Amicus Curiae Brief — Acheson Hotels, LLC, Petitioner v. Deborah Laufer
Supreme Court briefDec 8, 2022
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No. 22-429
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------ACHESON HOTELS, LLC,
Petitioner,
v.
DEBORAH LAUFER,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The First Circuit
---------------------------------♦--------------------------------BRIEF AMICUS CURIAE ON BEHALF OF
DRI CENTER FOR LAW AND PUBLIC POLICY
IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------SARAH ELIZABETH SPENCER
CHRISTENSEN & JENSEN, P.C.
257 East 200 South, Suite 1100
Salt Lake City, Utah 84111
Sarah.Spencer@chrisjen.com
801-323-5000
DRI CENTER FOR LAW AND PUBLIC POLICY
222 South Riverside Plaza, Suite 1870
Chicago, Illinois 60606
312-698-6210
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................
i
TABLE OF AUTHORITIES .................................
ii
INTEREST OF AMICUS CURIAE ......................
1
INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................
2
ARGUMENT ........................................................
7
I.
This Court should grant certiorari to resolve the circuit split, to correct the First
Circuit’s erroneous holding, and to prevent unprecedented and improper expansion of the injury-in-fact requirement .......
7
a. The First Circuit incorrectly held that
Ms. Laufer has standing ...................... 10
b. The First Circuit’s holding could adversely affect small businesses, domestic and international travel, and
federal court judicial economy ............ 18
i.
Harm to businesses caused by unwarranted litigation ...................... 19
ii. Harm to domestic and international
travelers ......................................... 22
iii. Opening the litigation floodgates
and judicial economy ..................... 23
CONCLUSION..................................................... 24
ii
TABLE OF AUTHORITIES
Page
CASES
Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82
L. Ed. 2d 556 (1984) .......................................... 13, 23
Burger King Corp. v. Lumbermens Mut. Cas. Co.,
410 F.Supp.2d 1249 (S.D. Fla. June 30, 2005) ........22
De Laurentiis v. Haig, 528 F. Supp. 601 (E.D. Pa.
1981) ........................................................................14
Doherty v. DOJ, 596 F. Supp. 423 (S.D.N.Y.
1984) ........................................................................14
Essex Ins. Co. v. Night & Day Mgmt., LLC, 536
F.Supp.2d 53 (D. D.C. Feb. 22, 2008).......................22
Federal Election Comm’n v. Akins, 524 U.S. 11,
118 S. Ct. 1777, 141 L. Ed. 2d 10 (1998) ...................3
Fla. Paraplegic Ass’n, Inc. v. Miccosukee Tribe
of Indians of Fla., 166 F.3d 1126 (11th Cir.
1999) ........................................................................14
Havens Realty Corp. v. Coleman, 455 U.S. 363,
102 S. Ct. 1114, 71 L. Ed. 2d 214 (1982) ......... passim
Heckler v. Mathews, 465 U.S. 728, 104 S. Ct.
1387, 79 L. Ed. 2d 646 (1984) .................................13
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112
S. Ct. 2130, 119 L. Ed. 2d 351 (1992) ......................10
Mark v. Sunshine Plaza, Inc., Civil Action No.
16-455, 2016 WL 6876645 (E.D. La. Nov. 22,
2016) ........................................................................21
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130,
102 S. Ct. 894, 71 L. Ed. 2d 21 (1982) .....................14
iii
TABLE OF AUTHORITIES – Continued
Page
Nat’l Archives & Records Admin. v. Favish, 541
U.S. 157, 124 S. Ct. 1570, 158 L. Ed. 2d 319
(2004) .......................................................................14
Public Citizen v. Department of Justice, 491 U.S.
440, 109 S. Ct. 2558, 105 L. Ed. 2d 377 (1989) ... 3, 16
Rowland v. California Men’s Colony, Unit II
Men’s Advisory Council, 506 U.S. 194, 113
S. Ct. 716, 121 L. Ed. 2d 656 (1993) .......................21
Spector v. Norwegian Cruise Line Ltd., 545 U.S.
119, 125 S. Ct. 2169, 162 L. Ed. 2d 97 (2005) ........13
Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct.
1540, 194 L. Ed. 2d 635 (2016) ........... 3, 4, 10, 15, 16
TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
210 L. Ed. 2d 568 (2021) ................................. passim
Trichell v. Midland Credit Mgmt., Inc., 964 F.3d
990 (11th Cir. 2020) .................................................15
United States v. SCRAP, 412 U.S. 669, 93 S. Ct.
2405, 37 L. Ed. 2d 254 (1973) .................................23
STATUTES, RULES AND REGULATIONS
13 CFR § 121.103........................................................19
13 CFR § 121.301........................................................19
28 CFR § 36.302............................................................7
28 CFR § 36.302(a) .......................................................8
28 CFR § 36.302(e)(1) ...................................................8
42 U.S.C. § 3604 ..........................................................11
iv
TABLE OF AUTHORITIES – Continued
Page
CARES Act ..................................................................19
FED. R. CIV. P. 54 ........................................................21
FED. R. CIV. P. 69 ........................................................21
Federal Advisory Committee Act .................................4
Federal Election Campaign Act of 1971 ......................3
OTHER AUTHORITIES
Am. Hotel & Lodg. Ass’n, 2022 Midyear State of
the Hotel Industry Report, available at https://
www.ahla.com/sites/default/files/AHLA%20
Midyear%20SOTI%20Report%202022.pdf ............19
Amanda Robert, Pro bono work increased during the COVID-19 pandemic, reports show,
American Bar Association (Oct. 29, 2021),
available at https://www.abajournal.com/news/
article/reports-show-pro-bono-work-increasedduring-covid-19-pandemic ......................................21
Catherine A. Okoro, et al., Prevalence of Disabilities and Health Care Access by Disability Status and Type Among Adults—United
States, 2016, MMWR MORB. MORTAL. WKLY.
