First Circuit Sides with Eleventh Circuit in Holding that a Disabled Tester Incurs an Informational Injury When Denied Access to Information on a Hotel Website, Creating Article III Standing

In Laufer v. Acheson Hotels, LLC, No. 21-1410 (1st Cir. Oct. 5, 2022), the First Circuit agreed with the Eleventh Circuit – and broke with the Second, Fifth, and Tenth Circuits – that a disabled tester suffers an injury, worthy of Article III standing, when they cannot access information on a hotel reservation website in violation of Title III of the Americans with Disabilities Act.

Earlier this year, the Eleventh Circuit in Laufer v. ARPAN LLC, 29 F.4th 1268 (11th Cir. 2022), held that a tester who landed on a hotel website that omitted accessibility-related information required by federal regulations had Article III standing to bring a federal lawsuit. (My blog entry here.)

Here, plaintiff Laufer “uses a wheelchair or a cane to move around,” has “limited use of her hands and is vision impaired . . . . Defendant Acheson Hotels, LLC, operates The Coast Village Inn and Cottages in a small town on Maine’s southern coast. It accepts reservations for the Inn on its own and other travel-related websites. When Laufer first visited Acheson’s website, she found that it didn’t identify accessible rooms, didn’t provide an option for booking an accessible room, and didn’t give her sufficient information to determine whether the rooms and features of the Inn were accessible to her.”

Plaintiff alleged that the failure to provide this information violates 28 C.F.R. § 36.302(e) – promulgated by the Justice Department, known as the Reservation Rule – which “provides that a “public accommodation” operating a “place of lodging” must “with respect to reservations made by any means . . . [i]dentify 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.” Plaintiff reportedly filed hundreds of these actions throughout the USA.

The district court held that a hotel website user with “no real intention of booking a room” lacks Article III standing to bring suit. But the Eleventh Circuit reverses.

“[W]e assume, in line with Laufer’s theory, that the Reservation Rule requires Acheson to give her certain information. And we further assume, as she alleges in her complaint, that Acheson’s website and other third-party reservation services didn’t provide that information.”

The panel notes that with cases involving intangible injuries, the court evaluating standing must analyze  “both history” (particularly “whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts”) and “the judgment of Congress play important roles” (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)).

“Does Laufer’s self-admitted status as a tester — that she had no intent to do anything but test the website’s ADA compliance — mean she hasn’t suffered an injury?” Defendant contends that “a lack of intent to do anything with the [website] information – like a tester does – makes the information not relevant, and the injury accordingly not concrete for standing.”

But the First Circuit, citing Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) – a housing testing case under section 804 of Fair Housing Act of 1968, 42 U.S.C. § 3604 – holds that there is injury in fact. “The Reservation Rule requires that places of lodging make available — in their accommodation descriptions on their reservations services — information about the accessible features in their hotels and guest rooms . . . . So if the Black tester plaintiff had standing in Havens Realty where the statute gave her a right to truthful information, which she was denied, then Havens Realty would mean that Laufer, too, has standing because she was denied information to which she has a legal entitlement.” Thus, “denial of information that a plaintiff is statutorily entitled to have can make for a concrete injury in fact” and the “person’s intended use of the information is not relevant” to the standing analysis.

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), did not change the Havens Realty analysis. “We can’t overrule prior Supreme Court cases . . . . [W]e think Havens Realty shows the clear path here — it is so similar to Laufer’s case as to render any distinction insufficiently material. We’re thus bound by that decision unless the Supreme Court tells us that TransUnion overruled it.”

“What’s more, Laufer suffered a concrete injury in fact even if TransUnion ushered in a new era of informational injury . . . . Laufer alleges she suffered ‘frustration and humiliation’ when Acheson’s reservation portals didn’t give her adequate information about whether she could take advantage of the accommodations. Without that information, Laufer is put on unequal footing to experience the world in the same way as those who do not have disabilities. She alleges that the ‘discriminatory conditions’ on Acheson’s website contribute to her ‘sense of segregation and isolation’ and deprive her of ‘full and equal enjoyment of the goods, services, facilities, and/or accommodations available to the general public.”

Moreover, “Under any reading of Havens Realty or TransUnion, Laufer’s injury is particularized. As a pure informational injury, Laufer was not given information she personally had a right to under the ADA and its regulations, causing her precisely the type of harm Congress and the regulation sought to curb — the unequal ability to know what accommodations a person with disabilities can take advantage of.”

Finally, the plaintiff established standing for injunctive relief. Owing to her project as a tester, she will almost certainly face the same barriers when she attempts to revisit the website. “As an ADA tester, Laufer says she has a sophisticated system to continue monitoring the non-compliant websites she finds. She visits the website multiple times before filing her complaints, and then schedules herself to review the website again after the complaint is filed. And she says she will revisit Acheson’s online reservation system ‘[i]n the near future’ to test its ADA compliance.”

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