Today’s blog entry come from the First Circuit, Laufer v. Acheson Hotels, LLC, here. It discusses standing and creates a split in the circuits. Undoubtedly, this issue will go before the Supreme Court. The facts of the case are pretty straightforward. What you have is a serial plaintiff and an avowed tester of Internet sites. In this case, she focuses on the hotel reservation rule and checks sites to see if they are complying with the specific hotel reservation rules in the Code of Federal Regulations. While she has an intention of visiting the website to see if the website is complying with the rule, she has no intention of actually visiting the properties themselves. Does she have standing? The First Circuit says she does. As usual, the blog entry is divided into categories and they are: court’s reasoning that plaintiff has standing; effects of prior Supreme Court cases and other Circuit Court decisions; plaintiff has standing to seek injunctive relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Court’s Reasoning That Plaintiff Has Standing


  1. When a place of public accommodation violates the ADA and discriminates against a person with disability, the ADA and the regulations implementing it permit a private individual to bring enforcement actions in federal court.
  2. The question is whether a complaint contains enough facts to demonstrate that the court has subject matter jurisdiction.
  3. In order to have standing, plaintiff must show that she: 1) suffered an injury in fact; 2) the injury is fairly traceable to the challenged conduct of the defendant; and 3) the injury is likely to be redressed by a favorable judicial decision.
  4. An injury in fact means the invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.
  5. Standing doctrine has several purposes, including: 1) tends to ensure that the legal question presented to the court are resolved in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action and not in the rarefied atmosphere of a debating society; 2) ensures federal courts don’t turn into a vehicle for the vindication of the value interests of concerned bystanders; and 3) reflects the separation of powers principles that courts should not be used to usurp the powers of the political branches.
  6. Since standing is jurisdictional, it cannot be waived or forfeited and can be raised at any time by anyone. When it is raised, the burden of showing standing rests on the party invoking the court’s jurisdiction. A party has to meet that burden otherwise the case has to be dismissed.
  7. In essence, standing is the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.
  8. Plaintiff’s claim is not so implausible that it is insufficient to preserve jurisdiction.
  9. The hotel reservation regulation, 28 C.F.R. §36.302(e), clearly provides that hotels in their reservation portals must provide some detail-enough detail-to allow individuals with disability to know what services they can enjoy.
  10. Concrete injuries must actually exist, though the injury does not have to be tangible. Intangible injuries, such as the suppression of free speech or religious exercise or the invasion of common law rights actionable without wallet injury, can also be concrete.
  11. In figuring out whether an injury is concrete, the Supreme Court has said that you look to both history and the judgment of Congress.
  12. It is the responsibility of judges to independently decide whether a plaintiff has suffered a concrete harm under article III even if Congress adamantly says they do.
  13. A plaintiff’s deliberate choice to see if accommodations are obeying a statute does not mean that her injury impact is any less real or concrete.
  14. The purpose of the reservation rule requiring that places of lodging make available in their accommodation descriptions on the reservation services information about the accessible feature in their hotel and guest rooms is to reasonably permit a person to assess independently whether a given hotel meets her accessibility needs, which was exactly what the plaintiff was doing.
  15. There is also no carveout in the hotel reservation regulations that the information need only be turned over if the person trying to make a reservation actually wants to make a reservation.
  16. The Supreme Court has said that a black tester has standing with respect to the Fair Housing Act because that tester had a right to truthful information but was denied. The same applies here because the plaintiff was denied information to which she has a legal entitlement. Another way to look at it is that the black tester lack of intent to rent an apartment did not negate the simple fact of injury. Therefore, plaintiff’s lack of intent to book a room at the hotel room would not negate her standing either.
  17. The Supreme Court has repeatedly said that denial of information to which plaintiffs have a legal right to can be a concrete injury in fact.
  18. Prior Supreme Court opinions have made clear that a denial of information that a plaintiff is statutorily entitled to can make for a concrete injury in fact. Those same decisions hold that the denial of information to a member of a protected class alone can suffice to make an injury impact and that the person’s intended use of the information isn’t relevant.



