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HospitalityLawyer.com® converges legal, safety, and security solutions for the hotel, food and beverage, private club, meeting, event, and corporate travel industries.

We are a worldwide network of attorneys that focus on hospitality, travel and tourism issues; a marketing conduit for suppliers of legal, safety and security solutions to reach hospitality developers and operators in need of those solutions; we mitigate critical incidents, injuries, litigation and liability within the hospitality industry, in the U.S. and abroad by facilitating the creation, collection, and dissemination of legal, safety and security information, products and services.

WEEKLY SPOTLIGHT

Attorney of the Week
Greg Duff

In addition to leading Foster Garvey’s national Hospitality, Travel & Tourism practice, Greg serves as the firm’s Co-Chair, a role in which he oversees management of day-to-day operations and strategic direction in partnership with Foster Garvey’s Executive Committee and professional managers. Greg’s practice is directed at the variety of operations-oriented matters faced by hospitality and travel industry members, including management agreements, sales and marketing, distribution and e-commerce, procurement and technology. His clients include owners and operators of hotels and resorts, time share companies, cruise lines, tour operators, restaurants and many of the vendors and suppliers that serve the travel and hospitality industries. Greg also serves as counsel to many of the hospitality industry’s local, state and national trade associations and trade groups, including the American Hotel & Lodging Association (AH&LA), Hospitality Sales and Marketing Association International (HSMAI) and Hospitality Financial and Technology Professionals (HFTP). Prior his career in private practice, Greg served in-house legal roles with the Westin Hotel Company/Starwood Hotels and Resorts, Homegrocer.com/Webvan Group and General Counsel and VP of Development at Columbia Hospitality.

Law Firm of the Week
Foley & Lardner

Foley & Lardner LLP looks beyond the law to focus on the constantly evolving demands facing our clients and their industries. With over 1,100 lawyers in 24 offices across the United States, Mexico, Europe, and Asia, Foley approaches client service by first understanding our clients’ priorities, objectives, and challenges. We work hard to understand our clients’ issues and forge long-term relationships with them to help achieve successful outcomes and solve their legal issues through practical business advice and cutting-edge legal insight. Our clients view us as trusted business advisors because we understand that great legal service is only valuable if it is relevant, practical and beneficial to their businesses. On April 1, 2018, Foley combined with Gardere Wynne Sewell LLP. The combined firm operates as “Foley Gardere” in Austin, Dallas, and Houston, and as “Foley Gardere Arena” in Mexico City through its subsidiary, Gardere, Arena y Asociados, S.C. All other offices operate as Foley & Lardner LLP.

Company of the Week
Deloitte

We believe that we’re only as good as the good we do. All the facts and figures that talk to our size and diversity and years of history, as notable and important as they may be, are secondary to the truest measure of Deloitte: The impact we make in the world. So, when people ask, “What’s different about Deloitte?” the answer resides in the many specific examples of where we have helped Deloitte member firm clients, our people, and sections of society to achieve remarkable goals, solve complex problems, or make meaningful progress. Deeper still, it’s in the beliefs, behaviors, and fundamental sense of purpose that underpin all that we do. Now celebrating 175 years of service, our network of member firms spans more than 150 countries and territories. Together, Deloitte’s more than 312,000 people worldwide make an impact that matters. For us, good isn’t good enough. We aim to be the best at all that we do—to help clients realize their ambitions, to make a positive difference in society, and to maximize the success of our people. This drive fuels the commitment and humanity that run deep through our every action.

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Our CONVERGE BLOG focuses on legal, safety, and security challenges for Hospitality, Travel, Travel Vendors and Corporate Travel Buyers as individuals and businesses.
Our blog features exclusive content from our contributors, who collectively represent the full spectrum of hospitality law, risk management and comprehensive duty of care solutions.

Court Stresses the Need for a Business to Provide an Accessibility Statement on its Website

In 2018 and 2019, there were approximately 5,000 federal lawsuits filed against hotels, restaurants, stores, and other places of public accommodation alleging that their websites violated Title III of the Americans with Disabilities Act (“ADA”). In all likelihood this number of lawsuits will increase in 2020 now that the U.S. Supreme Court has declined to review a Ninth Circuit Court of Appeals decision against Domino’s Pizza that essentially gave the green light for individuals with visual impairments to file suit against places of public accommodation if their websites are not fully compatible with screen reader software or otherwise not accessible. You can read more about the Supreme Court’s decision here.

Despite the Supreme Court’s recent denial of Domino’s petition for Writ of Certiorari, business owners and operators have at least some room for optimism. Indeed, as we explained in a prior blog post, there were two rulings from the Southern District of New York in the Spring of 2019 that ruled in favor of businesses when: (1) the business had already fixed the website which mooted the case; and (2) the plaintiff had failed to identify any concrete or particularized injuries she suffered, including which sections of the website she tried to access, the date on which she visited the website, and what goods or services she was unable to purchase. Thus, it is comforting to know that at least some defenses are available and can succeed on a motion to dismiss.

