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OK for ‘Testers’ to Sue Over ADA Compliance?

Websites should offer ADA info, but a hotel site claimed that a “tester” who didn’t plan to book a room shouldn’t be allowed to sue. A court judge disagreed.

BOSTON – A “tester-plaintiff” had standing to sue for a hotel reservation website’s alleged failure to comply with federal regulations governing accessibility for the disabled, even if she had no plans to actually book a room at the hotel, the 1st U.S. Circuit Court of Appeals has ruled.

Plaintiff Deborah Laufer sued defendant Acheson Hotels for allegedly failing to comply with regulations under the Americans with Disabilities Act (ADA) that require hotels to make information about the property’s accessibility available on any reservation portal.

The plaintiff is disabled with limited mobility, and identifies herself as an ADA “tester” and advocate for the disabled. As a tester, the plaintiff has filed hundreds of similar ADA suits in federal courts across the country.

The defendant hotel moved to dismiss, arguing that the plaintiff lacked standing to bring her suit because she never intended to book a room when she visited the hotel’s website.

U.S. District Court Judge George Z. Singal in Maine agreed and dismissed the case.

Addressing an issue that is dividing the federal circuits, a 1st Circuit panel reversed, reading U.S. Supreme Court precedent as standing for the proposition that the denial of information that a plaintiff is statutorily entitled to have can make for a “concrete injury in fact.”

“The [ADA regulation at issue] recognizes that the public information on accessibility features is necessary to make sure disabled persons are ‘able to reserve hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms,’” wrote Judge O. Rogeriee Thompson for the panel. “Denying Laufer the same ‘efficiency, immediacy, and convenience’ as those not requiring accommodations is exactly the discrimination the regulations are trying to stamp out.”

The 39-page decision is Laufer v. Acheson Hotels, LLC, Lawyers Weekly No. 01-211-22.

Supreme Court review?

Attorney Thomas B. Bacon of Orlando, Florida, represented the plaintiff in her appeal before the 1st Circuit. Bacon also represents Laufer in a number of similar ADA actions around the country.

He said that the panel’s decision falls in line with a well-established history of courts recognizing tester-plaintiff standing.

“Starting from the 1950s, civil rights advocates have been granted standing to sue to eradicate discrimination,” Bacon said. “In [the 1958 U.S. Supreme Court case of] Evers v. Dwyer, the [Black] plaintiff only got on that bus to eradicate discrimination, to encounter it and then file a lawsuit in court to remedy it.”

Bacon makes no apologies for the work of testers such as Laufer.

“Because nobody is entitled to damages, only a very, very limited number of zealous advocates are filing these cases,” he said. “The result is, you have very few people filing a lot of cases, but they make places accessible for everybody else.”

The plaintiff’s attorney in U.S. District Court, Daniel G. Ruggerio of Newton, Massachusetts, said he and his client are waiting to see if the defendant files a petition for rehearing en banc. Ruggerio added that he expects the standing issue to eventually reach the U.S. Supreme Court.

“But my inclination is that this defendant will not be the one to bring it,” Ruggerio added.

He said that the 1st Circuit’s decision is on solid footing, because “the Supreme Court has said that informational injury is an injury.”

The hotel is represented by attorney Sally A. Morris, of Portland, Maine. She said her client is reviewing its options.

“My client is a small business owner, one of many being sued by this particular plaintiff in Maine and other places around the country,” Morris said. “It’s definitely a challenge for [my client] to be faced with this.”

Grace V. B. Garcia, an ADA defense attorney in Boston, echoed that point.

“My concern is that often testers target smaller hotels and businesses,” she said. “For most of my clients when faced with similar situations, when given notice a call or letter telling them that someone can’t get on their website they want to change it because it’s to their benefit.”

According to Garcia, the problem is the ADA’s lack of a notice requirement, and the fact that the costs and attorneys’ fees that plaintiffs demand to settle their lawsuits can put some defendants out of business.

“In terms of hotel reservations and restaurants, I’ve yet to see a case of intentional misinformation or an unwillingness to ensure [the availability of] the correct information so that those with disabilities can have full and equal access,” she said.