REP. 2018; 67:882–887, available at https://www.
cdc.gov/mmwr/volumes/67/wr/mm6732a3.htm .......23
v
TABLE OF AUTHORITIES – Continued
Page
Centers for Disease Control and Prevention, National Center on Birth Defects and Developmental Disabilities, Division of Human
Development and Disability, Data for the
United States, District of Columbia, and U.S.
Territories for 2020 regarding disability status and types among adults 18 years of age or
older, available at https://dhds.cdc.gov ...................23
Deloitte, 2019 US Travel and Hospitality Outlook, available at https://www2.deloitte.com/
content/dam/Deloitte/us/Documents/consumerbusiness/us-consumer-2019-us-travel-andhospitality-outlook.pdf ............................................18
Disability Funders Network, Disability Stats
and Facts, available at https://www.disability
funders.org/disability-stats-and-facts ....................23
Elaine Simon, Research breaks down COVID19’s impact on hotels, travel plans (Apr. 24,
2020), available at https://www.hotelmanagement.
net/own/studies-break-down-covid-19-s-impacthotels-travel-plans ....................................................22
Federal Register, Nondiscrimination on the
Basis of Disability; Notice of Withdrawal of
Four Previously Announced Rulemaking
Actions (Dec. 26, 2017), available at https://
www.federalregister.gov/documents/2017/12/26/
2017-27510/nondiscrimination-on-the-basis-ofdisability-notice-of-withdrawal-of-four-previouslyannounced ...............................................................20
vi
TABLE OF AUTHORITIES – Continued
Page
How States Are Using Limited Licensed Legal
Paraprofessionals to Address the Access to
Justice Gap, American Bar Association Standing Committee on Paralegals (Sept. 2, 2022),
available at https://www.americanbar.org/
groups/paralegals/blog/how-states-are-usingnon-lawyers-to-address-the-access-to-justicegap/ ..........................................................................20
Jennifer F. Helgeson, et al., Natural hazards
compound COVID-19 impacts on small businesses disproportionately for historically underrepresented group operators, 72 INT. J. OF
DISASTER RISK REDUCTION 102845 (Apr. 1,
2022), available at https://www.sciencedirect.
com/science/article/pii/S2212420922000644 ..........19
Michele Coscia, Frank M.H. Neffke & Ricardo
Hausmann, Knowledge diffusion in the network of international business travel, 4 NAT.
HUM. BEHAV. 1011 (2020), available at https://
www.nature.com/articles/s41562-020-0922-x.........22
Minh Vu, Kristina Launey, and Susan Ryan,
2022 ADA Title III Mid-Year Federal Lawsuit Filings Drop 22% Compared to 2021,
SEYFARTH (July 12, 2022), available at
https://www.adatitleiii.com/2022/07/2022-adatitle-iii-mid-year-federal-lawsuit-filings-drop22-compared-to-2021/..............................................20
vii
TABLE OF AUTHORITIES – Continued
Page
Minh Vu, Kristina Launey, and Susan Ryan,
ADA Title III Federal Lawsuit Filings Hit an
All Time High, SEYFARTH (Feb. 17, 2022),
available at https://www.adatitleiii.com/2022/
02/ada-title-iii-federal-lawsuit-filings-hit-anall-time-high/ ..................................................... 19, 20
Oxford Economics, Economic Impact of the
US Hotel Industry, available at https://www.
ahla.com/sites/default/files/oxford2019.pdf ............18
U.S. Bureau of Economic Analysis, Gross Domestic Product: Accommodation (NAICS 721)
in the United States ................................................18
U.S. Bureau of Labor Statistics, Industries at a
Glance, Accommodation: NAICS 721 (workforce statistics), available at https://www.bls.
gov/iag/tgs/iag721.htm ............................................18
U.S. Bureau of Labor Statistics, Quarterly Census of Employment and Wages, preliminary
2022 data, available at https://data.bls.gov/cew/
apps/table_maker/v4/table_maker.htm#type=1&
year=2022&qtr=1&own=5&ind=721&supp=0 ..........18
U.S. Travel Ass’n, Spending Travel Forecast, Fall
2021, available at https://www.ustravel.org/
system/files/media_root/document/Research_
Travel-Forecast_Summary-Table.pdf .....................19
1
INTEREST OF AMICUS CURIAE1
The DRI Center for Law and Public Policy (the
“Center”) is the public policy and advocacy voice of
DRI. DRI is an international organization of approximately 13,000 attorneys who represent businesses and
defend parties in civil litigation. The Center addresses
issues that are germane to defense attorneys and their
clients. The Center participates as an amicus curiae in
the Supreme Court, the federal courts of appeals, and
state appellate courts, in an ongoing effort to make the
civil justice system more fair, more consistent, and
more efficient.