Then, in November 2019, another business prevailed on a website accessibility case, this time in a case arising out of the Eastern District of New York. See Castillo v. The John Gore Organization, Inc., Case No. 1:19-cv-00388-ARR-PK (E.D.N.Y. Nov. 14, 2019). This case arose out of a theater’s stated policy on its website regarding the bringing in of outside food. Specifically, the Charles Playhouse in Boston stated on its website that audience members were prohibited from bringing outside food into the theater. In response to this policy, an individual with diabetes brought suit under Title III of the ADA alleging that the theater’s policy of prohibiting her from bringing in outside food dissuaded her from buying a ticket see a show because she was required to have snacks with her at all times to stabilize sudden drops in her blood sugar.

Fortunately for the theater, they had several available defenses to these claims, most notably that (i) it had a prominently displayed accessibility policy on its website stating that the theater was accessible to all patrons, and that guests with accessibility questions could email or call the theater directly; and (ii) the plaintiff never called or e-mailed the theater to ask whether there were any exceptions to the policy that might allow her to bring in snacks, despite this policy. Thus, due to the accessibility statement’s prominent display on the homepage of the website, the court found that the plaintiff must have seen the accessibility policy PRIOR TO seeing the policy prohibiting an individual from bringing outside food into the theater, yet she failed to contact the theater per the website’s instructions and was thereafter denied permission to bring outside food. As a result, the plaintiff was unable to demonstrate actual knowledge of a barrier to access. The court also rejected the plaintiff’s broader allegation that she intended to visit the theater at some unspecified time in the future if the alleged barriers to entry were remedied and the purported discriminatory policies were fixed. Thus, because the plaintiff failed to prove the existence of an injury in fact, the court dismissed the complaint for lack of standing.

If you are an owner or operator of a place of public accommodation, hopefully your website already contains a prominently-displayed accessibility statement. If not, this case certainly illustrates the importance of one. Such an accessibility statement must include language that your property is accessible to all guests and must also provide a phone number, email address, and contact person with whom to an individual with a disability can speak for any and all questions and requests regarding potential accommodations that can be made. If your business does not yet contain an accessibility statement, please contact us and we can help craft one and get it up on your website as soon as possible to reduce your potential exposure from an ADA website claim.

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OTA & Travel Distribution Update: 2019 Year in Review

With 2020 now upon us and 2019 in the rearview mirror, I thought this would be a good time to take a look back at the stories (and the themes that the stories represent) we covered in 2019 that I believe will have the largest impact on hotel owners and operators in 2020 and beyond. I hope that you will enjoy.

Story Highlights From 2019:

Airbnb Seeks to Expand Its Corporate Business (January 26, 2019). In an effort to expand its Airbnb for Work user base, last week, Airbnb announced its acquisition of Danish company, Gaest.com. Gaest.com connects corporate users on six continents with spaces they can rent for meetings, team building or social events. While Airbnb has made great strides growing its Airbnb for Work program (nearly 700,000 companies are represented), adding third-party owned meeting and event space to the platform allows Airbnb to appeal to the 75 percent of corporate employees who do not travel on a regular basis.

Google Continues Steady Evolution (March 17, 2019). Those of you who are still not convinced that Google has its eyes on ultimately becoming an online booking platform may finally have to throw in the towel. With little to no fanfare, last week, Google launched a multi-functional destination site for hotels (Google Hotel Search) similar to existing Google Flights. Users of the new site will find metasearch type listings for requested locations, as well as a booking engine. Users seeking to book a room can choose to book through one of the many listed advertisers (OTAs) or, for many hotels, book right on the Google site. Filters available on the site allow users to target particular hotels, including a “deals” filter that identifies particularly low rates for a property (when compared to the property’s historical rates or rates for nearby competing properties). What these important changes at Google mean for hotels long term is still to be determined, but short term, the changes (i) may exacerbate current concerns regarding rogue wholesalers’ use of non-contract rates (e.g., the use of a “deals” filter will only bring more attention to uncharacteristically low rates) and (ii) may provide further assistance to hoteliers in their direct booking efforts (Google Hotel Search provides direct contact information for each identified property and provides hoteliers the opportunity to contribute to site indices featuring pricing, reviews and photos.) I’m sure this isn’t our last story to discuss this new Google product.