Attorney Richard M. Glassman is the director of advocacy at the Disability Law Center in Boston. In an email, Glassman called the 1st Circuit’s decision “well-reasoned and soundly grounded” in the language of both the applicable ADA regulations and the U.S. Supreme Court’s 1982 decision in Havens Realty Corp. v. Coleman.

The tester-plaintiff cometh

According to court records, the plaintiff is a resident of Florida. She has limited mobility and needs a wheelchair or cane to move around. To get around in her wheelchair, she needs passageways of sufficient width and moderate grade. In addition, certain surfaces need to be lower in order for her to reach them, and she requires grab bars in bathrooms to get into and out of her wheelchair.

The defendant operates the Coast Village Inn and Cottages in Wells, a small town on the southern coast of Maine.

The plaintiff claimed the hotel’s website didn’t identify accessible rooms, provide an option for booking accessible rooms, or provide sufficient information for her to determine whether rooms and other features of the hotel met her special needs. According to the plaintiff, she faced the same problem when she visited the inn’s reservation service through 13 third-party websites, including Expedia.com, Hotels.com, and Booking.com.

Under 28 C.F.R. 36.302(e), a “public accommodation” operating a “place of lodging” must “with respect to reservations made by any means [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.”

When a public accommodation discriminates against a disabled person in violation of the ADA, the statute and its governing regulations authorize private individuals to bring enforcement actions in federal court.

Pursuant to that authority, the plaintiff sued the defendant in Maine federal court for violations of 28 C.F.R. 36.302(e).

Thompson noted some confusion in the record as to whether the plaintiff ever had any intent to use the hotel’s services. In a footnote on page 12 of the 1st Circuit opinion, Thompson observed that the plaintiff had previously filed an amended complaint in the trial court alleging her intent to travel to Maine. On appeal, however, the judge said that Laufer disclaimed any such intent.

Injury in fact

Thompson said there was a circuit split on the issue of whether a tester-plaintiff who searches the internet for non-compliant websites has standing to sue under the ADA, even if she has no plans to book a room at the defendant’s hotel.

In a 2022 case in which Laufer was the plaintiff, Laufer v. Arpan LLC, the 11th Circuit concluded that there was standing.

However, Thompson noted that a contrary conclusion had been reached by the 2nd Circuit in a 2022 case, Harty v. W. Point Realty, Inc., the 10th Circuit in a 2022 decision in Laufer v. Looper, and the 5th Circuit in a 2021 case, Laufer v. Mann Hospitality, Inc.

Thompson wrote that the issue in the case boiled down to whether a plaintiff in Laufer’s position suffered a “concrete and particularized injury in fact” necessary for standing to sue under Article III of the U.S. Constitution. The judge pointed to the U.S. Supreme Court’s 2018 decision in Spokeo, Inc. v. Robins for the guiding standard.

In Spokeo, the Supreme Court instructed that, to have standing, a plaintiff must show that she: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

Here, the defendant argued that the plaintiff’s tester status plus her lack of intent to act on information provided by the website made the information irrelevant and therefore, not a concrete injury for standing purposes.

But Thompson found that argument was foreclosed by the Supreme Court’s 1982 decision in Havens Realty Corp. v. Coleman. That case involved the use of testers to determine whether an apartment owner violated the Fair Housing Act by falsely representing the unavailability of units because of the plaintiff tester’s race.

“Importantly, this Black plaintiff [in Havens Realty] was a tester, too she had no intent of ever renting an apartment from the defendant and went posing as a renter only to figure out if the defendant was violating the law,” Thompson wrote. “Yet the Supreme Court said that she still had standing.”

Rejecting the defendant’s argument that dicta in Spokeo and TransUnion marked a change of course from Havens Realty, Thompson concluded that Laufer had standing.

“[I]f the Black tester plaintiff had standing in Havens Realty where the statute gave her a right to truthful information, which she was denied, then Havens Realty would mean that Laufer, too, has standing because she was denied information to which she has a legal entitlement,” Thompson wrote.

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