Effect of Prior Supreme Court Cases and Other Circuit Court Decisions


  1. It is up to the Supreme Court to say that a decision overrules prior decisions of the Supreme Court and not to the Circuit Courts of Appeals.
  2. Explicit holdings of the Supreme Court overrule any contrary dictum by the Supreme Court in later decisions. That is, arguments that the Supreme Court implicitly overruled one of its prior decisions are inherently suspect.
  3. It is unlikely that the Supreme Court would overrule a prior decision in dictum with only three sentences of explanation contained in a footnote.
  4. The black tester case, Havens Realty, is so similar to plaintiff’s case as to render any distinction between the two of them insufficiently material. So, the First Circuit is bound by that decision until the Supreme Court says otherwise.
  5. The ADA make the denial of information discrimination against persons with disabilities and gives that person the right to sue in response. That plaintiff had no intent to use the information for anything but a lawsuit doesn’t change anything because she was still injured in precisely the way the statute was designed to protect.
  6. The regulations at issue specifically make the denial of accessibility information actionable discrimination against persons with disabilities. That is, the regulation was not designed only to make sure that a person with a disability could book a room but to ensure that a person with a disability could independently assess whether a given hotel or guest room meets his or her accessibility needs. The reservation rule recognizes that the public information on accessibility features is necessary to make sure persons with disabilities are able to reserve hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms.
  7. Denying the plaintiff the same efficiency, immediacy, and convenience as those not requiring accommodations is exactly the discrimination the regulations are trying to stamp out.
  8. The decisions of other circuit courts are simply not persuasive for several reasons: 1) the decision do not explain why the ADA tester plaintiff didn’t suffer an injury but the black tester plaintiff in Havens Realty did even though her only interest in using the information was testing compliance and bringing her lawsuit, just as is the case with an ADA reservation rule tester; 2) regardless of whether the rule involves a misrepresentation or any representation, it is a distinction without a difference. In either case, the law conferred on the plaintiff a legal right to truthful information about an accommodation; 3) the Supreme Court recently reaffirmed that the violation of a procedural right granted by statute can be sufficient in some circumstances so that plaintiff’s need not allege any additional harm beyond the one Congress has identified; 4) downstream effects is not something that appears in the most relevant Supreme Court case law governing standing.
  9. Discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of a disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious noneconomic injury to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.
  10. Trans Union, discussed here, cited discriminatory treatment as an example of concrete de facto injuries that were previously inadequate at law that Congress could elevate to the status of legally cognizable injuries.
  11. Plaintiff alleges that she suffered frustration and humiliation when the hotel reservation portals did not give her adequate information about whether she could take advantage of the accommodations. Without that information, plaintiff is not put on an equal footing to experience the world in the same way as those who do not have disabilities. Avoiding precisely that part is the point of the ADA which was designed to advance equal citizenship for persons with disabilities by aiming to guarantee a baseline of equal citizenship by protecting against stigma and systematic exclusion from public and private opportunities. When faced with exactly this situation, the 11th Circuit, discussed here, found standing
  12. Even assuming downstream consequences are a thing, plaintiff’s feelings of frustration, humiliation, and second-class citizenry are downstream consequences and adverse effects of the informational injury she experienced.
  13. Plaintiff’s injuries are particularized. In particular, she personally suffered the loss of dignity and feeling less than equal and endured humiliation, frustration, and embarrassment.
  14. The injury is also differentiated from others because plaintiff is a person with a disability who personally suffered the denial of information the law entitles her to have.



Plaintiff Has Standing to Seek Injunctive Relief


  1. Standing to seek injunctive relief turns on the question of whether the plaintiff has shown a sufficient likelihood that she will again be wronged in a similar way, sometimes referred to as imminence.
  2. Imminence requires that the injury not be conjectural, hypothetical, or simply possible. Describing this concept, the Supreme Court has said that a plaintiff’s proclaimed intent to return to the place that they have visited before is by itself simply not enough.
  3. Plaintiff’s intent to revisit the website are the farthest thing from those same day intentions found insufficient in Supreme Court decisions. She specifically alleges that she has concrete plans to go back to the websites in the near future. In fact, she has a sophisticated system to continue monitoring the noncompliant website she finds.
  4. Plaintiff is a self-proclaimed ADA tester who makes it her job to test website for ADA compliance.
  5. Plaintiff also asserts that while the hotels reservation system had made its website ADA compliant, it had not persuaded third-party reservation services to do the same. So, her likelihood of future injury is far from conjectural or hypothetical rather it is imminent.
  6. Defendant’s mootness argument does not fly because mootness is a demanding standard. For a case to be moot, it must be shown that it is impossible for a court to grant any effectual relief whatsoever to plaintiff assuming the plaintiff prevails. Further, the party asserting mootness bears the burden of showing that it exists. As mentioned above, the third-party reservation sites have yet to comply with the reservation rule.
  7. Plaintiff’s claims against the third-party websites are not insubstantial and frivolous.
  8. The reservation rule extends to reservations made by any means including through a third-party.
  9. The defendant has not represented that it made the information available now on its website to all of the 13 third-party booking websites that plaintiff alleges are noncompliant.