And Now, a Few Words About the Airbnb/Hotel Tonight Acquisition (March 17, 2019). By now, everyone has had a chance to read the dozens of articles written about the recently announced acquisition of Hotel Tonight by short-term booking platform, Airbnb. We include a story in this week’s Update detailing the price paid by Airbnb and how the price may be viewed by Hotel Tonight investors as Airbnb continues its march to becoming a public company. From my outsider’s perspective (solely my opinion), the acquisition only accelerates the homogenization that is already well underway among third-party booking channels. Soon, every online booking channel will feature the same mix of hotels, resorts, apartments, homes and other forms of accommodations (presumably, all with nearly identical pricing for comparable properties). When that ultimately happens, how will users choose where to book? Will they choose the first site or application they come to (anyone know Google)? Will they choose the channel with the best content? How about the channel with the best user experience (hello, Amazon)? Yes, Airbnb revolutionized the rental home market, but as it moves closer to becoming a traditional online booking channel (while at the same time the established channels grow their home rental inventory), Airbnb is beginning to lose many of the attributes that made it unique. From a hotelier’s perspective, the introduction of a new legitimate general online booking channel may finally introduce competition (and the benefits associated with competition) into the online booking world.

Amazon May Enter…Has Entered the Online Travel Industry (May 17, 2019). Change in the online travel industry is sometimes fast and furious, which is one of the primary reasons we launched our weekly OTA & Travel Distribution Updates nearly three years ago (yes, it has been that long). This past week, headlines regarding Amazon and its inevitable, and then actual, entrance into the online travel industry only proves our point. Early in the week, every online travel newsletter, blog and social media platform featured news of Morgan Stanley’s conclusion that Amazon ($600 million profit) could not logically remain out of online travel for much longer. If that wasn’t enough to get the attention of established industry participants (many of which have dismissed reports of Amazon’s inevitable entrance into travel), reports issued only days later of Amazon’s actual entrance into online travel surely did. On Thursday, industry expert and friend Robert Cole broke the news that Amazon (powered by Indian OTA, Cleartrip) had added domestic flights in India to its offerings. Travelers booking flights on Amazon receive cash back – the amount of which depends on whether the traveler is an Amazon Prime member. Expect many more stories to come in future Updates on this potentially landscape-altering addition to online travel.

Booking.com Amends Its Commission Policies (May 26, 2019). Although it was a relatively quiet week in the distribution world (at least in terms of the number of noteworthy stories), this first story garnered a lot of attention and deservedly so. Over the past few weeks, we had heard rumblings that Booking.com was notifying hotels of its plans to charge commissions on hotels’ resort fees and other guest charges (e.g., Wi-Fi charges) irrespective of whether Booking.com or the hotels collect the charges. These rumblings became a reality as the many usual outlets began featuring articles detailing Booking.com’s plans. According to these reports, U.S. hoteliers should see the additional commission charges beginning in June. Hoteliers need to review their contracts carefully to determine whether this unprecedented move is contractually permitted.

Vacasa Strikes Direct Connect Deal with Google (September 7, 2019). Last week, vacation rental management company Vacasa announced that it had reached agreement with Google to feature Vacasa’s 14,000 rental properties within Google’s hotel search results. Users seeking to book one of the rentals will be directed to Vacasa’s website to complete the booking. Unlike its established hotel business (which is highly monetized), Google’s vacation rental business is still in its infancy. For example, according to Vacasa, this newly announced integration is not monetized – Vacasa doesn’t yet have to compete monetarily for placement against other distribution channels that may be able to offer the same rental property. This will obviously change at some point. For now, Google is making clear its intention to become a major player in the vacation rental distribution business one step (and one supplier) at a time.

Landmark Deal Seeks to Resolve Rogue Intermediary Challenges (September 22, 2019). While much has already been written about (and in the weeks and months to come will continue to be written about) the recently announced wholesale distribution agreement between Marriott and Expedia, I could not send this week’s Update without at least some mention of the deal. For months, we have been featuring stories about the trials and tribulation of hoteliers seeking to reign in the rogue (and, in many instances, contractually unauthorized) practices of various wholesalers and other channels. These stories reflected our own clients’ frustrations working with many of the same channels. While I appreciate the immediate reaction of many who have asked why any hotelier would ever want to get this close to Expedia, I think the answer is simple. If an established (and stable) provider of superior technological solutions came to you and offered to take the daily challenges of managing (and perhaps, disciplining) many of your most difficult distribution channels off your plate, wouldn’t you be interested?

Sonder Seeks To Shake Up Traditional Hoteliers (October 13, 2019). With apartment-style accommodations now available in 26 cities in six countries, Sonder is readying itself for a possible IPO. The venture capital backed start-up leases traditional multi-family units, combines them with services similar to traditional hotels and then leases the units on a short-term, transient basis. According to Sonder CEO, Francis Davidson, Sonder doesn’t see itself as a competitor of Airbnb, but as a competitor to traditional hotels. How this model evolves in the face of growing state and local regulation of similar short-term rentals will be interesting to watch. So long as state and local regulators find themselves short of the resources necessary to implement and enforce these regulations, however, Sonder may do just fine.

