On March 27, 2023, the United States Supreme Court granted certiorari in Laufer v. Acheson Hotels[1] to decide this very issue. Deborah Laufer, who has various physical impairments, is a serial litigant who has filed hundreds of ADA lawsuits throughout the country. She is a self-admitted “tester” that seeks out potential website violations in order to pursue legal action. Here, Laufer filed suit against Acheson Hotels for failing to provide information concerning the hotel’s accessibility and accommodations on its website during the booking process.[2] Laufer cited to federal regulations requiring a “place of lodging” to “identify and describe accessible features” in its reservation service “in enough detail to reasonably permit individuals with disabilities to assess independently whether [the place of lodging] meets his or her accessibility needs.”[3] There is little dispute that Laufer never intended to visit Acheson Hotels or book a room. Instead, she combed the internet in an attempt to find a non-compliant website. Her lawsuit asked for declaratory and injunctive relief as well as attorneys’ fees and costs.
Acheson Hotels filed a motion to dismiss for lack of standing arguing that the federal courts were not intended to litigate hypothetical injuries like this. Instead, a potential litigant may only maintain legal action when there is a concrete injury—i.e., the individual must be honestly seeking to use the business’s services. The district court agreed and dismissed Laufer’s suit citing authority from a number of other jurisdictions, including several where Laufer had previously been the plaintiff.[4] While acknowledging the split at the circuit court level over this issue, the First Circuit reversed emphasizing binding Supreme Court precedent from several decades ago allowing “testers” to pursue legal action even if the individual had no intent on conducting business with the company at issue.[5] The First Circuit did note, however, that tides may be turning given recent dicta in TransUnion LLC v. Ramirez.[6] There, the Supreme Court hinted that a lack of specific consequences resulting from a technical violation may be fatal to standing. Now that the Supreme Court is taking a look at this issue, we will soon have clarity.
Given the focus by the EEOC and the plaintiffs’ bar on the potential discriminatory nature of company websites,[7] businesses must stay vigilant to ensure compliance. This includes understanding the ADA regulations that apply to your business and seeking counsel to review for potential issues if necessary.
[1] 50 F.4th 259 (1st Cir. 2022); 21-1410P-01A.pdf (uscourts.gov).
[2] The case was filed in the United States District Court for the District of Maine.
[3] 28 C.F.R. § 36.302(e).
[4] See, e.g., Laufer v. Mann Hosp., L.L.C., No. 20-50858, 2021 WL 1657460, at *2 (5th Cir. Apr. 28, 2021) (“[Laufer] visited the ORS to see if the motel complied with the law, and nothing more. Such allegations do not show enough of a concrete interest in Mann’s accommodations to confer standing.”); Laufer v. Looper, No. 1:20-cv-02475-NYW, 2021 WL 330566, at *5 (D. Colo. Jan. 11, 2021) (“[W]ithholding of information itself does not constitute a concrete injury—the information must have some relevance to the litigant.”); Laufer v. Dove Hess Holdings, LLC, No. 5:20-cv-00379BKS-ML, 2020 WL 7974268, at *15 (N.D.N.Y. Nov. 18, 2020) (“[T]o allege an injury-in-fact for standing purposes, a plaintiff challenging a website’s ADA violations must demonstrate that she had a purpose for using the website that the complained-of ADA violations frustrated, such that any injury is concrete and particularized to the plaintiff.”).
[5] Havens Reality v. Coleman, 455 U.S. 363 (1982)(an African-American tester was allowed to proceed in a suit against an apartment complex that lied to her about vacancies at the property even though she had no intent to rent at the complex).
[6] TransUnion LLC v. Ramirez, 210 L. Ed. 2d 568, 141 S. Ct. 2190, 2214 (2021).
[7] See prior blog posts: The EEOC Continues to Push Enforcement of Anti-Discrimination Laws In Relation to Employers’ Use of Artificial Intelligence (“AI”) In Hiring | Employment Class Actions: A General Counsel Briefing (foxrothschild.com); ADA Litigation Targeting Website Accessibility Shows No Signs of Slowing | Employment Class Actions: A General Counsel Briefing (foxrothschild.com).
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