DRI members regularly represent businesses operating in the accommodation subsector of the American economy as well as other kinds of businesses
subject to Title III of the Americans with Disabilities
Act (“ADA”). The relevant statutes and regulations
should be consistently interpreted in federal court. The
Center and DRI have an interest in ensuring that clients of DRI members are not exposed to needless and
costly tester plaintiff ADA litigation. More broadly, the
Center and DRI have an interest in ensuring that DRI
members and their clients are protected from the probable ripple effects resulting from the unprecedented
1
All parties received notice and consented to the filing of this
brief. No party’s counsel authored this brief in whole or in part.
No party or party’s counsel contributed money that was intended
to fund preparing or submitting this brief. No person other than
amicus curiae, its members, or its counsel contributed money that
was intended to fund preparing or submitting this brief.
2
expansion of the law of standing that is the centerpiece
of this circuit split.
---------------------------------♦---------------------------------
INTRODUCTION AND
SUMMARY OF ARGUMENT
There is a circuit split on the issue of standing for
ADA tester plaintiffs who seek out informational injuries on the internet. This circuit split—where even the
aligned courts disagree on the analysis—has great potential to wreak havoc on society, businesses, and
courts. The ADA safeguards disabled peoples’ fundamental right to be free from discrimination. It should
not be used to undermine the standing doctrine and
Article III of the United States Constitution.
The First Circuit rejected the well-reasoned decisions of its sister circuits as outlined in the certiorari
petition. It also departed from the analysis of the only
other circuit that had reached the same conclusion.
The First Circuit’s decision stands alone. It held that
Respondent Deborah Laufer has standing to sue Petitioner Acheson Hotels, LLC for claimed violations of
Title III of the ADA. Under the court’s analysis, it is
irrelevant that Ms. Laufer had no intentions of traveling to Acheson’s motel and has no actual use for the
information of which she claims to have been unlawfully deprived. It is enough that the ADA and this regulation prohibit disability discrimination, she is
disabled, she wants to vindicate rights of disabled
3
people, and her feelings were hurt by viewing a public
website that allegedly violated the ADA.
The First Circuit acknowledges that its conclusion
is tenuous. But it uses two bootstraps. First, it relies
on an old, distinguishable case that remains good law
but which does not apply here. Second, it glosses over
the core issue: whether the subject regulation is a procedural right so important that a mere violation of
it—without actual harm—is an injury in fact for
standing purposes. This regulation requires a place of
public accommodation to disclose on all room reservation platforms specific information about physical accessibility features in guest rooms. To find that a bare
violation of it confers standing, the lower court was
supposed to evaluate how this rule relates to “both history and the judgment of Congress.”2 The court
acknowledged the requirement to consider such questions but then it conducted no meaningful analysis. Instead, it simply says the regulation is part of the ADA’s
objective to outlaw disability discrimination, therefore
a violation of it standing alone causes an injury in fact.
It cites two cases where this Court has concluded that
standalone violations of other rights granted standing
to the plaintiffs.3 Then, without explaining why this
2
Spokeo, Inc. v. Robins, 578 U.S. 330, 340–41, 136 S. Ct.
1540, 194 L. Ed. 2d 635 (2016).
3
Federal Election Comm’n v. Akins, 524 U.S. 11, 20-25, 118
S. Ct. 1777, 141 L. Ed. 2d 10 (1998) (disclosure of information under Federal Election Campaign Act of 1971 about political committee spending which affected the plaintiffs’ voting rights);
Public Citizen v. Department of Justice, 491 U.S. 440, 449, 109 S.
Ct. 2558, 105 L. Ed. 2d 377 (1989) (disclosure of information
4
administrative regulation resembles the rights at issue in those cases, the court found the same is true
here and that a procedural, non-prejudicial violation of
the regulation is itself an injury under Article III.4
But “a plaintiff does not automatically satisfy the
injury-in-fact requirement whenever a statute grants
a right and purports to authorize a suit to vindicate
it.”5 There must be a particularized and concrete injury.6 There was no such injury here. The conflict
among the circuits on this issue, and the First Circuit’s analysis in particular, could have profound implications for the law and for interested industries,
businesses, and people.
We are in the information age—the digital era. Is
the deprivation of information in today’s day and age,
in fact, more injurious than it was decades ago when
people could not simply “Google it”? When are people
injured, or not injured, when they surf the web intentionally seeking out information they know will upset
them, desiring to become upset? What is the nature of
under the Federal Advisory Committee Act which related to the
appointment of federal judges which affected the plaintiffs’ right
to participate “more effectively in the judicial selection process.”).
4
Pet. App. 19a (“ . . . she had a right to the information that
she alleges Acheson didn’t give her. And the statute makes that
denial of information discrimination against disabled persons and
gives Laufer the right to sue in response. That Laufer had no intent to use the information for anything but a lawsuit doesn’t
change things—she was still injured in precisely the way the statute was designed to protect.”).
5
Id.
6
Spokeo, 578 U.S. at 341.
5
an informational “injury” when the information is useless to the person seeking it? When do procedural, nonharmful violations of administrative regulations requiring public disclosure of information confer standing?