Okerstrom and Pickerill Out (December 6, 2019). By all accounts we’ve seen, this past week’s resignations of Expedia Group CEO Mark Okerstrom and CFO Alan Pickerill came as a complete surprise. What led to the sudden departures? Expedia Group’s dismal third quarter financial results? Differing perspectives on Expedia Group’s go-forward strategies? I’m not sure we will ever know all of the reasons for the resignations. A copy of Expedia Group Chairman Barry Diller’s text to Expedia Group employees immediately following the resignations is included in our Geekwire report. For now, Expedia Group will be led by Diller and Expedia Group Board Vice Chairman, Peter Kern. What this all means for Expedia Group’s hotel supplier partners is unclear, though if asked to speculate (which is all anyone can do at this point), I’d offer that it might be rough going in the near term. While Cyril Ranque appears to still be president of Expedia Group’s lodging partner services, it isn’t clear whether Ranque or even his role within the Expedia Group organizational chart will remain. Even if Ranque retains his position long term, we have no idea what influence Diller’s presence might have on Ranque and his approach to suppliers. We know firsthand that Okerstrom often got personally involved in the negotiation of key lodging partner agreements and whether Diller is prepared to play a similar role (or even if not playing that role, how Diller might view Expedia Group’s supplier partners and the more moderate “cooperative” approach to key supplier partner relationships exhibited under Okerstrom’s leadership) is unknown. Buckle up everyone.

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Recent Trends in Hotel Violence, Insurance, and Legal Liabilities

“A hotel has a duty to adopt reasonable security measures to protect guests from foreseeable harm. Foreseeability can be established from past circumstances that are likely to be repeated.”

Judge Karen Morris, “Hotel security requires vigilant attention,” Hotel Management, 19 August 2019.

In this brief, Jeff M. Moore, PhD, will discuss recent trends in hotel violence from terrorism, physical and sexual assaults, and human trafficking, and the corresponding legal and financial and/or insurance impacts.

Terrorism
There were two spectacular terrorist attacks against hotels in the first half of 2019. One happened in Kenya, and the other in Sri Lanka. Both incorporated terrible casualties, plausible negligence, sizable insurance claims, and high financial damages.

The dusitD2 Nairobi Attack
On 15 January 2019, a squad of five gunmen from the al Shabaab terror group raided the 5-star dusitD2 hotel and associated business complex in Nairobi, Kenya. The attack killed 21 and wounded 28. The hotel stayed closed for 197 days and reopened after considerable reconstruction, remodeling, and rebranding.

dusitD2 Attack Legal Issues
While no legal actions have been reported in the press regarding this attack, there are plausible negligence issues here that can serve as warnings to other hotels. Specifically, while the exact time and place of this attack were not foreseeable (based on current reporting), the totality of circumstances under which it occurred – the target selection, the tactics applied, and the group that did it – were all certainly foreseeable. Three compelling data points demonstrate this point:

  1. Al Shabaab had been conducting operations in northern Kenya for years, a de facto low intensity conflict zone (LIC), and occasional attacks in urban areas, including Nairobi, had also occurred.
  2. Targeting for these attacks included a shopping mall, multiple hotels and hostels, a university (where a massacre happened), buses full of civilians, villages, and various government targets.
  3. Al Shabaab had active networks in Kenya, and this was known to the public by way of well publicized terror attacks over a span of more than five years.

Accordingly, as long as this type of violent activity was (and still is) ongoing – which constitutes totality of circumstances – no responsible business in Kenya, especially such a posh, high profile compound like the Dusit, should have had low or medium threat security. It was reasonable to apply higher grade security in this environment. The fact that the hotel and business complex increased security in the aftermath of this attack proves that security could have been better beforehand. This type of inattention opens hotels up to negligence lawsuits.

dusitD2 Attack Insurance and/or Financial Issues
Kenya-based GA Insurance was the Dusit hotel and business compound insurer. Damage estimates for both was 400 million Kenyan Shillings ($3,886,020.00 USD). Since the hotel sustained serious damages and underwent significant renovations as part of a brand facelift, it is reasonable to assume the hotel required at least $1.8 million of these funds.

As an aside, this payout, along with other property damage claims GA is covering elsewhere in the region, takes GA’s property insurance payouts to nearly Sh1 billion [$9,715,050.00 USD].1 This is a heavy burden for GA.

The dusitD2’s RevPAR losses for 197 days closure might reach $2,319,212.50. Total costs for the dusitD2, then, could conservatively be $4,119,212.50. Losses from brand damage and low RevPAR due to tourists avoiding Kenya over its terrorism risk could easily add another $2 million to this figure. Additionally, if the dusitD2 had spent a fraction of this loss amount on security before the attack, and if GA Insurance had used actuarial intelligence data on regional terrorism and hotel attacks to calibrate underwriting and policy writing, the financial damages sustained by both parties might have been much lower, or they might not have occurred at all.

