Amicus Curiae Brief — Acheson Hotels, LLC, Petitioner v. Deborah Laufer

Supreme Court briefJun 12, 2023

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No. 22-429

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------ACHESON HOTELS, LLC,

Petitioner,

DEBORAH LAUFER,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

---------------------------------♦--------------------------------BRIEF OF ATLANTIC LEGAL FOUNDATION &

DRI CENTER FOR LAW AND PUBLIC POLICY AS

AMICI CURIAE IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------SARAH ELIZABETH SPENCER

CHRISTENSEN & JENSEN, P.C.

257 East 200 South,

Ste. 1100

Salt Lake City, UT 84111

(801) 323-5000

sarah.spencer@chrisjen.com

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................iii

INTEREST OF THE AMICI CURIAE........................ 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT .............................................................. 10

Conferring Article III Standing On “Informational

Injury” Plaintiffs Who Troll the Internet For

Technical Violations of Federal Law But Suffer No

Actual Harm Would Establish a Dangerous

Precedent Leading To a Flood of Unwarranted

Litigation ................................................................... 10

A. All plaintiffs must have suffered particularized

and concrete harm as a prerequisite to standing 10

B. The “concrete harm” requirement is grounded

in separation of powers ........................................ 12

C. Respondent’s allegation that she felt stigmatized

by the withholding of information she did not

need is far from enough to afford Article III

standing ............................................................... 14

1. No particularized injury ............................... 15

2. No concrete harm .......................................... 15

3. Emotional distress is insufficient ................ 18

D. Conferring standing based on mere violations of

informational laws would lead to novel and

unwarranted litigation........................................ 20

1. Along with the ADA, numerous federal

statutes containing private enforcement rights

require informational disclosures .................. 21

2. Private suits alleging “digital” injuries could

skyrocket in the near future ........................... 23

3. The “slippery slope” is real ............................. 28

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

CASES

Allen v. Wright, 468 U.S. 737 (1984)..... 5, 8, 14, 19, 20

Cummings v. Premier Rehab Keller, PLLC, 142 S.

Ct. 1562 (2022) ...................................................... 20

Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557 (7th

Cir. 1999) .............................................................. 24

Gonzalez v. Google, No. 21–1333 (May 18, 2023) .... 27

Hagy v. Demers & Adams, 882 F.3d 616 (6th Cir.

2018) .................................................................. 5, 13

Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982) ......................................................... 17, 18, 19

Heckler v. Mathews, 465 U.S. 728 (1984) ............. 8, 15

Jeffries v. Volume Services America, Inc., 928 F.3d

1059 (D.C. Cir. 2019) ............................................. 23

Kamal v. J. Crew Group, Inc., 918 F.3d 102 (3d

Cir. 2019) ............................................................... 23

Katz v. Donna Karan Co. Store, LLC, 872 F.3d 114

(2d Cir. 2017) ......................................................... 23

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

.......................................................................... 11, 15

Marbury v. Madison, 5 U.S. 137 (1803) .................... 12

Muransky v. Godiva Chocolatier, Inc., 979 F.3d

917 (11th Cir. 2020) .............................................. 23

National Association of the Deaf v. Harvard

University, 377 F. Supp. 3d 49 (D. Mass. 2019) ... 25

National Fair Housing Alliance v. Facebook, Inc.,

No. 1:18-cv-02689 (S.D.N.Y. Feb. 6, 2019) .......... 25

Noble v. Nev. Checker Cab Corp., 726 F. App’x 582

(9th Cir. 2018) ....................................................... 23

Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t

of Transp., 879 F.3d 339 (D.C. Cir. 2018) ............. 7

Parker v. Metro Life Ins. Co., 121 F.3d 1006 (6th

Cir. 1997) ............................................................... 24

Raines v. Byrd, 521 U.S. 811 (1997) ........................... 3

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) .................

................................................ 3, 4, 11, 12, 15, 16, 23

Thomas v. Toms King (Ohio), LLC, 997 F.3d 629

(6th Cir. 2021) ....................................................... 23

TransUnion v. Ramirez, 141 S. Ct. 2190 (2021)...........

