA and Plaintiff requests that the Court enter the following:
1) An order enjoining Defendant and its employees, agents, and any and all other persons acting on Defendant's behalf or under Defendant's control, from violating the ADA.
2) An order that Defendant institute and implement policies and practices that ensure that people with disabilities have nondiscriminatory and full and equal access to its services, consistent with federal law. WHEREFORE, Plaintiff, on behalf of himself and others similarly situated, respectfully requests:
1. That this Court assume jurisdiction over this case;
2. That this Court certify the class as requested;
3. That this Court certify Plaintiff as the representative of this class;
4. That this Court declare Defendant to be in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq.;
5. That this Court issue an injunction ordering Defendant to comply with the statutes set forth herein;
6. That this Court award Plaintiffs' reasonable attorneys' fees and costs pursuant to federal law; and
7. That this Court award such additional or alternative relief as may be just, proper, and equitable.

DATED: Honolulu, Hawai'i, August 10, 2005.
________________________
THOMAS R. GRANDE
STANLEY E. LEVIN
BRUCE F. SHERMAN
THOMAS F. FEENEY
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

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