The law must confront these questions. The way to
do so by giving clear guidance. The First Circuit’s opinion does not give clear guidance. It does not abide by
prior mandates of this Court. It does not answer any
broader questions about how to deal with informational injuries in the digital era. Rather, its rendition
of the legal standard creates uncertainty and opens the
proverbial “floodgates” of litigation by encouraging
crusader plaintiffs to sue for ADA violations and by
countenancing courts to conclude that plaintiffs were
injured, thus expanding the law of standing and the
scope of the ADA far beyond this Court’s directives.
This circuit split has the potential to harm the
American economy and particularly small businesses
in the accommodation industry. Such businesses were
severely impacted by the COVID-19 pandemic. Small
businesses sued for claimed ADA violations experience
significant costs, including attorney fees and consequential harm. Businesses will have to fend off litigation brought by plaintiffs who never intended to be
patrons, who have zero real-world use for the information, and who have no actual injury. The judicial
system will have to adjudicate lawsuits brought by persons who affirmatively seek out harm and deliberately
invite “injury” to themselves.
6
This Court should grant certiorari to resolve the
circuit split. It should adopt clear standing rules governing informational injury cases and internet tester
plaintiffs. It should correct the court’s erroneous conclusion that this Court’s precedent in Havens Realty
Corp. v. Coleman and TransUnion v. Ramirez conflict
with one another.7 They do not. Rather than conflicting,
they are in harmony, for a simple reason: the plaintiff
in Havens Realty was a class of one. Ms. Laufer is not.
In Havens Realty, the plaintiff was the focal point. She
was the only person discriminated against and the
only person who had standing to redress it. Ms. Laufer
is not. Ms. Laufer is merely one of many in an amorphous class of all anonymous, disabled internet users
who might have happened to view the challenged website. Those are very different situations.
This Court should adopt a bright line rule and
hold that where a plaintiff claims injury under the subject regulation based on information that is missing
from a digital reservations platform that was accessible to the public at large (such as Acheson’s website), a
prerequisite to Article III standing is that the plaintiff
actually and in good faith intended to book a guest
room when she was deprived of the information, such
that the withheld information is directly related to the
right to be free from disability discrimination. This
rule will harmonize this Court’s pre- and post-digital
era standing precedent. It will fairly balance the public
7
Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102
S. Ct. 1114, 71 L. Ed. 2d 214 (1982); TransUnion LLC v. Ramirez,
141 S. Ct. 2190, 2205, 210 L. Ed. 2d 568 (2021).
7
policy underlying the ADA, the interests of disabled
people, and the interests of places of public accommodation. It will prevent improper expansion of the
standing doctrine. Certiorari should be granted.
---------------------------------♦---------------------------------
ARGUMENT
I.
This Court should grant certiorari to resolve the circuit split, to correct the First
Circuit’s erroneous holding, and to prevent
unprecedented and improper expansion of
the injury-in-fact requirement.
Congress enacted the ADA to outlaw discrimination against disabled people by, among others, places
of public accommodation (hotels, motels, boarding
houses, etc.). Historically, disabled people with physical and mobility-related disabilities have had trouble
reserving hotel rooms due to limited availability of information about physical features in rooms.
To address this problem, 28 CFR § 36.302 was
promulgated in 1991. It requires public accommodations to “make reasonable modifications in policies,
practices, or procedures when the modifications are
necessary to afford goods, services, facilities, privileges,
advantages, or accommodations to individuals with
disabilities unless the public accommodation can
demonstrate that making the modifications would fundamentally alter the nature of the goods, services,
8
facilities, privileges, advantages, or accommodations.”8
Public accommodations offering guest room reservations “by any means” must “[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[.]”9
Ms. Laufer is a self-appointed enforcer of this regulation. The ADA allows private citizens to file lawsuits to redress violations. Ms. Laufer is an advocate
for disabled people’s rights. She is also a serial litigator, having filed more than 600 ADA lawsuits around
the nation. She never intended to stay at Acheson’s
motel or to travel to Maine. Instead, her objective was
to find opportunities to sue. She was intentionally
trolling the internet for non-compliant websites—
hunting for her next federal court case—when she randomly came to the website in question.
Like before, she was undeterred by the findings of
most courts that she does not have standing. She sued,
alleging the website failed to identify and describe the
accessible features of guest rooms at Acheson’s motel.
Acheson challenged her standing. The district court
found she had no standing. She appealed. In an unprecedented expansion of the standing doctrine and
contrary to the well-reasoned decisions of other circuits, the First Circuit reversed and held Ms. Laufer
8
9
28 CFR § 36.302(a) (2022).
Id. § 36.302(e)(1).
9
has Article III standing to sue for Acheson’s claimed
violation of the ADA.
To the First Circuit, it is immaterial that the website was accessible by the world at large. It is irrelevant
that it was a mere coincidence she viewed it. It makes
no difference that she was never going to patronize
Acheson’s motel and that she has no need for the information of which she claims she was deprived. In the
court’s view, the mere “injury” resulting from the
claimed absence of information on the website combined with Ms. Laufer’s assertion of emotional upset is
enough. It does not matter that her alleged injuries
were self-inflicted. Per the First Circuit, Ms. Laufer
sustained a particularized and concrete injury and
thus has standing.
The First Circuit acknowledges that this Court’s
decision in TransUnion v. Ramirez is the most current
standing authority from this Court. It appears to concede that TransUnion dictates a finding of no standing.