............ 3, 4, 5, 7, 8, 11, 12, 13, 15, 16, 17, 18, 23, 30

Trichell v. Midland Credit Mgmt., Inc., 964 F.3d

990 (11th Cir. 2020) ............................................. 13

Twitter, Inc. v. Taamneh, No. 21–1496 (May 18,

2023) ...................................................................... 26

Utah Physicians For a Healthy Environment v.

Diesel Power Gear, LLC, 21 F.4th 1229 (10th

Cir. 2021) ............................................................... 22

Van Buren v. United States, 141 S.Ct. 1648 (2021)

.......................................................................... 26, 30

Warth v. Seldin, 422 U.S. 490 (1975)......................... 5

Weyer v. Twentieth Century Fox Film Corp., 198

F.3d 1104 (9th Cir. 2000) ..................................... 24

CONSTITUTION, STATUTES, AND REGULATIONS

U.S. Const., Art. III, § 2 ....................................... 3, 10

5 U.S.C. § 552 ............................................................ 22

15 U.S.C. § 1601 ........................................................ 22

15 U.S.C. § 1681c ....................................................... 23

15 U.S.C. § 1707 ........................................................ 22

18 U.S.C. § 1030 ........................................................ 26

29 U.S.C. § 794 .......................................................... 25

42 U.S.C. § 12188 ............................................ 7, 14, 17

42 U.S.C. § 7604 ........................................................ 22

28 C.F.R. § 36.302 .................................................. 6, 15

17 C.F.R. § 230.481 .................................................... 22

OTHER AUTHORITIES

Annie Lee, Algorithmic Auditing and Competition

Under the CFAA: The Revocation Paradigm of

Interpreting Access and Authorization, 33

Berkeley Tech. L.J. 1307 (2018) ........................... 30

Antonin Scalia, The Doctrine of Standing as an

Essential Element of the Separation of Powers,

17 Suffolk U. L. Rev. 881 (1983) ............................. 6

John Roberts, Article III Limits on Statutory

Standing, 42 Duke L.J. 1219 (1993) ..................... 13

U.S. Dept. of Health and Human Services, Office

for

Civil

Rights,

Guidance

Nondiscrimination in Telehealth: Federal

Protections to Ensure Accessibility to People

with Disabilities and Limited English

Proficient Persons, July 29, 2022 .......................... 27

Wilson C. Freeman, Cong. Rsch. Serv., LSB10303,

Enforcing Federal Privacy Law-Constitutional

Limitations on Private Rights of Action (2019) .... 30

INTEREST OF THE AMICI CURIAE 1

Established in 1977, the Atlantic Legal Foundation

(ALF) is a national, nonprofit, nonpartisan, public

interest law firm whose mission is to advance the rule

of law and civil justice by advocating for individual

liberty, free enterprise, property rights, limited and

responsible government, sound science in judicial and

regulatory proceedings, and effective education,

including parental rights and school choice. With the

benefit of guidance from the distinguished legal

scholars, corporate legal officers, private practitioners,

business executives, and prominent scientists who

serve on its Board of Directors and Advisory Council,

the Foundation pursues its mission by participating as

amicus curiae in carefully selected appeals before the

Supreme Court, federal courts of appeals, and state

supreme courts. See atlanticlegal.org.

The DRI Center for Law and Public Policy is the

public policy think tank and advocacy voice of DRI, a

nonprofit organization composed of approximately

14,000 attorneys who represent businesses in civil

litigation. DRI’s mission includes enhancing the

skills, effectiveness, and professionalism of defense

lawyers; promoting appreciation of the role of defense

lawyers in the civil justice system; and anticipating

1 No counsel for a party authored this brief in whole or part, and

no party or counsel other than amici curiae and their counsel

made a monetary contribution intended to fund preparation or

submission of this brief.

and addressing substantive and procedural issues

germane to defense lawyers and the fairness of the

civil justice system. The Center participates as

amicus curiae in this Court, federal courts of appeals,

and state appellate courts in an ongoing effort to

promote fairness, consistency, and efficiency in the

civil justice system. See dri.org.

