Today’s blog entry concerns the question of whether a person acting as a tester can ever have standing to pursue ADA claims. The case of today is Lauffer v. Looper, a published decision from the 10th Circuit decided on January 5, 2022, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff lacks standing; and thoughts/takeaways. Considering how short the blog entry is, the reader will probably want to read the whole thing.

 

I

Facts

 

Plaintiff is a resident of Pascoe County Florida, uses a wheelchair, and requires accommodation due to her disability. In her complaint, she described herself as an advocate of the rights of similarly situated disabled persons and a tester for the purpose of asserting her civil rights in monitoring, sharing, and determining whether places of public accommodation and their websites are in compliance with the ADA. Defendant own the Elk Run Inn, a hotel in Craig, Colorado. Plaintiff alleges that their website did not identify accessible rooms, did not allow for booking of accessible rooms, and provided insufficient information as to whether the rooms at the hotel are accessible. While her complaint did allege an intention to revisit the website to see if the website had come into compliance with 28 C.F.R. §36.302(e), at no time did she allege an intent to use the website to book an accessible room for her actual use.

 

II

Court’s Reasoning That Plaintiff Lacks Standing

 

  1. In Spokeo v. Robbins, the United States Supreme Court said that Article III standing requires a concrete injury even in the context of a statutory violation.
  2. In Trans Union, LLC v. Ramirez, the Supreme Court emphasized that Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve the courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III. That is, for standing purposes an important difference exists between a plaintiff’s statutory cause of action to sue a defendant over the defendant’s violation of federal law and a plaintiff’s suffering concrete harm because of the defendant’s violation of federal law. In other words, under Article III, an injury in law is not equivalent to an injury in fact.
  3. Article III grants federal courts the power to redress harms that defendants cause plaintiffs. It does not grant federal courts a freewheeling power to hold defendants accountable for legal infractions.
  4. Plaintiff conceded that she has no concrete plan to visit Craig, Colorado, or to book a room at the Elk Run Inn.
  5. Article III standing requires a concrete injury even in the context of a statutory violation. The concrete injury must affect the plaintiff in a personal and individual way.
  6. Plaintiff made no allegation that she was given false information based upon discrimination as is the case when it comes to testers under the Fair Housing Act.
  7. Status as a tester alone is insufficient to confer standing.
  8. Plaintiff did not allege that information was denied to her because of her disability nor could she because all individuals had access to the same information on the website. A lack of information is not the same thing as information grounded in misrepresentation and racial animus.
  9. Plaintiff identified no downstream consequences from failing to receive the required information. That is, plaintiff did not allege that she had any interest in using the information she obtained from the website beyond bringing this lawsuit. She has no plan to visit Craig, Colorado. She did not attempt to book a room at the defendant’s place of business and has no intent to do so.
  10. In a footnote, the court mentioned that the Fifth Circuit said that to allege an informational injury, plaintiff would need to allege at least that the information had some relevance to her. Even so, violation of a legal entitlement is not the same as an injury in fact.
  11. While it is true that the 10th Circuit has previously held that anyone who has suffered an invasion of a legal interest protected by title III may have standing regardless of his or her motivation in encountering that invasion, that same decision also emphasized that the general requirements of standing were not being displaced. In this case, plaintiff did not allege that she would encounter any accessibility barriers because she had no intention of attempting to access the Elk Run Inn itself.
  12. Testers must satisfy the constitutional requirements of Article III.
  13. Plaintiff’s status as a tester did not defeat standing, but nor does it automatically confer standing.
  14. Plaintiff did not allege that she was prevented from accessing the website because of her disability.

 

III

Thoughts/Takeaways

 

  1. The decision is a published decision and so can be freely cited.
  2. Tester standing under this decision is sort of a thing but is also not sort of a thing. That is, being a tester by itself is insufficient. There has to be some misrepresentation involved or the tester actually has to demonstrate that they intend to show up at the physical space and take advantage of it. In theory, tester standing exists but not without more, which means that tester standing along the lines of the Fair Housing Act does not exist with respect to title III of the ADA, at least when it comes to the rules pertaining to accessibility of hotel rooms being advertised. A lack of information is simply not enough.
  3. A person could also allege that there are downstream consequences from failing to get the required information. However, that allegation without more isn’t enough either. In that situation, plaintiff would have to at least allege an intent to visit the locale, or to book a room at the defendant’s place of business.
  4. Legal entitlement is not the same as an injury in fact.
  5. Importantly, this is not a case where the plaintiff said that the website itself was inaccessible due to her disability.
  6. I could see the principles of this case being applied to Article III standing issues generally, such as in architectural barrier cases.
  7. On the plaintiff side, a plaintiff needs to be specific about how the statutory harm makes it a personal problem for that individual. It certainly does appear that courts are getting very frustrated with serial plaintiffs and will start using standing principles, such as the ones laid out here, to cut down on their filings. I have said for quite a long time that a hybrid fact-noticed based pleadings approach is the best way to go.
  8. This decision is not as clearly applicable to an inaccessible website situation because in that situation, a plaintiff cannot meaningfully access the website in the first place.
  9. Considering the current configuration of the Supreme Court, I would expect this decision to be affirmed if this case were appealed to the Supreme Court by at least a 6-3 margin and probably larger.
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Photo of William Goren William Goren

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a…

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.