Do Self-Appointed 'Tester' Plaintiffs Have Standing to Sue Under the ADA?
New York Law Journal
May 15, 2023
On March 27, 2023, the U.S. Supreme Court granted certiorari to review the U.S. Court of Appeals for the First Circuit’s holding in Acheson Hotels v. Laufer, 50 F.4th 259 (1st Cir. 2022) on the issue of whether a self-appointed Americans with Disabilities Act (ADA) “tester” plaintiff has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even absent an intention of visiting that place of public accommodation. In this first review of an ADA Title III case in almost two decades, the Supreme Court will address this issue, which has split the circuit courts across the country, and a First Circuit opinion that is directly at odds with recent Second Circuit precedent. The Supreme Court’s decision could have significant ramifications for ADA litigation that has been wildly proliferating in the Second Circuit and elsewhere for the past decade.
The ADA and Its Implementing Regulations
Title III of the ADA prohibits a “public accommodation” from discriminating against any individual on the basis of disability. The ADA defines discrimination to include the “failure to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” The ADA, in turn, authorizes the Attorney General to promulgate regulations to carry out its mandate. One such regulation pertains to hotel reservations. It provides that a “public accommodation” operating a “place of lodging” must “with respect to reservations made by any means … 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.”
The Attorney General has authority to investigate alleged violations and file suit to enforce the ADA. See 42 U.S.C. Section 12188(b); 28 C.F.R. Sections 36.502-36.503. However, the ADA also permits private individuals to sue when they have been subjected to discrimination on the basis of disability, 42 U.S.C. Section 12188(a); 28 C.F.R. Section 36.501, and the court may award attorney fees to the prevailing party, 42 U.S.C. Section 12205.
‘Tester’ Plaintiff ADA Lawsuits
Over the last decade, a cottage industry has arisen in which a number of self-appointed “tester” plaintiffs have clogged federal court dockets with lawsuits against businesses whose websites allegedly fall short of the ADA’s requirements. Given the ADA’s fee shifting provision, “tester” plaintiffs often use the threat of attorney’s fees to procure a quick settlement. These “tester” plaintiffs often do not intend to visit the businesses whose websites they test; they simply desire to bring lawsuits to compel those businesses to comply with the ADA—and to recover attorney fees for their troubles.
One such individual is Deborah Laufer. Laufer, a self-described ADA “tester” plaintiff, has filed more than 600 federal lawsuits against hotel owners and operators, alleging that their websites do not provide adequate information about whether the hotels are accessible to persons with disabilities. Although most of these cases have settled quickly, a handful of Laufer’s cases—and those of similarly situated “tester” plaintiffs—have made their way to the U.S. courts of appeals, resulting in conflicting decisions as to whether “tester” plaintiffs like Laufer have Article III standing to bring their claims.
‘Acheson Hotels’ and the Circuit Split on Standing of ‘Tester’ Plaintiffs
In September 2020, Laufer filed one of her many ADA lawsuits against Acheson Hotels, LLC (Acheson) in the District of Maine. Acheson operates an inn in a small town on Maine’s southern coast. Laufer alleged that Acheson accepts reservations for the inn on its website and travel-related websites, but she found that none of those websites provided sufficient information to determine whether the rooms of the inn were accessible to her. The district court concluded that Laufer lacked Article III standing to pursue her claims because she had no real intention of booking a room at the inn, but the First Circuit reversed. It held that the denial of accessibility information alone was an actionable Article III injury, and the fact “that Laufer had no intent to use the information for anything but a lawsuit doesn’t change things.” Acheson Hotels, 50 F.4th at 271-72. In any event, the court reasoned, “dignitary harm or stigmatic injuries caused by discrimination have long been held a concrete injury-in-fact, even without informational injury,” and “Laufer’s feelings of frustration, humiliation, and second-class citizenry” are “‘downstream consequences’ and adverse effects of the informational injury she experienced,” which the court held were sufficient to confer standing.
In reaching its conclusion, the First Circuit widened an already existing circuit split. Three courts of appeals had rejected “tester” standing on virtually identical facts. See Harty v. W. Point Realty, 28 F.4th 435, 443-44 (2d Cir. 2022); Laufer v. Looper, 22 F.4th 871, 879-81 (10th Cir. 2022); Laufer v. Mann Hospital, 996 F.3d 269, 273 (5th Cir. 2021). The Eleventh Circuit, however, held that Laufer’s allegations that she suffered “frustration and humiliation” and other “stigmatic” injury as a result of another inn’s failure to provide accessibility information on its website, if true, would establish standing. See Laufer v. Arpan, 29 F.4th 1268, 1273-75 (11th Cir. 2022).
SCOTUS Is Poised to Reconcile Article III Standing as to ‘Tester’ Plaintiffs
The Supreme Court is now poised in Acheson Hotels to answer the “tester” plaintiff standing question that has divided the circuits. In doing so, it will need to reconcile its own standing precedents, which appear to be in tension with one another.