***

Amici curiae have a direct interest in the question

presented—whether a self-appointed “tester” who

trolls the Internet for small hotels whose websites

allegedly lack adequate accessibility information has

Article III standing to pursue litigation under the

Americans with Disabilities Act (ADA) for disabilitybased discrimination. This issue implicates ALF’s

mission of advocating for civil justice and free

enterprise, and the professional interests of DRI’s

members, who advise and represent many businesses

subject to the ADA.

Even beyond the ADA and serial testers such as

the litigious Respondent here, the Article III standing

issue necessarily implicates the cottage industry of

filing Internet-based “informational injury” suits.

Unlike traditional failure-to-warn litigation for

personal injury or wrongful death, the potential

gravamina of informational injury claims against

virtually any business that has a website are as

expansive as the World Wide Web. Amici have an

interest in quashing frivolous or meritless litigation

calculated by contingency-fee lawyers to exact costly

and unwarranted settlements from unsuspecting

businesses that lack the resources to litigate. Such

suits abuse, rather than promote, the nation’s civil

justice system.

SUMMARY OF ARGUMENT

This case presents a fundamental question

implicating the separation of powers and federal

judicial authority: When does a plaintiff suffer a

“cognizable intangible injury” by being denied

information required to be disclosed by federal law?

Relatedly, it also asks a groundbreaking question

affecting the next frontier of online enforcement of

constitutional and federal statutory rights: When are

informational injuries on the Internet justiciable

under Article III of the Constitution?

1. Article III “confines the federal judicial power to

the resolution of ‘Cases’ and ‘Controversies.’”

TransUnion v. Ramirez, 141 S. Ct. 2190, 2203 (2021)

(citing U.S. Const., Art. III, § 2, cl. 1). “For there to

be a case or controversy under Article III, the plaintiff

must have a ‘personal stake’ in the case—in other

words, standing.” Id. (quoting Raines v. Byrd, 521

U.S. 811, 820 (1997)).

To have standing, all plaintiffs must have suffered

a particularized, concrete injury. Id.; see also Spokeo,

Inc. v. Robins, 578 U.S. 330, 337-38 (2016). Some

injuries are well-accepted as particularized and

concrete, such as “[p]hysical or monetary” harms. Id.

But a bare violation of federal law, divorced from any

separate harm, is only sometimes—not always—

enough to confer standing. This Court “reject[s] the

proposition that ‘a plaintiff automatically satisfies the

injury-in-fact requirement whenever a statute grants

a person a statutory right and purports to authorize

that person to sue to vindicate that right.’”

TransUnion, 141 S. Ct. at 2205 (quoting Spokeo, 578

U.S. at 341). Simply put, “[a]n injury in law is not an

injury in fact.” TransUnion, 141 S. Ct. at 2205.

To be “concrete” and thus justiciable in federal

court, intangible injuries must have “a close

relationship to a harm that has traditionally been

regarded as providing a basis for a lawsuit in English

or American courts.” Spokeo, 578 U.S. at 341. In other

words, there must be “a close historical or common-law

analogue.” TransUnion, 141 S. Ct. at 2204.

TransUnion observes that intangible harms

remedied at common law include “reputational harms,

disclosure of private information, and intrusion upon

seclusion.” Id. Without a historical, common-law

remedy for the claimed intangible harm, the plaintiff

lacks standing to sue in federal court. Id.

Standing—and the concrete harm requirement—

are “essential to the Constitution’s separation of

powers.” Id. at 2207. Standing “defines with respect

to the Judicial Branch the idea of separation of powers

on which the Federal Government is founded.” Allen

v. Wright, 468 U.S. 737, 750 (1984). Standing

requirements are “‘founded in concern about the

proper—and properly limited—role of the courts in a

democratic society.’” Id. (quoting Warth v. Seldin, 422

U.S. 490, 498 (1975)). They are “fundamental limits

on federal judicial power in our system of

government.” Id.