But the court avoids this by relying on an older, factually distinguishable case (Havens Realty) and by assuming without analysis that the regulation is the
kind of right which, upon violation, ipso facto confers
standing even absent any other harm. The First Circuit got it wrong. In this case, getting it wrong has consequences that fundamentally challenge the notion of
what Article III standing actually is.
10
a. The First Circuit incorrectly held that
Ms. Laufer has standing.
All plaintiffs in federal court must have Article III
standing. The plaintiff must have suffered an “injury
in fact” that is “fairly traceable to the challenged conduct” and which is “likely to be redressed by a favorable judicial decision.”10 “To establish injury in fact, a
plaintiff must show that he or she suffered an invasion
of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or
hypothetical.”11
The First Circuit held that Ms. Laufer was injured
and that Havens Realty mandates such a conclusion.
The First Circuit says Havens Realty is “right on the
nose for Laufer’s case” and broadly controls tester
plaintiff situations including digital testers like Ms.
Laufer. The First Circuit agrees that Ms. Laufer would
lack standing if TransUnion controls. But the court
says it does not. Havens Realty does control. It involved
testers, whereas TransUnion did not. The only obstacle
to complying with TransUnion, according to the court,
is this Court’s holding in Havens Realty. Thus, the
First Circuit asks this Court to overrule Havens Realty
so that lower courts can abide by TransUnion.12
10
Spokeo, 578 U.S. at 338.
Id. at 339 (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).
12
See Pet. App. 18a (“We can’t overrule prior Supreme Court
cases—that much the Court has made clear. ‘And because overruling Supreme Court precedent is the Court’s job, not ours, we
must follow [precedent] until the Court specifically tells us not
11
11
Havens Realty is good law. It should not be overruled. It does not conflict with TransUnion. Havens Realty involved a class of one. The only person who was
discriminated against was the African American tester
plaintiff. She was the only one with standing to redress
the discrimination. She went to an apartment in person and asked to rent a unit. She was told no. A white
tester plaintiff was told the opposite.13 The African
American plaintiff sued under the Fair Housing Act.14
Despite being a tester who sought out the harm and
whose objective was to stop racial discrimination (not
to rent an apartment), this Court found that she was
injured for standing purposes. It did not matter that
she was a tester. It did not matter that her real intent
was to expose discrimination. She was concretely injured. It was particularized.
The holding in Havens Realty tells us nothing
about the right answer in this case. Had Ms. Laufer
shown up in Maine at Acheson’s motel, bags in hand,
asking the front desk clerk for information about accessible room features and been denied such information, she would clearly have standing per Havens
Realty. That is not this case. A publicly accessible website’s generic omission of information about physical
accessibility features is vastly different from intentionally lying to and discriminating against a particular
person because of disability. The latter is not a mere
to’—even if we think those older decisions are in tension with
newer ones.”).
13
Id. at 15a.
14
42 U.S.C. § 3604 (2022).
12
denial of information. If Ms. Laufer had showed up in
person and been deprived of information, she would
have been the victim of targeted discrimination and
the only person with standing to redress it.
But that is not what happened. Ms. Laufer was
not targeted. Ms. Laufer and other digital tester
plaintiffs who merely view websites and sue are not
analogous to in-person testers. Ms. Laufer is one of
millions of disabled Americans who could have been
viewing that website—all at the same time. The First
Circuit effectively held that everyone who qualifies as
a disabled person under the ADA and who experiences “feelings of frustration, humiliation, and second-class citizenry” after looking at websites omitting
information about guest room features (bathtubs,
bed heights, door widths, etc.), have standing. That is
completely different from Havens Realty where a single person—a class of one—was discriminated against
and directly and specifically targeted because of her
race.
If Ms. Laufer has standing despite being only one
of many unidentifiable, masked plaintiffs, then other
similarly situated plaintiffs do too. If the First Circuit’s
logic holds up, courts could confer mass standing upon
groups of internet tester plaintiffs who are all injured
at once. What if, on the day Ms. Laufer located the website about Acheson’s motel, she emailed a link to the
website to hundreds of other disabled individuals who
then opened the link and felt similarly to her? Would
they all have standing? Under the First Circuit’s erroneous holding, they would sustain particularized and
13
concrete injury. But that cannot be the right answer.
Stigmatic injury inflicted by unconstitutional discrimination “accords a basis for standing only to ‘those persons who are personally denied equal treatment.’ ”15
The same defect applies to the court’s conclusion
that she was injured even though she never planned to
go to Maine and she sought the harm in question—specifically so she could file her next big case. This opens
the door for plaintiffs to claim standing even where
they absolutely could not need the information or could
not patronize the defendant business. This includes if
the plaintiff has a mental disability that does not relate to a physical impediment, such that he has no
need for information about room accessibility. It also
includes plaintiffs who are incarcerated for life, unable
to travel, and who view websites from prison. It includes plaintiffs who cannot take international cruises
but who nonetheless sue foreign-flagged cruise ships
that operate in U.S. waters.16 It includes plaintiffs
suing accommodations on Native American tribal
15
Allen v. Wright, 468 U.S. 737, 755, 104 S. Ct. 3315, 82 L.
Ed. 2d 556 (1984) (emphasis in original) (citing Heckler v.
