Claudia Cornelison | Acheson Hotels, LLC v. Laufer
INTRODUCTION
The Americans with Disabilities Act (“ADA”) requires places of public accommodation, like hotels, to make reasonable modifications to accommodate individuals with disabilities. In accordance with this law, the Attorney General requires hotel owners to identify accessibility features on their websites in sufficient detail to allow individuals with disabilities to assess whether the hotels can meet their needs.
The respondent, Deborah Laufer, a self-appointed ADA “tester” and an individual with a disability has filed over 600 lawsuits against hotel owners and managing companies alleging that their websites are not sufficiently clear about their accessibility features. In these lawsuits, Ms. Laufer seeks injunctive relief and attorney’s fees, forcing smaller businesses to settle to avoid the high cost of litigation.
The problem? Ms. Laufer does not intend to ever visit these hotels. Her lawsuits have forced circuits to address whether testers like herself have Article III standing.
Leading up to the instant case, Acheson Hotels, the petitioner, moved to dismiss Ms. Laufer’s claim for lack of standing. The district court dismissed due to Plaintiff’s “lack of any plausible injury that is concrete and imminent.” The First Circuit then reversed, holding that Laufer’s harm was sufficiently particularized under Article III and that she experienced an “informational injury” in that she visited the hotel website and “failed to receive the necessary information.” Laufer v. Naranda Hotels, LLC, 60 F.4th 156 (4th Cir. 2023). The Supreme Court will ultimately resolve the wide-ranging split between the circuits on this issue.
ISSUE PRESENTED
Does a person who tests hotel websites for compliance with federal disability law have standing to sue a hotel they don’t imminently plan to visit?
THE ARGUMENTS
The First and Eleventh Circuits Find Standing
As discussed above, the First Circuit held that Ms. Laufer suffered an “informational injury” and thus had standing. The First Circuit based this holding on Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982), which held that a black family who had received false information that there were no vacancies in an apartment building based on their race had standing, even though they never intended to rent in the building.
The Eleventh Circuit held that Ms. Laufer had standing, but for a different reason. There, the reasoning was that Ms. Laufer could face an emotional injury that stemmed from illegal discrimination. See Laufer v. Arpan LLC, 29 F.4th 1268, 1274 (11th Cir. 2022). But, Ms. Laufer still must show that she actually experienced this injury as a result of the hotel’s conduct. Id. at 1275.
The Second, Fifth, and Tenth Circuits Reject Standing
The Fifth Circuit held that Ms. Laufer lacked standing because she “visited the [online reservation system] to see if the motel complied with the law, and nothing more. Such allegations do not show enough of a concrete interest in [the motel’s] accommodations to confer standing.” Laufer v. Mann Hospitality, LLC, 996 F.3d 269, 272 (5th Cir. 2021). It rejected the First Circuit’s reliance on Havens Realty, because in Havens Realty the missing information had some relevance to the plaintiff, and in the case before the court, the missing information on the hotel’s website had no relevance to Ms. Laufer. Id. at 273.
The Tenth Circuit rejected standing on the grounds that Ms. Laufer never planned to visit the hotel and thus lacked a concrete injury. See Laufer v. Looper, 22 F.4th 871, 878 (10th Cir. 2022). It also rejected the First Circuit’s application of Havens Realty because the plaintiffs there were given false information based on their race, and in the case before the court, everyone, disabled or not, had access to the same information. Id. at 879.
The Second Circuit held that testers lacked standing based on their status as testers and not as prospective visitors to the hotel seeking ADA accommodation. See Harty v. West Point Realty, Inc., 28 F.4th 435, 443 (2d Cir. 2022). The Second Circuit rejected the First Circuit’s informational injury theory on the grounds that the plaintiff had not shown an interest in the information beyond filing a lawsuit. Id. at 444
The Fourth, Sixth, and Seventh Circuits Have Rejected Standing In Similar Circumstances
Each Circuit evaluated the issue of standing for visually impaired testers alleging that certain credit unions’ websites were not accessible to people with visual impairments, despite those individuals expressing no intention to use the credit union’s services.
The Fourth Circuit rejected the First Circuit’s informational harm theory because the information had no relevance to the litigant, who was ineligible to use the credit union’s services. See Griffin v. Department of Labor Federal Credit Union, 912 F.3d 649, 654 (4th Cir. 2019).
Likewise, the Seventh Circuit held that the plaintiff lacked standing because their injury was “necessarily abstract, amounting to mere indignation that the Credit Union is violating the ADA.” Carello v. Aurora Policemen Credit Union, 930 F.3d 830, 834 (7th Cir. 2019).
Similarly, the Sixth Circuit held that the plaintiff lacked standing because they had not expressed intent to join the credit union about which they alleged ADA violations. See Brintley v. Aeroquip Credit Union, 936 F.3d 489, 493 (6th Cir. 2019). The Sixth Circuit reasoned that the internet is vast and likely to offend, but merely browsing the internet and encountering unpleasant information does not confer standing. Id. at 494.
LOOKING FORWARD
Beyond resolving the circuit splits, this case is also likely to resolve a tension between older precedent regarding standing, like Havens Realty, and more stringent modern precedent requiring concrete harm.
Additionally, the case will likely determine the future of ADA testers. As explained by the United States District Court for the Southern District of Florida, “By and large, ADA cases are brought by a small number of disabled individuals, known as ‘testers,’ who along with their attorneys scour a given district for non-compliant businesses to sue. Once the suit is filed, the business has little choice but settle and pay attorneys’ fees to avoid even higher fees when the plaintiff inevitably prevails on the merits.” Caplan v. All American Auto Collision, Inc., No. 18-61120-CIV, 2019 WL 13084767, at *2 (S.D. Fla. Sept. 16, 2019) (internal citation omitted), aff’d, 36 F.4th 1083 (11th Cir. 2022).
Many have disparaged this form of litigation as it clogs the courts, abuses the ADA’s attorneys’ fees provisions, and undermines the Executive Branch’s authority to decide when and how to enforce the law. Yet, some view ADA tester litigation as a useful tool to force businesses to come into compliance with the ADA and thus create more accessible public accommodations for individuals with disabilities.
If the Court rules against Ms. Laufer, it is likely that tester litigation as it currently exists will come to an end.