These separation of powers principles dictate that

Congress is powerless to enlarge the constitutional

meaning of an Article III injury. Congress cannot

authorize lawsuits seeking to remedy intangible

harms unless such harms are particularized and

concrete. “[E]ven though ‘Congress may elevate

harms that exist in the real world before Congress

recognized them to actionable legal status, it may not

simply enact an injury into existence, using its

lawmaking power to transform something that is not

remotely harmful into something that is.’”

TransUnion, 141 S. Ct. at 2205 (quoting Hagy v.

Demers & Adams, 882 F.3d 616, 622 (6th Cir. 2018)).

And this Court—not Congress—has the final say

on whether alleged harm is constitutionally sufficient.

“Congress’s creation of a statutory prohibition or

obligation and a cause of action does not relieve courts

of their responsibility to independently decide

whether a plaintiff has suffered a concrete harm under

Article III any more than . . . Congress’s enactment of

a law regulating speech relieves courts of their

responsibility to independently decide whether the

law violates the First Amendment.” Id.

In short, all plaintiffs must have a constitutionally

sufficient answer when asked, “‘What’s it to you?’” Id.

(quoting Antonin Scalia, The Doctrine of Standing as

an Essential Element of the Separation of Powers, 17

Suffolk U. L. Rev. 881, 882 (1983)).

Respondent claims to have suffered an

informational injury by being deprived of information

required to be disclosed by a federal regulation

pertaining to hotel reservations that was promulgated

under the ADA.

It provides that 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.” 28 C.F.R. § 36.302(e)(1)(ii).

Respondent concedes that she never needed the

information required to be disclosed by this

regulation, as she was not trying to reserve a hotel

room. Rather, she wanted to find her next federal

court case. She was searching the Internet for

websites which (she hoped) violated the regulation at

issue. It was merely randomly that she found

Petitioner’s website while trying to “injure” herself.

She had no need for the information to begin with;

thus withholding it was not a particularized injury.

3. Nor is Respondent’s alleged intangible harm

concrete. Before the enactment of the ADA, which

authorized promulgation of the regulation at issue,

American and English common law afforded no

remedy for disabled individuals who were denied

specific information about guest rooms in places of

public accommodation. The regulation at issue has no

historical equivalent to the precedents cited in

TransUnion for intangible harms remedied at

common law, such as invasions of privacy,

reputational harms, intrusions upon seclusion, etc. As

in TransUnion, “‘the mere existence of inaccurate

information’” has ‘no historical or common-law

analog.’” 141 S. Ct. at 2209 (quoting Owner-Operator

Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 879 F.3d

339, 344–45 (D.C. Cir. 2018)).

The First Circuit nonetheless concluded that

Petitioner’s alleged withholding of this information

from Respondent was itself unlawful discrimination.

According

the

First

Circuit,

unlawful

discrimination

coupled

with

allegations

stigmatization and emotional distress (as Respondent

claims here) are enough to show a concrete injury.

But the ADA does not afford private enforcement

plaintiffs any damages remedy for emotional distress.

Respondent’s only remedies are injunctive relief and

attorney fees. See 42 U.S.C. § 12188(a)(1) (Availability

of remedies and procedures). Because Congress has

determined not to remedy this type of injury under the

ADA, it would contravene separation of powers to use

it to afford Respondent Article III standing.

Additionally, the “stigmatic injury, or denigration,

suffered by all members” of a protected group because

of unlawful discrimination does not afford standing—

instead, to be actually injured, plaintiffs still must be

“‘personally denied equal treatment’ by the challenged

discriminatory conduct.” Allen, 468 U.S. at 755

(quoting Heckler v. Mathews, 465 U.S. 728, 739-40

(1984)). That is the rule even though “this sort of

noneconomic injury is one of the most serious

consequences of discriminat[ion].” Id. Conferring

standing on Respondent would violate the separation

of powers for the same reasons as in TransUnion.

4. Any conclusion to the contrary would have

dangerous implications for the future—a future where

many federal statutes requiring disclosures of

information in tandem with private rights of action

could be enforced by plaintiffs asserting Internetbased injury.

For example, this case arises under the ADA—and

a critical question about whether and how the ADA

applies on the Internet remains starkly unresolved:

Are Internet-only business or government websites

places of public accommodation that must be

accessible to people with disabilities? If they are—and

if tester plaintiffs like Respondent have standing—

will the ADA-based serial litigation plaguing physical

businesses take over the digital realm?