Mathews, 465 U.S. 728, 739-40, 104 S. Ct. 1387, 79 L. Ed. 2d 646
(1984)).
16
Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 125
S. Ct. 2169, 162 L. Ed. 2d 97 (2005) (reversing the Fifth Circuit’s
decision and holding that Title III applies to foreign-flag ships operating in U.S. waters, except to the extent that particular application of the statute’s requirements invaded a ship’s “internal
affairs.”). DRI Members represent businesses in the cruise ship
and maritime industry.
14
nations.17 Disabled foreign citizen plaintiffs might
have standing.18
Had the First Circuit simply followed TransUnion,
these concerns would have been avoided. TransUnion
is an informational injury case. A federal statute required the defendant credit reporting agency to disclose certain credit report information to consumers.
The plaintiffs alleged the defendant violated the law
by not providing the information. This Court held the
plaintiffs lacked standing. They did not show how their
harm was related to “a harm traditionally recognized
as providing a basis for a lawsuit in American courts.”19
All but one left unopened the envelope which they
claimed should have contained the information. No one
17
See Fla. Paraplegic Ass’n, Inc. v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1131, & fn. 11 (11th Cir. 1999) (tribal
nations may be sued in federal court for Title III ADA violations
if “they consent to it in unequivocal terms” but finding no Congressional intent in the ADA to abrogate their sovereign immunity); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144, 102 S.
Ct. 894, 71 L. Ed. 2d 21 (1982) (“Nonmembers who lawfully enter
tribal lands remain subject to the tribe’s power to exclude them.”).
18
Cf. Nat’l Archives & Records Admin. v. Favish, 541 U.S.
157, 170, 124 S. Ct. 1570, 158 L. Ed. 2d 319 (2004) (“As a general
rule, withholding information under FOIA cannot be predicated
on the identity of the requester.”); id. at 172 (“ . . . if the information is subject to disclosure, it belongs to all.”); Doherty v. DOJ,
596 F. Supp. 423, 428 (S.D.N.Y. 1984) (holding that FOIA rights
extend to a resident alien in the U.S. under a fraudulent passport); see also De Laurentiis v. Haig, 528 F. Supp. 601 (E.D. Pa.
1981) (denying a foreign citizen residing in the country of citizenship the presumption of FOIA disclosure based on a statutory exemption).
19
TransUnion, 141 S. Ct. at 2213.
15
asserted that if they had received “the information in
the proper format,” they would have done something
with it beyond filing a federal lawsuit (such as trying
to fix their credit files). The risk of future harm, if any,
was irrelevant because “the risk of future harm on its
own does not support Article III standing.”20 Further,
there could be no future injury absent proof of “ ‘downstream consequences’ from failing to receive the required information.”21 Where no one argued the
withholding of information made it harder to fix erroneous credit reports, it was not a “downstream consequence.” An “asserted informational injury that causes
no adverse effects cannot satisfy Article III.”22
The First Circuit erroneously applied the “adverse
effects” requirement. The court presumes the correctness of the court’s preferred answer to the question,
“what is an adverse effect?” The court concludes that
the withheld information is the very “adverse effect”
referenced in TransUnion. It notes this Court has in
certain cases afforded standing where a plaintiff suffers a bare violation of a procedural right without any
“additional harm beyond the one Congress has identified.”23 In such a case, a procedural violation causes “an
20
Id.
Id. at 2214 (citing Trichell v. Midland Credit Mgmt., Inc.,
964 F.3d 990, 1004 (11th Cir. 2020)).
22
Id. (citation omitted).
23
Pet. App. 24a (citing Spokeo, 578 U.S. at 342).
21
16
injury in fact because they were denied information
the statute gave them the right to.”24
That’s the crux of it. The court concludes a violation of the subject ADA regulation is the kind of procedural violation that falls within the class of rights
where information withheld from even those who do
not need it (and will not use it) is an injury-in-fact. The
court gets there by relying on the obvious: the ADA
prohibits disability discrimination and this regulation
was promulgated pursuant to the ADA. That’s a
given. However, the First Circuit does not analyze
why this regulation, as applied to Ms. Laufer, is a right
that comes with a presumption of injury. The court
acknowledges Spokeo, Inc. v. Robins requires analysis
of “both history and the judgment of Congress” to decide if a violation causes ipso facto injury.25 But instead
of such analysis, the court pivots back to Havens Realty.
The court’s ipse dixit is not enough. This Court’s
decisions where a statutory or procedural right to information caused particularized, concrete injury are
entirely distinguishable. In such cases, the right to information directly and materially affected the plaintiffs’ fundamental rights. They needed the information
for real-life purposes. Here, by contrast, a narrow, ministerial regulation about room reservation-related disclosures is different, especially where Ms. Laufer never
24
Pet. App. 16a (citing Pub. Citizen v. U.S. Dep’t of Just., 491
U.S. 440, 449, 109 S. Ct. 2558, 105 L. Ed. 2d 377 (1989)).
25
Spokeo, 578 U.S. at 340–41.
17
intended to make a room reservation and was not the
target of discrimination. Of course, the right of disabled people to be free from disability discrimination is
a fundamental right. But a violation of this regulation
does not, all by itself, injure Ms. Laufer’s fundamental
rights where she was an anonymous internet user who
was not the subject of targeted discrimination and did
not need the information to begin with. It was only by
chance she viewed the website while trying to find
ways to injure herself. The withholding of information
about door widths, etc., did not adversely affect Ms.