The Sri Lanka Hotel Attacks (Plus 3 Churches)
On 21 April 2019, Easter Sunday, an ISIS terror cell in Sri Lanka exploded at least 11 bombs, mostly in Colombo, against law enforcement targets, three churches, and four hotels. Casualties for all attacks combined were 258 killed and 500 wounded. It was one of ISIS’ highest casualty-causing operations outside of its Syria-Iraq home base area.
The hotel targets were:

• The Cinnamon Grand Colombo
• The Shangri-La
• The Kingsbury Colombo-Sri Lanka
• The Tropical Inn Guest House

At each hotel, except for the Tropical Inn, ISIS suicide bombers targeted the Easter brunch buffet lines with the intention of causing mass human casualties. The restaurants at each property suffered incredible physical damage, and the Shangri-La was closed for 52 days. The small Tropical Inn Guest House was practically leveled, said press reports.

Sri Lanka Hotel Attack Legal Issues
As far as legal actions are concerned, as of September 2019, Sri Lanka’s Supreme Court was considering, “12 fundamental rights petitions filed against former Defense Secretary Hemasiri Fernando and IGP [Inspector General of Police] Pujith Jayasundera over their failure to prevent the terrorist attacks,” this according to the Colombo Page online newspaper.2 But was there possible negligence on behalf of the hotels as well? Yes. In particular, there were scores of local threat warnings and indicators in Sri Lanka’s press that clearly demonstrated profuse Islamist jihadist activities and direct threats by ISIS, all of which impacted the civilian population. These included:

  1. Long running Islamist jihadist attacks on moderate Muslims.
  2. Multiple audacious Islamist jihadist attacks on Buddhist communities and shrines.
  3. The discovery of an active ISIS training camp that housed 200 pounds of TATP high explosives.

These open source data points exhibited a distinct pattern of attack activity by Islamists jihadists that has occurred in scores of other terror-stricken nations around the world such as Kenya, Nigeria, Somalia, Thailand, France, the Philippines, and Egypt. Accordingly, a clear and present danger to the public was demonstrated, and, more specifically, a clear and present danger to hotels was demonstrated as well. This latter point is valid because Islamist jihadist have spent nearly two decades attacking hotels all over the world. Their hotel attack tally since September 11th, 2001, is well over 200. These have included high, medium, low, and even no casualty events. Hotels are part of the Islamist jihadist standard targeting regimen. It is therefore logical to presume that hotels in locales with ongoing Islamist jihadist activities would adhere to their duty of care, monitor threat issues, and take practical steps to provide a reasonably safe environment for their guests and staffs. The threat in Sri Lanka constituted totality of circumstances, and a compelling case of negligence can be made.

Sri Lanka Hotel Attack Insurance and/or Financial Issues
Best’s Review said of the Dusit attack, “Major insured losses from the bombings are estimated to come from hotels. Total insured losses caused by this event are anticipated to be less than 1 billion Sri Lankan rupees (US $5.8 million).”3 It is reasonable to figure that each of the three upscale hotels might have received just over $1 million for restaurant repairs and remodeling. The Shangri La might have received approximately $2 million because two suicide bombers detonated there, and damages were substantial.

The Shangri-La is insured by Sri Lanka-based Ceylinco General Insurance along with Chubb. They paid the Shangri-La $1 million within days of the attack so it could begin recovery as soon as possible.

Sri Lanka’s state insurance company, the National Insurance Trust Fund Board (NITF), provided coverage for the Cinnamon Grand and Kingsbury hotels. Specifically, this was SRCC&T coverage, or “strikes, riots, civil commotion, and terrorism.” Each hotel had a policy that was capped at Rs. 250 million (USD $3,579,125.00), where the deductible was 10%. NITF Chairman Manjula de Silva said, “This means the client has to bear the balance cost of Rs. 25 million once the 10% is deducted.” De Silva did not think damages at these two hotels would be more than Rs. 500 million (US $7,158,250.00), meaning that each property might have sustained damages reaching the capped amount.4

Aside from the high costs of physical damages, because the Shangri La hotel was closed for just over seven weeks for repairs, its RevPAR losses were not paltry. With 541 rooms at approximately $170 a night, RevPAR losses might total $4,690,470. Food and beverage losses would add to this figure. Looking forward, RevPAR losses for all three hotels will most likely rise $ millions more as Sri Lanka’s tourist arrivals as of summer 2019 were down as much as 70%, and overall tourist losses were estimated to be over $1 billion.5
As with the dusitD2 and GA Insurance, if these upscale Sri Lankan hotels and their insurers had processed more advanced risk data on threat warnings and indicators, they might have blunted or prevented these attacks, and the corresponding negative human and financial fallout could have been less, or maybe even non-existent.

Hotel Physical and Sexual Assaults
Physical and sexual assaults at hotels around the world are not uncommon. Aside from the heinous nature of these crimes, they can trigger damaging lawsuits. Nowhere has this been more recently apparent than in the Caribbean.