  1. Judge Howard agreed that the complaint adequately alleges standing for declaratory relief, but was doubtful that it sufficiently alleges standing to pursue injunctive relief. That said, Judge Howard did not file a separate opinion.
  2. I previously wrote a blog entry discussing a Seventh Circuit dissenting opinion arguing that emotional distress damages were a part of the Fair Debt Collection Practices Act, here. I argued that that dissenting opinion was a strong argument for the Supreme Court to distinguish tester standing under the Fair Housing Act from standing under title III of the ADA. In particular: 1) the Fair Housing Act has specific references to perceivable emotional harm within its statute but title III explicitly does not; 2) per Cummings, which we discussed here, the Rehabilitation Act does not allow for emotional distress damages; 3) since damages are not an element of title III of the ADA, it is impossible to show that damages are allowed under title III. Therefore, remedies incorporating an element of emotional distress have not been around for a long time; 4) the judgment of Congress pronged is going to be a difficult bar for a plaintiff to get over because of the statutory provisions of title III of the ADA, which doesn’t even allow for damages; 5) there is nothing in the ADA’s findings section explicitly addressing intangible harms. That is, you do not see language like you do in the Fair Debt Collection Practices Act that foreseeably lead to the conclusion that emotional distress is in play; 6) Justice Thomas’s private v. public right distinction that he discussed in TransUnion won’t help a person with a disability because disability discrimination is a public right.
  3. Emotional distress damages are not a thing under title III of the ADA. All you can get is injunctive relief and attorney fees. That raises a real question to my mind as to the dignitary harms suffered by the plaintiff being sufficient for a plaintiff to get standing because emotional distress damages are not a thing under title III.
  4. The court finesses the intent to return by suggesting that the proper analysis is an intent to return to the website and not to the hotel because the reservation rule involves a website and not the physical place. It’s an interesting argument taken by the court as I have not seen intent to return parsed that way before.
  5. Not every Code of Federal Regulations results in a private cause of action being available. See, Schmidt v. Pennymac Loan Services, LLC, 106 F. Supp. 3d 859 (E.D. Mich. 2015).
  6. TransUnion specifically said that a statutory injury by itself is not sufficient.
  7. Since the Fair Housing Act implicitly recognizes that emotional harms are in play when housing discrimination occurs but the ADA does not have any similar language, certainly not in title III, the Supreme Court decision in Havens Realty can be distinguished.
  8. The Supreme Court frequently narrows cases without explicitly doing so, particularly when Chief Justice Roberts was a swing vote.
  9. On a personal level, it is very unclear to me whether the hotel reservation rule really makes a difference for people with certain kinds of disabilities. I can’t tell you how often I go into a hotel room where the hotel simply does not understand what it means to have a room that is accessible to a deaf individual. It is not unusual for me to get into a back-and-forth with the hotel to explain to them that the room is not accessible even though they are convinced that it is. In other words, if a website were to tell me that a room was accessible to a deaf individual I wouldn’t believe it unless they were to list out what exactly is in that hotel room.
  10. The burden of showing standing is on the complainant, while the burden of showing mootness is on the defendant. Mootness was never easy to show and standing no longer is.
  11. I fully expect my colleague Richard Hunt to eventually blog on this case, and I look forward to reading his take on the First Circuit decision.
  12. This case is undoubtedly headed to the Supreme Court. Figuring out what the Supreme Court is going to do in disability discrimination matters is a fools errand. That said, for the reasons I discuss in this blog entry I do not like the chances of the plaintiff when it gets to the Supreme Court.


Go Braves!