Eleventh Circuit Panel Splits Three Ways on Article III Standing to Challenge Supposedly Inaccessible Hotel Website Under Title III of the Americans with Disabilities Act

In Laufer v. Arpan LLC, No.20-14846 (11th Cir. Mar. 29, 2022), the Eleventh Circuit issues a court opinion and three concurring opinions – 68 total pages – holding that a plaintiff who attempted to access a hotel website had Article III standing to bring a claim under the public accommodations provisions of the ADA, Title III.

“Another day, another standing case. In this iteration, we have to decide whether an ADA plaintiff suffered a ‘concrete’ injury when she viewed a hotel’s website that omitted accessibilityrelated information required by federal regulations and as a result, she says, experienced ‘frustration and humiliation’—even though she admits that she had (and has) no intention to personally visit the hotel.”

Plaintiff, who has mobility and vision disabilities, ‘is a self-described advocate for disabled people’s rights and a ‘tester’ who monitors whether places of public accommodation and their websites comply with the ADA,” who filed more than 50 lawsuits against hotels with on-line reservation systems.

Here, she alleges that the defendant’s “website and its listings on third-party sites violated ADA regulations. Specifically, she says, the sites didn’t mention or provide the option of booking accessible rooms, nor did they provide information about rooms’ accessibility features (accessible showers, compliant furniture, etc.). Laufer visited these websites to test them for compliance with the regulations and to assess the hotel’s accessibility features. She alleges that she has suffered and continues to suffer ‘frustration and humiliation as the result of the discriminatory conditions present’ on the websites, and that the sites contribute to her ‘sense of isolation and segregation.’”

Judge Jordan, writing for the court, holds that these alleged intangible injuries are concrete injuries for purposes of Article III. “Despite the absence of a close common-law comparator, we conclude that under existing precedent—both our own and the Supreme Court’s—Laufer has alleged a concrete intangible injury. In Sierra [v. City of Hallandale Beach, 996 F.3d 1110 (11th Cir. 2021)], we held that a deaf plaintiff suffered a concrete ‘stigmatic’ injury when he watched, but could not hear and thus understand, videos that a city posted on its official website and for which it refused to provide closed captioning.”

Although an intervening Supreme Court decision, TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), undercut some of Sierra’s reasoning, that authority still supports standing here. “Even if it’s clear after TransUnion that a violation of an antidiscrimination law is not alone sufficient to constitute a concrete injury, we think that the emotional injury that results from illegal discrimination is . . . . Because she claims not only that she suffered illegal discrimination but also that the discrimination resulted in ‘frustration and humiliation’ and a ‘sense of isolation and segregation,’ she has adequately pleaded a concrete stigmatic injury. And because her emotional injury is her emotional injury, it affects her ‘in a personal and individual way’ and is therefore sufficiently particularized.”

The panel remands the case “for the district court to determine (or, if it has done so already, to clarify) whether, as a factual matter, Laufer has shown that she suffered the requisite frustration and umiliation as a result of viewing the Value Inn’s websites . . . . And of course, even if the district court finds that Laufer was in fact frustrated and humiliated, it must also assure itself that she has established the other elements of standing—the sort of imminent future injury required in a suit for injunctive relief, traceability, and redressability.”

While the panel opinion occupied just over 13 pages, there are 54 additional pages of concurrences.

Judge Jordan, concurring in his own opinion, advances an additional ground to support standing. “I also believe that Ms. Laufer has standing as an ADA tester under an ‘informational injury’ rationale pursuant to Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). Given the trend of recent Supreme Court cases, Havens Realty may be inconsistent (in whole or in part) with current standing jurisprudence. For now, though, it remains binding precedent that governs here.”

Judge Newsom, concurring, notes his own lengthy separate opinion in Sierra proposing an entirely new test for standing. “This case—which involves a self-avowed ‘tester’ plaintiff who alleges her own discrimination-based -stigmatic’ injury but who, by her own admission, principally seeks to advance the rights of disabled people generally—implicates . . . the issues that I flagged in Sierra.” Judge Newsom summarizes that under his standard, “[t]his case is straightforward: Laufer openly advertises herself as a ‘tester’ and an ‘advocate of the rights’ of others and admits that she has no intention ever to patronize the hotels whose policies she is attempting to change. Even in less obvious cases, it would seem to me significant—and indicative of tester status—if a plaintiff brought herself, as Laufer did, to the source of her own injuries in order to manufacture standing to sue and took actions that she wouldn’t otherwise have taken but for her desire to advance the rights of others. In those circumstances—which strongly suggest that the plaintiff has exercised executive enforcement discretion—Article II [of the Constitution] imposes a real constraint.”

Finally, in three-page opinion, Judge Carnes flags the point that when the plaintiff alleges a subjective, intangible injury such as frustration, humiliation, or sense of segregation, it may prove difficult to blow it up. “It is unlikely that at a hearing on the issue there will be any witnesses refuting Laufer’s own testimony about how she felt and how much, if any, distress she suffered. How could there be any, since we are talking about what went on inside her head?” But the district court need not credit this testimony even if it’s unrefuted. “Were it otherwise, a plaintiff in this kind of case could always establish injury by testifying that she suffered in ways that only she could possibly know or have witnessed. The injury in fact requirement of standing is not that much of a pushover.”

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