The State Department’s Overseas Security Advisory Council (OSAC) revealed disturbing trends regarding rapes and sexual assaults in late 2018 via its Jamaica 2018 Crime and Safety Report.6 It said 12 US citizens visiting Jamaica were raped or sexually assaulted in 2017 alone. Half of these were done by hotel/resort employees. The Chicago Tribune cited other State Department Statistics that said from 2011-17, 78 US citizens were raped in Jamaica. Statistically, that is nearly one a month for a six-year timeframe, or 13 a year.7 This is an astounding and compelling figure.

In one recent case from September 2018, two women were raped at gunpoint by an employee of the Hotel Riu Reggae in Montego. One of the victims, however, managed to secure the rapist’s gun and open fire, striking him in the arm. He fled, but the police tracked him down and arrested him shortly thereafter. It was then discovered he had a criminal record and was wanted by the police for sexual assault. The hotel claimed no culpability and said it followed thorough employee vetting and background check processes. Clearly, however, their process failed.8 As an aside, the Riu also owned the Imperial Marhaba hotel in Sousse, Tunisia, which was attacked by an ISIS gunman who killed 58 and wounded 59 in June 2015. This attack also occurred in a demonstrated violent environment.

In another case from January 2019, a Delaware woman staying at the Majestic Elegance Punta Cana resort in the Dominican Republic claims she was attacked from behind by a man wearing a Majestic Elegance uniform, taken to a secluded room or closet in the resort, and severely beaten and choked on and off for a prolonged period of time. She said she intermittently lost consciousness and was not sure if she was sexually assaulted or not. A rape examination was performed by Dominican Republic medical personnel, but it was supposedly two days later, and it was reportedly cursory in nature. The victim complained to the resort and police, but their responses were perceived as standoffish or lackadaisical. The resort said it attempted but failed at an out of court settlement. The resort’s insurance company (yet named) said since the victim was unable to identify her attacker as an employee of the property, the Majestic Elegance bore no responsibility to the victim.9

Thereafter, the victim went on offense, taking her story to the press and social media. She then sued the hotel for $3 million. Pictures of the victim from a hospital bed showed the woman with extreme bruising on her face, gouges in her cheek and forehead, ligature marks around her neck, mouth/dental damage, and caked, dried blood around her mouth and nose.

The Majestic Elegance told the press the woman’s story was suspect, indicating the attack might have been staged. No CCTV coverage of the incident was made available. Reporting has said the resort’s CCTV was inoperable at the time of the attack, and/or there was no CCTV coverage of the location of the assault. All of this happened against a backdrop of over 30 deaths of tourists in the Dominican Republic in a 12-month timeframe.10 US law enforcement has considered scores of these deaths as suspicious.

Hotel Physical and Sexual Assaults Legal Issues
Lawsuits over such attacks in the Caribbean are building, though not all have been made public. “There has been considerable growth in the number of lawsuits that have been filed against Jamaican-based hospitality industry resorts in the United States Federal Court,” said Jamaican-American attorney-at-law Michel Morgan at a recent lawsuit seminar in Jamaica. Morgan said there were advantages to US citizens filing suits against Caribbean resorts from US courts as opposed to Caribbean countries. These include high plaintiffs’ awards, contingency-fee agreements, and faster case conclusion times.11

In contrast, a Canadian-based lawyer said she advised Canadian rape and sexual assault clients to seek local, Caribbean legal help because of jurisdiction issues. This can indeed be a sticking point, but if the hotel or resort in question has assets in another country such as the US or the UK, then the case might be heard in the country where those assets are located. This is precisely what happened in the December 2013 Will Pike lawsuit against the Tata Group – owners of Mumbai’s Taj Mahal hotel. Pike was a guest at the Taj Mahal in 2008 when terrorists from the Pakistan-based, Lashkar-e-Taiba terror group attacked it, along with several other targets in the city, including the Oberoi and Trident hotels. Pike’s lawyers won the right to sue the Tata Group in the UK because Tata had considerable financial holdings in London. This jurisdiction ruling caused the Tata Group to quickly settle the Pike case out of court for an undisclosed sum.12 The same strategy can be applied in other cases, such as the many sexual assaults in the Caribbean.

Additionally, because of the high sexual assault and rape count at hotels and resorts in the Caribbean, and because of the unusually high and mysterious death count, there is a negligence case to be made in situations such as these regarding totality of circumstances. It is reasonable to expect the unusually high rate of physical violence at Caribbean resorts to cause resorts there to, firstly, recognize the problem, and, secondly, mitigate the problem in order to protect their guests.