In Havens Realty v. Coleman, 455 U.S. 363 (1982), the Supreme Court held that a Black “tester” plaintiff had standing to assert a race discrimination claim under the Fair Housing Act against a realty company that falsely represented to her that it did not have any vacancies in its apartment complexes, while informing a white “tester” that it did. As the First Circuit noted, in Havens Realty, “the Black plaintiff was a tester, too—she had no intent of ever renting an apartment from the defendant and went posing as a renter only to figure out if the defendant was violating the law. Yet the Supreme Court said that she still had standing.” Acheson Hotels, 50 F.4th at 269. The First Circuit relied heavily on Havens Realty in finding that Laufer had standing.
Havens Realty’s holding, though, may have been eroded by the Supreme Court’s recent decisions in Spokeo v. Robins, 578 U.S. 330, 340 (2016), and TransUnion v. Ramirez, 141 S. Ct. 2190 (2021). In Spokeo, the court explained that Congress’ decision to identify and elevate intangible harms to statutory causes of action is “instructive and important,” but cautioned that a plaintiff does not automatically satisfy “the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.”
The court then took a step further in TransUnion, a class action lawsuit brought by consumers under the Fair Credit Reporting Act (FRCA) against a credit-reporting agency that misleadingly identified the class plaintiffs in their consumer credit reports as possible matches to names on a government list of terrorists, drug traffickers, and other serious criminals. One part of the claim was that the credit-reporting agency did not mail information to the class plaintiffs in the format required by the FRCA. The court rejected that claim, as well as claims by putative class members whose information was not disseminated to third parties, finding that the plaintiffs’ own receipt of misleading information about themselves, or a mere negative designation unaccompanied by any dissemination to anyone (even to the plaintiffs themselves), was insufficient to confer standing because these plaintiffs could not demonstrate that those acts “caused them a harm with a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts”—or any harm at all, for that matter. Significantly, as to the incorrect formatting issue, the court found no concrete “denial of information” injury because that subgroup of the putative class was not in fact denied information. “Moreover,” the Court noted (in what some have argued is dicta) there were no identifiable “‘downstream consequences’ from failing to receive the required information … An ‘asserted informational injury that causes no adverse effects cannot satisfy Article III.’” Id. at 2214 (quoting Trichell v. Midland Credit Management, 964 F.3d 990, 1004 (11th Cir. 2020)).
Justice Clarence Thomas issued a strong dissent in TransUnion, joined by three other justices. Nevertheless, a majority of the court has evinced an intent to narrow the contours of the standing doctrine, with the apparent purpose of ensuring that the courts fulfill only the limited role conferred on them by Article III of the Constitution—to resolve only “‘a real controversy with real impact on real persons’” who have a “personal stake” in the case. TransUnion, 141 S. Ct. at 2203 (quoting American Legion v. American Humanist Association, 139 S. Ct. 2067, 2103 (2019) (concurring, Gorsuch, J.)). Thus, if the majority holds, it seems probable that the court will hold in Acheson Hotels that ADA “tester” plaintiffs like Laufer who profess no intention to use the information they have been denied, cannot establish a concrete injury-in-fact and, thus, lack standing.
That said, the separation of powers argument cuts both ways here, as Laufer will lean on Havens and the TransUnion dissent to contend that Congress’ decision to provide a private right of redress for a statutory violation is alone sufficient to establish a concrete injury, and that the “dignitary” or “stigmatic” injury experienced as a result of a statutory violation—particularly in the context of the ADA—is a sufficiently concrete injury-in-fact to confer standing.
The court’s decision in Acheson Hotels will not only decide the fate of ADA “tester” plaintiffs like Laufer who challenge a hotel’s alleged failure to provide disability accessibility information on its website, despite having no intention to use that information, but also could have ramifications for other types of ADA cases. For instance, three circuits have rejected claims of standing where visually impaired plaintiffs sued credit unions, alleging that their websites violated the ADA because they were not usable for people with visual impairments, reasoning that non-credit union members, who cannot bank with the defendants, cannot be harmed by the deprivation of website access. See Griffin v. Department of Labor Federal Credit Union, 912 F.3d 649 (4th Cir. 2019); Carello v. Aurora Policemen Credit Union, 930 F.3d 830 (7th Cir. 2019); Brintley v. Aeroquip Credit Union, 936 F.3d 489 (6th Cir. 2019). Similarly, website accessibility claims by vison-impaired users, more that 3,000 of which were filed in 2022, many by “tester” plaintiffs, continue to proliferate. In some of these cases, the plaintiffs concede no intention to use the information in any way or have no practical ability to do so. The court’s decision in Acheson Hotels will likely impact the trajectory of these cases as well. At the very least, defendants struggling to address these claims, particularly small business with limited resources, can take some comfort in the expectation that the Supreme Court may curb the most abusive of these types of ADA lawsuits. At a minimum, the court may require ADA plaintiffs to affirmatively plead factual allegations in sufficient detail to raise a plausible inference that they suffered real dignitary or other harm as a result of a business’ noncompliant website. Should it do so, ADA defendants may have strong grounds to challenge a boilerplate or poorly pleaded claim on a motion to dismiss, which ultimately may dissuade plaintiffs from pursuing lawsuits over minor infractions that cause no concrete injury and other less meritorious claims.
Reprinted with permission from the May 15, 2023 issue of the New York Law Journal. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or firstname.lastname@example.org or visit www.almreprints.com.