And even though this case arises under the ADA,

its ramifications would be much broader if Respondent

is afforded standing. Federal statutory rights are

already being exercised, violated, and enforced on the

Internet, and that will only continue as more facets of

society move online. Major industries have been

successfully sued by private plaintiffs alleging online

discriminatory practices in violation of federal law.

And more plaintiffs are asserting harm by acts

occurring on the Internet and other digital

platforms—like the plaintiffs in cases recently decided

by this Court who alleged online businesses were

liable for terrorist attacks ostensibly done because of

computer algorithms delivering radicalizing content.

So too are more plaintiffs asserting intangible,

informational harms, including claims under the Fair

and Accurate Credit Transaction Act, where plaintiffs

allege “injury” after receiving credit card receipts with

too many credit card numbers printed on them. Such

cases rest on allegations of presumptive intangible

harm—with no use, dissemination, or injury apart

from the receipt itself bearing too much information.

The near future will likely see a nationwide

consumer data privacy law with a private right of

action. It is anticipated that the statute will require

online disclosures of information about “cookies” and

data tracking—rights that can be easily violated

without causing any separate, actual injury. A

consumer data privacy statute could become the next

hotbed of private enforcement litigation by uninjured

privacy crusaders analogous to Respondent. And if

Respondent has standing here, then such plaintiffs

will cite this case to argue the same.

ARGUMENT

Conferring

Article

III

Standing

“Informational Injury” Plaintiffs Who Troll the

Internet For Technical Violations of Federal

Law But Suffer No Actual Harm Would Establish

a Dangerous Precedent Leading To a Flood of

Unwarranted Litigation

A. All

plaintiffs

must

have

suffered

particularized and concrete harm as a

prerequisite to standing

Article III of the Constitution defines and limits

the federal judicial power. Only certain “Cases” and

“Controversies” are justiciable in federal court. U.S.

Const., Art. III, § 2, cl. 1.

One of these constitutional requirements is that all

plaintiffs have standing, i.e., 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.” Spokeo, 578 U.S. at 341.

An “injury in fact” is “an invasion of a legally

protected

interest”

that

“concrete

and

particularized” and “actual or imminent”—not

“conjectural” or “hypothetical.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992); see also Spokeo, 578

U.S. at 339.

In TransUnion, this Court defined the meaning of

“concrete harm” in the context of intangible,

informational injury. The Court articulated when the

deprivation of information required to be disclosed by

federal law is itself an actual injury as contemplated

by Article III. In deciding this question, the Court

acknowledged that Congress can create rights that do

not otherwise exist and that infringement of such

rights can be enough of an injury to confer standing to

sue in federal court. See TransUnion, 141 S. Ct. at

2204-05. Even so, the Court made clear that standing

is allowed only where, unlike here, the injury is both

“particularized” and “concrete.” Id. at 2200.

Certain injuries like physical or monetary injuries

are plainly concrete harms. Intangible harms—like

reputational injuries—also can be concrete harms, but

only sometimes. Id. at 2204-05. Deciding whether

intangible injuries are “concrete” requires examining

the “important roles” of “both history and the

judgment of Congress,” because the origins of the caseor-controversy standing requirement are “grounded in

historical practice.” Spokeo, 578 U.S. at 340-341.

For a mere violation of a law requiring disclosure

of information to be justiciable without proof of

independent harm, the alleged injury must have a

“close relationship” to a harm traditionally recognized

as providing a basis for a lawsuit in American courts.

TransUnion, 141 S. Ct. at 2204. Mere violations of

federal statutes creating informational rights cause

“cognizable intangible harm” only where there is “a

close historical or common-law analogue.” Id.

For example, in TransUnion, the Court observed

that intangible harms with analogous remedies at

common law include “reputational harms, disclosure

of private information, and intrusion upon seclusion.”

Id. If there is no historical common-law remedy, there

is no “concrete harm” from merely being deprived of

information. Id.