Hotel Physical and Sexual Assault Insurance and Financial Issues
Financial losses from sexual assault cases can be high. Aside from settlements and awards that can easily rage from $3-6 million per injured party, business losses can mount. For example, the damning media exposure of the alleged beating at the Majestic Elegance compounded by the multiple mysterious deaths in the Dominican Republic caused such a stir that this resort had to shut down in August 2019 because of a lack of guests and revenues. It aims to reopen on 7 November. The closure will cost the resort approximately $8,525,160 in RevPAR losses. This does not include brand damage that might carry over after 7 November, or brand damage suffered by the Majestic corporation’s other properties in the Dominican Republic or other, regional locales.13

As a final note of interest, in July 2019, the US State Department removed its Jamaica report from the Internet.14

Hotel Human Trafficking
Like physical and sexual assaults at hotels, human sex trafficking happens all over the world – including in the US – and much of it happens in hotels. While Tu Rinsche, Marriott’s Director of Social Impact and Global Responsibility, rightly points out that plentiful and accurate data on trafficking is lacking, the International Labor Organization says approximately 4.8 million people suffer from forced sexual slavery at any given time, globally. Adding to this, Prince William County (Virginia) Police Detective Robyn Hyatt told the press, “One trafficker with three victims [and a] customer every 15 minutes can make $2.19 million in one year.” This makes sex trafficking more profitable than drug trafficking, says Detective Hyatt, and it draws the participation of local, regional, and international criminal networks, including MS-13, among others.15

Examples are many. In May 2019 in Washington state, a man was charged with sex trafficking a female to as many as 20 men a day at the Motel 6 Seattle Sea-Tac Airport South, which is directly across from Sea-Tac’s city hall. Additionally, this particular hotel had a reputation for being a hotbed of trouble. Since 1 January 2016, sheriff’s deputies had been called to the property just under 2,000 times to respond to 9-11 calls and for “area checks” regarding suspicious activities. Statistically, this is about four times a day for a three-year timeframe. Eight of those calls were for prostitution. The press reported that the hotel did have security, and it also kept a list of people not to rent to, but neither of these measures was enough to mitigate the criminal issues happening there, including human trafficking.16

In another recent case, four women said they were forced into sexual slavery by a gang that operated out of four hotels in Georgia and one in Louisiana from 2010-2016. The properties identified in the press were:

  • Red Roof Inn, Smyrna, Georgia
  • suburban Extended Stay (now a Hometown Studios), Chamblee, Georgia
  • La Quinta Inn, Alpharetta, Georgia
  • Extended Stay America, Atlanta, Georgia
  • Extended Stay America, Baton Rouge, Louisiana

Two women were reportedly underage at the time of the crimes. On occasion, the women would service 10-20 men a day. The women said the trafficking gang put hotel staffs on their payroll to serve as lookouts and to help mask these illegal activities. One trafficking victim, in an apparent effort to escape her plight, told a hotel employee she was being trafficked, and the employee then told the gang, who then beat the victim to enforce the secrecy of their trafficking operation. In military and intelligence terms, the activities by these hotel staffers is known as “operational security” (OPSEC), and it requires training in communications, how to spot law enforcement (or anyone hostile to an ongoing operation), and other assorted techniques akin to spy tradecraft. As evidenced by the woman who was beaten, OPSEC also sometimes requires ruthlessness. The hotel employees that were recruited by this trafficking gang excelled at operational security. They managed to help this enterprise elude law enforcement for six years. They were an integrated part of this criminal enterprise.

Despite the absence of copious data on trafficking, law enforcement and the hospitality industry use multiple case studies to design trafficking mitigation strategies. Marriott, Hyatt, and Hilton have made anti-trafficking training for hotel staff mandatory.17 Additionally, several major hotel chains and organizations have engaged in anti-trafficking measures in earnest since 2017. The American Hotel and Lodging Association, via its “No Room for Trafficking” outreach program, and non-profits such as the Safe House Project, help spread awareness and provide training tips on countering trafficking.18

But it has not been a subject the hospitality sector has readily addressed. Marriott’s Tu Rinsche told the press, “Corporations have historically feared any association with [this] heinous crime.”19 But the human factor, brand damage, resulting profit losses, and legal liabilities have caused the hospitality sector to wake up.20 “One of the things that [Marriott International] recognized is that human trafficking unfortunately negatively impacts the industry, but also our company, so the company identified it as a salient issue for us to address,” Rinsche told Refinery 29, a women’s media outlet.21 Marriott has trained 500,000 employees to identify and report on human trafficking.

