Fourth Circuit Joins First and Eleventh 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. Naranda Hotels, LLC, No.20-2348 (4th Cir. Feb. 15, 2023), the Fourth Circuit holds that a disabled customer had Article III standing to pursue her ADA claim against a Baltimore, MD hotel with an allegedly non-compliant website. I previously discussed this issue in a October 5, 2022 blog entry.

“According to [her] Complaint, Laufer is a resident of Pasco County, Florida, who qualifies as an individual with a disability under the ADA in that she ‘is unable to engage in the major life activity of walking more than a few steps without assistive devices’ . . . . The Complaint outlines Laufer’s accessibility needs with regard to hotels, including ‘handicap parking spaces’ of sufficient width and location; passageways that are ‘free of obstructions’; ‘door knobs, sink faucets, [and] other operating mechanisms’ that are ‘lowered so that [she] can reach them’ and that do not require ‘tight grasping, twisting of the wrist or pinching’; bathroom ‘grab bars’; and doorways with ‘proper clearance.’”

“The federal regulation at the heart of Laufer’s ADA claim is 28 C.F.R. § 36.302(e), which concerns the responsibilities of the owner of a place of lodging ‘with respect to reservations made by any means, including . . . through a third party.’ See 28 C.F.R. § 36.302(e)(1) [the ‘Hotel Reservation Regulation’]. Two paragraphs of subsection (1) of the Hotel Reservation Regulation — paragraphs (i) and (ii) — are particularly relevant to Laufer’s claim. Paragraph (i) provides that a hotel owner must ‘ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms.’ Id. § 36.302(e)(1)(i). And paragraph (ii) provides that a hotel owner must ‘[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.’ Id. § 36.302(e)(1)(ii).”

Laufer in essence complained that defendant Naranda’s website was non-complaint with the regulation. Regarding standing, she alleged she “suffered an informational injury, i.e., that Naranda’s violations of the Hotel Reservation Regulation have ‘deprive[d] her of the information required to make meaningful choices for travel’ . . . . The Complaint also alleges that Laufer has sustained a stigmatic injury, i.e., that she ‘has suffered . . . frustration and humiliation as the result of the discriminatory conditions present at [Naranda’s hotel reservation websites].’ Id. Notably, the Complaint does not mention any travel plans, including whether Laufer had a plan to travel to or through the Baltimore area such that she actually needed to book a hotel room there.” Laufer asserted that she had Article III standing as a “tester.”

The district court dismissed the case on subject-matter jurisdiction grounds. “The court’s decision was largely based on findings not only that Laufer’s alleged travel plans were too indefinite to establish standing, but also that Laufer lacked credibility. See id. at 13 (explaining that inconsistencies in Laufer’s hearing testimony and other evidence ‘significantly undermine her credibility, such that the Court does not believe her alleged plans to visit Maryland post-COVID are genuine’).”

The Fourth Circuit vacates and remands. It addresses the same standing issue already considered in published opinions in five other circuits – four of them involving the same plaintiff – of whether she “sufficiently allege[d] or prove[d] an intention or need to actually book rooms at the defendants’ hotels.” The circuits divided, with the Second, Fifth, and Tenth Circuits finding no standing, while the First and Eleventh Circuits concluded that there was standing on the same essential allegations. (The

D.C. Circuit, in an unpublished decision, also found no standing for Laufer’s claims.)

Laufer, rather than challenge the district courts findings, limited her appeal to the issue of whether for Article III standing purposes she was required to prove an intent to book a room; that is, that she was prevented from reserving a room rather than simply being was denied information about the room. “According to Laufer, she is entitled to the accessibility information as an individual with a disability, and Naranda’s failure to provide it constitutes discrimination under Title III of the ADA. Accepting that theory of Laufer’s ADA claim for purposes of the standing analysis, she has alleged an informational injury that gives her Article III standing to sue” under the principal Supreme Court authority of Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); Public Citizen v. United States Department of Justice, 491 U.S. 440 (1989); and FEC v. Akins, 524 U.S. 11 (1998).

The panel concludes that Laufer alleges all the elements of Article III standing. It holds that the district court erred in not finding allegations of an injury-in-fact: “It matters not that Laufer is a tester who may have visited Naranda’s hotel reservation websites to look for ADA violations in the form of noncompliance with the Hotel Reservation Regulation, and without any plan or need to book a hotel room, just as it mattered not that the Black plaintiff in Havens Realty was a tester who ‘may have approached [defendant Havens Realty] fully expecting that [she] would receive false information [in contravention of the Fair Housing Act], and without any intention of buying or renting a home.’” Indeed, “nothing in the Hotel Reservation Regulation or elsewhere in the ADA expressly requires an intention to book a hotel room to prove a discriminatory failure to provide accessibility information.” The panel also holds that there is “no basis to conclude” on the allegations that Laufer will not be able to establish a “causal connection” between the conduct complained of and the injury, and redressability.

The panel further holds that the allegations would support standing for injunctive relief. “Laufer has alleged plausible intentions to return to Naranda’s hotel reservation websites as part of the ‘system’ described in her Complaint for continually monitoring websites she finds to be in noncompliance with the Hotel Reservation Regulation . . . . And she has demonstrated a likelihood that she will suffer the same informational injury again . . . . In sum, then, Laufer has satisfied all of the requirements to establish her Article III standing to sue Naranda for the alleged informational injury and to seek relief in the form of an injunction.”

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