Laufer where she has no need for it.
At best, if at all, the regulation and the information
required to be provided are tangentially related to her
right to be free from disability discrimination. This is
not enough to confer standing or to give rise to the presumption of standing created by the First Circuit.
Even though the regulation is part of the ADA and it
addresses a problem faced by some disabled people, it
is not a right the harmless violation of which creates a
presumption of standing. A contrary rule would allow
a wide array of plaintiffs to argue they have standing
whenever any right to information is violated, even if
they have no real-world injury and no actual use or
need for the information. That is not the law. Certiorari
should be granted.
18
b. The First Circuit’s holding could adversely affect small businesses, domestic and international travel, and
federal court judicial economy.
There are approximately 5 million guest rooms in
the United States.26 Places of public accommodation
are part of the accommodation subsector of the accommodation and food services sector. This subsector is a
significant part of the American economy. In the first
quarter of 2022, 75,972 private establishments were
operating in the accommodation subsector.27 In 2022,
this industry employed approximately 1.7 million people in the U.S.28 The U.S. gross domestic product associated with the accommodation subsector as of
January 1, 2022, was more than $162 billion.29 This is
down from $206 billion in 2019, when it outperformed
the wider U.S. economy.30
The accommodation subsector was heavily impacted
by the COVID-19 pandemic. Women- and minorityowned small businesses were disproportionately
26
Oxford Economics, Economic Impact of the US Hotel Industry.
27
U.S. Bureau of Labor Statistics, Quarterly Census of Employment and Wages, preliminary 2022 data.
28
U.S. Bureau of Labor Statistics, Industries at a Glance,
Accommodation: NAICS 721 (workforce statistics).
29
U.S. Bureau of Economic Analysis, Gross Domestic Product: Accommodation (NAICS 721) in the United States.
30
Deloitte, 2019 US Travel and Hospitality Outlook, at 2,
6–8.
19
affected.31 Small businesses in this industry were
identified as particularly needing emergency loans
from the federal government.32 Hotel occupancy plummeted to 44% in 2020, far from pre-pandemic rates.33
Occupancy rates still have not reached pre-pandemic
levels.34
i.
Harm to businesses caused by unwarranted litigation.
ADA lawsuits have been proliferating for years. In
2016, for example, 6,601 ADA Title III lawsuits were
filed in federal court, a 37% increase from 2015.35 More
than 70% of these suits were filed in California, Florida, and New York—states which tend to see larger
31
Jennifer F. Helgeson, et al., Natural hazards compound
COVID-19 impacts on small businesses disproportionately for
historically underrepresented group operators, 72 INT. J. OF DISASTER RISK REDUCTION 102845 (Apr. 1, 2022).
32
Under the CARES Act, businesses in this industry that
employed not more than 500 employees per physical location were
eligible to receive PPP loans and normal affiliation rules (13 CFR
§ 121.103 and 13 CFR § 121.301) were suspended, thus allowing
affiliated businesses to receive multiple federal loans. P.L. 116136 Sec. 1102 (Mar. 27, 2020).
33
Am. Hotel & Lodg. Ass’n, 2022 Midyear State of the Hotel Industry Report; U.S. Travel Ass’n, Spending Travel Forecast,
Fall 2021.
34
Id.
35
Minh Vu, Kristina Launey, and Susan Ryan, ADA Title III
Federal Lawsuit Filings Hit an All Time High, SEYFARTH (Feb.
17, 2022).
20
jury verdicts and money judgments.36 As of mid-year
2022, 4,914 lawsuits alleging ADA Title III claims were
filed.37 The petition outlines the for-profit hustle surrounding tester plaintiffs and lawyers looking to make
money by settling ADA cases as quickly as possible.38
In addition to filing more suits, plaintiffs are trying to
broaden the scope of the ADA. Title III ADA lawsuits
alleging violations based on websites have surged
since 2017 when website accessibility rulemaking was
placed on indefinite hold.39
The cost of litigating in federal court is high. Many
states have enacted sweeping changes to law practice
rules, attempting to solve the “access to justice problem” created by the high price of legal services. In
many civil cases, defendants do not have the money to
hire lawyers. States have enacted laws giving paralegals the right to engage in the limited practice of
law.40 Although total pro bono hours by U.S. lawyers
increased during the pandemic, the legal needs of
36
Id.
Minh Vu, Kristina Launey, and Susan Ryan, 2022 ADA
Title III Mid-Year Federal Lawsuit Filings Drop 22% Compared to 2021, SEYFARTH (July 12, 2022).
38
Pet. Br. at 5.
39
See Federal Register, Nondiscrimination on the Basis
of Disability; Notice of Withdrawal of Four Previously Announced Rulemaking Actions (Dec. 26, 2017).
40
See How States Are Using Limited Licensed Legal Paraprofessionals to Address the Access to Justice Gap, American Bar
Association Standing Committee on Paralegals (Sept. 2, 2022).
