Passing the Test: ADA “Tester” Plaintiff Has Standing to Sue Based on Lack of Information on Hotel’s Website

An ADA plaintiff sufficiently pleaded a concrete intangible injury, and thus had standing to sue, when she alleged that she was unable to access information on a hotel’s website about accommodations for persons with disabilities, even though she visited the hotel only as a “tester” plaintiff and had no intent to return. Laufer v. Arpan LLC, 2022 U.S. App. LEXIS 8270 (11th Cir. Mar. 29, 2022), involved a plaintiff with a disability under the Americans with Disabilities Act who acted as a “tester” plaintiff, monitoring places of public accommodation and their websites for compliance with the ADA. In fact, she had filed approximately 50 ADA cases in Florida and hundreds across the country.

In this case, the plaintiff had alleged that a hotel’s website violated an ADA regulation requiring hotels to “[i]dentify and describe accessible features in the hotels and guest rooms offered through [their] reservations service[s] 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.” 28 C.F.R. § 36.302(e)(1)(ii). The plaintiff asserted that the hotel’s website and its listings on third-party sites did not mention or provide the option of booking accessible rooms and did not provide information about rooms’ accessibility features. As a result of the alleged discrimination, the plaintiff claimed that she suffered and continues to suffer “frustration and humiliation” and that the websites contribute to her “sense of isolation and segregation.” She claimed an intent to view the websites in the future but admitted that she had no intention to visit the defendant hotel, or the area in which it is located, in the future.

The district court denied the plaintiff’s motion for summary judgment and dismissed the case for lack of jurisdiction, finding that the plaintiff lacked standing because she had not suffered a concrete injury. Because she never intended to return to the hotel, the information omitted from the websites would be useless to her, and she could not show any cognizable stigmatic harm. Further, the district court concluded that her harm wasn’t sufficiently particularized because any harm that she experienced was the same harm every other website visitor would suffer. The plaintiff appealed.

On appeal, the Eleventh Circuit considered whether the plaintiff suffered a concrete intangible injury sufficient for Article III standing, which the court answered in the affirmative. Writing for the court, Judge Newsom laid out the framework, as stated by the United States Supreme Court, to determine an intangible harm’s concreteness: The court assesses whether the alleged injury bears “a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016). “[B]ecause Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.” Spokeo, 578 U.S. at 341; see also TransUnion, 141 S. Ct. at 2204–05. But regardless of Congress’s judgment, a reviewing court must “independently decide whether a plaintiff has suffered a concrete harm under Article III.” TransUnion, 141 S. Ct. at 2205.

The court noted at the outset that it was unclear whether the district court had held that the plaintiff’s allegations were inadequate on their face, or as a factual matter, to establish standing. It therefore assumed, without deciding, that the district court only held that the plaintiff’s allegations were inadequate on their face and that, on remand, the district court could inquire into the jurisdictional facts.

In holding that the plaintiff had alleged standing, the court explained that the plaintiff’s alleged injury—her inability to access certain information on a hotel’s website and her resulting emotional harm—did not bear a “close relationship” to any traditional common-law cause of action. Nevertheless, the court held that the plaintiff alleged a concrete intangible injury because both Eleventh Circuit and Supreme Court precedent establish that an emotional injury resulting from illegal discrimination is sufficient to constitute a concrete injury. Because the plaintiff claimed that she not only suffered illegal discrimination but also that the discrimination resulted in “frustration and humiliation” and a “sense of isolation and segregation,” she adequately pleaded—facially at leaser—a concrete stigmatic injury. And because the plaintiff’s emotional injury was her own emotional injury, it affected her in “in a personal and individual way” and was therefore sufficiently particularized.

The court vacated and remanded the case, noting that the district court still needed to determine whether, as a factual matter, the plaintiff had shown that she suffered the requisite frustration and humiliation as a result of viewing the hotel’s websites.

Judge Jordan wrote a concurring opinion to add that he also believed the plaintiff had standing under an “informational injury” theory—i.e., based on the informational injury she suffered due to the websites not having the information required by the ADA regulations—pursuant to Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In doing so, Judge Jordan distinguished similar cases in the Fifth, Tenth, and Second Circuits, two of which were brought by the same plaintiff as in the instant case. The majority opinion had declined to decide this issue since it had concluded that the plaintiff had standing under a “stigmatic” injury theory.

Judge Newsom also authored a concurrence, in which he explained that this case demonstrated that the Supreme Court’s current “history-and-judgment-of-Congress” standard for assessing Article III “injury in fact,” as set out in Spokeo and TransUnion, caused substantial confusion because it could not comfortably accommodate the kind of “stigmatic” injury that the plaintiff’s case involved. He further found that this tester case was an illustration of a suit that satisfied all Article III requirements but nonetheless should not be permitted to survive because it violated the exercise of executive power in violation of Article II.

Posted by Kamryn Deegan.

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