Hotel Human Trafficking Legal Issues
As with hotel sexual assault lawsuits in the Caribbean, hotel trafficking lawsuits are beginning to percolate. For example, on Monday, 29 August 2019, Georgia-based law firm Anderson, Tate and Carr filed a lawsuit in the US District Court in Atlanta on behalf of the four trafficked women mentioned above against the following hotel companies:

  • Red Roof Inns, Inc.
  • Choice Hotels International, Inc. (owns Suburban Extended Stay)
  • La Quinta Worldwide, LLC (owned by Wyndham Hotels & Resorts)
  • Extended Stay America

The filings allege the hotels were complicit as perpetrators in sex trafficking and as financial beneficiaries from sex trafficking. So, these are not negligence cases focusing on duty of care as has occurred in other violence related cases.22 These hotel operators knew what they were doing, say the plaintiffs’ attorneys. One of the lawyers on the case told the press, “When the choice comes down to leaving a room empty or renting that room to sex traffickers, the hotels in these lawsuits consistently chose to rent the room to sex traffickers.”23 The firm provided evidence of hotel collusion with the traffickers by way of a sign from one of the hotel lobbies that said, “no refunds after 15 minutes.” This, said the lawyers, was designed to keep sex trafficking consumers from demanding a room refund after a quick session.24

Hotel Human Trafficking Insurance and/or Financial Issues
It is difficult to pinpoint precise financial loss and insurance figures from human trafficking at hotels. Some hospitality companies will try to tap insurance to cover legal fees, but, depending on liability perils and exclusions, the aspect of criminality might negate this in some cases. Otherwise, losses could include RevPAR, brand damage, or losing the property itself. Maximum yearly RevPAR for the above-mentioned properties is as follows:

  • Red Roof Inn, Smyrna, Georgia, $2,829,480 a year
  • Suburban Extended Stay, Chamblee, Georgia, $2,719,250.0 a year
  • La Quinta Inn, Alpharetta, Georgia, $6,740,455.00 a year
  • Extended Stay America, Atlanta, Georgia, $3,295,950 a year
  • Extended Stay America, Baton Rouge, Louisiana, $2,396,225 a year

Collectively, this amounts to over $15 million. Additionally, each of these properties individually could be valued in the low $ millions if they were forced to sell.

Conclusionary Macro Trends
Given the aforementioned case studies and scores of others just like them, the record demonstrates the following trends:

  1. Various forms of violence such as terrorism, physical and sexual assaults, and human trafficking happens at hotels on a regular basis.
  2. Repeatedly, hotels demonstrate that they are woefully unprepared to mitigate violence, and they continually express surprise that these types of activities have happened.
  3. A modern, intelligence and data-driven approach to security (employee vetting, staff training, physical security, and situational threat awareness) would have blunted or prevented violence in all cases presented here.
  4. Most of these episodes of hotel violence occur against a backdrop of clearly visible threat warnings and indicators that either suggested or directly foretold that violence was pending.
  5. Financial damages from these types of attacks – damage, RevPAR losses, physical damages, and insurance payouts – routinely are in the low- to mid- $ millions. (In more extreme cases, damages run into the tens of $ millions, and, on occasion, hundreds of $ millions – the Taj Mahal and the MGM Mandalay Bay, for example).
  6. Legally, while some hotels escape culpability for these type cases via reasonable foreseeability or jurisdiction, totality of circumstances and asset jurisdiction continue to gain traction for plaintiffs.

Possible Evolving Micro Trends
While the following have not been demonstrated as solid, wide ranging macro trends, they do demonstrate possible, evolving trends that might develop into stronger patterns moving forward.

  1. Marriott publicly stated that it was motivated to counter human trafficking because of human harm, social responsibility, fiscal losses, and liabilities. Because Marriott is a hospitality trend setter, and because the hospitality sector follows “herding” type trends, the rest of the hospitality sector might follow suit.
  2. The criminal suits pressed against hotel companies in the Georgia and Louisiana human trafficking case poses a new level of motivation for hotels to vet employees and prevent this crime.
  3. The fact that hotels and law enforcement have used human trafficking case studies to develop mitigation strategies indicates these entities see threat intelligence as central to countering hotel violence and like threat issues. If acted on by hotels and insurance companies, hotel threat data and intelligence could have helped reduce the damages sustained in these cases, and/or, it might have prevented them.

This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

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How Technology Bridges The Duty Of Care Gap

Keeping business travelers safe means keeping them informed and connected to their company and duty of care team. A report from BCD Travel’s Research & Innovation team explores ways travel managers can use emerging technologies like chatbots and artificial intelligence to bridge the duty of care gap; anticipate trouble before it happens; and save precious time when it does.

Download Duty of care, Emerging Technology and Travel Management. Short on time? Check out this infographic.

What’s inside the report

  • How travel managers can use machine learning to better prepare travelers for trips and take preventive action to minimize disruptions
  • Blockchain’s potential for fast, accurate and secure traveler data
  • How bots and chatbots help travel managers fulfill their duty of care commitments
  • Using virtual and augmented reality to guide travelers through a destination or share their situation with support staff
  • How the Internet of Things and telemetric systems can be used to track travelers and potentially assess their well-being

The duty of care report is the fourth in a six-part series on emerging technologies and corporate travel management. Find all the reports published so far at bcdtravel.com/inform.

Download the Travel Risk Survival Kit for strategies and solutions to manage the hazards ahead.

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