37
21
persons who depend on pro bono help did too.41 Legal
representation is required, as business entities cannot
appear in federal court pro se.42
It does not strain credulity to believe that a single
ADA lawsuit by a faraway tester plaintiff could financially ruin and bankrupt a small business operating a
place of public accommodation. All it takes is one judgment, one writ of execution, and one writ of garnishment, to force a sale of property and to seize all money
in a bank account. Small businesses face a greater risk
of this outcome. An attorney fee award is easily rendered to judgment and writs of execution are available
shortly thereafter.43
Even with general liability coverage, they still
might have to pay out-of-pocket to defend a Title III
ADA lawsuit. Courts have found that liability insurance does not cover claims under Title III of the
ADA.44 Commercial general liability insurance policies
41
Amanda Robert, Pro bono work increased during the
COVID-19 pandemic, reports show, American Bar Association
(Oct. 29, 2021).
42
Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201–02, 113 S. Ct. 716, 121 L. Ed. 2d
656 (1993) (“It has been the law for the better part of two centuries, for example, that a corporation may appear in federal courts
only through licensed counsel.”) (citations omitted)).
43
See FED. R. CIV. P. 54 and 69.
44
See, e.g., Mark v. Sunshine Plaza, Inc., Civil Action No. 16455, 2016 WL 6876645 at *6 (E.D. La. Nov. 22, 2016) (granting
motion for judgment on the pleadings and finding that ADA Title
III claim did not allege bodily injury, property damage, or an occurrence).
22
commonly include “discrimination exclusions” barring
coverage for claims arising from unlawful discrimination.45
i.
Harm to domestic and international
travelers.
A link between a country’s incoming business
travel and the growth of new and existing industries
has been observed.46 Reduced availability of accommodations could harm domestic and international travel,
and in turn, harm the economy.47 Travelers need accommodations. The American economy needs the innovation associated with international business
travelers.
45
See, e.g., Burger King Corp. v. Lumbermens Mut. Cas. Co.,
410 F.Supp.2d 1249, 1258 (S.D. Fla. June 30, 2005) (denying insured’s claim for indemnification for settlement of discrimination
lawsuit where insurance policy excluded intentional discrimination claims from coverage); Essex Ins. Co. v. Night & Day Mgmt.,
LLC, 536 F.Supp.2d 53, 58 (D. D.C. Feb. 22, 2008) (finding the
insurance policy at issue excluded from coverage “[d]iscrimination charges, of any kind . . . ” (alteration and emphasis in original)).
46
Michele Coscia, Frank M.H. Neffke & Ricardo Hausmann,
Knowledge diffusion in the network of international business
travel, 4 NAT. HUM. BEHAV. 1011–1020 (2020).
47
See Elaine Simon, Research breaks down COVID-19’s
impact on hotels, travel plans (Apr. 24, 2020), (discussing the
broad economic impacts on reduced accommodation availability).
23
iii. Opening the litigation floodgates
and judicial economy.
There are millions of disabled Americans. They
are the largest minority group in the country.48 Around
64 million adults in the United States lived with a disability in 2020.49 That is approximately 24% of the U.S.
population. Under the court’s holding, millions of disabled Americans will have standing to sue for ADAbased informational injuries even if they do not need
and cannot use the information, and even if their
claimed harm is hurt feelings.
If every disabled person in the United States who
has the propensity to experience hurt feelings after
surfing the web—and who is willing to crusade for justice—has Article III standing, the law of standing will
be eviscerated. That is not what this Court’s standing
precedent says. That is not what the Constitutional
Framers intended in drafting Article III. The federal
courts should not be “transform[ed]” into a “vehicle for
the vindication of value interests of concerned bystanders.”50 Certiorari should be granted.
---------------------------------♦--------------------------------48
Disability Funders Network, Disability Stats and Facts.
Centers for Disease Control and Prevention, National Center
on Birth Defects and Developmental Disabilities, Division of Human
Development and Disability, Data for the United States, District of
Columbia, and U.S. Territories for 2020 regarding disability status and types among adults 18 years of age or older; see also,
Catherine A. Okoro, et al., Prevalence of Disabilities and Health
Care Access by Disability Status and Type Among Adults—United
States, 2016, MMWR MORB. MORTAL. WKLY. REP. 2018; 67:882–88.
50
Allen, 468 U.S. at 756 (quoting United States v. SCRAP,
412 U.S. 669, 687, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973)).
49
24
CONCLUSION
Certiorari review is needed to create a bright line
rule regarding tester plaintiff standing for informational injuries. Ms. Laufer lacks standing, as many
courts have correctly held. Where a plaintiff claims informational injury under the subject regulation, and
where the plaintiff deliberately sought out the information on an internet reservations website that is accessible to the public at large, a prerequisite to Article
III standing should be that the plaintiff actually and
in good faith intended to patronize the place of accommodation when she was deprived of information, such
that the deprivation directly affects the right to be free
from disability discrimination. This rule fairly balances the public policy underlying the ADA, the interests of disabled people, and the interests of places of
public accommodation.
Respectfully submitted,
SARAH ELIZABETH SPENCER
CHRISTENSEN & JENSEN, P.C.
257 East 200 South, Suite 1100
Salt Lake City, Utah 84111
Sarah.Spencer@chrisjen.com
801-323-5000
DRI CENTER FOR LAW AND PUBLIC POLICY
222 South Riverside Plaza, Suite 1870
Chicago, Illinois 60606
312-698-6210
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.