B. The “concrete harm” requirement

grounded in separation of powers

“The ‘law of Art. III standing is built on a single

basic idea—the idea of separation of powers.’”

TransUnion, 141 S. Ct. at 2203; id. at 2207 (“The

concrete-harm requirement is essential to the

Constitution’s separation of powers . . . .”). The

concrete harm requirement “ensures that federal

courts decide only ‘the rights of individuals,’ Marbury

v. Madison, 5 U.S. 137 (1803), and that federal courts

exercise ‘their proper function in a limited and

separated government.’” Id. (quoting John Roberts,

Article III Limits on Statutory Standing, 42 Duke L.J.

1219, 1224 (1993)).

Congress has the power to create new statutory

rights that may give rise to standing and are

enforceable in federal courts—including laws

mandating disclosure of information—but Congress

cannot enlarge the meaning of actual injury. This

Court, not Congress, decides whether a statute confers

a right sufficient for standing. Id. at 2205 (“‘we cannot

treat an injury as ‘concrete’ for Article III purposes

based only on Congress’s say-so.’”) (quoting Trichell v.

Midland Credit Mgmt., Inc., 964 F.3d 990, 999, n. 2

(11th Cir. 2020)).

Congress has no “lawmaking power to transform

something that is not remotely harmful into

something that is.” Id. (quoting Hagy v. Demers &

Adams, 882 F.3d 616, 622 (6th Cir. 2018)). This is

why modern, prevailing—even moral—views of what

“is” intangible injury likewise are not enough to allow

Congress to redefine the meaning of “injury” as

contemplated by Article III.

It is immaterial that “Congress, the President, the

jury, the District Court, the Ninth Circuit, and four

Members of this Court” would “think that a person is

harmed” by the mere fact of being falsely dubbed a

terrorist in a credit report. TransUnion, 141 S. Ct. at

2204 (Thomas, J., dissenting). But that is not enough

to confer Article III standing. See id. at 2213 (“In sum,

the 6,332 class members whose internal TransUnion

credit files were not disseminated to third-party

businesses did not suffer a concrete harm.”).

This Court held in TransUnion that exercising

standing over uninjured plaintiffs undermines federal

judicial authority and violates the separation of

powers and Article III. See id. at 2207 (“A regime

where Congress could freely authorize unharmed

plaintiffs to sue defendants who violate federal law not

only would violate Article III but also would infringe

on the Executive Branch's Article II authority.”). For

the same reason federal courts could not hear the

claims of the class-action plaintiffs in TransUnion who

suffered no concrete harm, it would likewise violate

the separation of powers to entertain lawsuits filed by

ADA tester plaintiffs like the Respondent here.

C. Respondent’s allegation that she felt

stigmatized by the withholding of

information she did not need is far from

enough to afford Article III standing

Respondent’s asserted basis for standing—her

claimed stigmatization and emotional distress from

viewing Petitioner’s website—is not actionable by

ADA Title III private-action plaintiffs like her. See 42

U.S.C. § 12188(a)(1); see also Allen, 468 U.S. at 755

(unlawful discrimination in violation of a federal law

does not afford universal standing to all stigmatized

persons within protected class—rather, the injury

“accords a basis for standing only to ‘those persons

who are personally denied equal treatment’ by the

challenged discriminatory conduct.”) (quoting Heckler

v. Mathews, 465 U.S. 728, 740 (1984)).

The First Circuit held that Respondent’s emotional

injury—the allegation that she felt stigmatized by

unlawful discrimination—is enough to conclude that

she was constitutionally injured and has standing. In

so doing, the court of appeals relied almost exclusively

on distinguishable precedent. It also conflated the

required common-law analogs with its own

(substantively irrelevant) modern views about

unlawful discrimination. This is the wrong analysis.

Applying the correct standard as required by

TransUnion, Respondent suffered no cognizable

injury and lacks Article III standing.

1. No particularized injury

“For an injury to be ‘particularized,’ it ‘must affect

the plaintiff in a personal and individual way.’”

Spokeo, 578 U.S. at 339 (quoting Lujan, 504 U.S. at

560, n. 1). Respondent concedes she never needed the

information whose absence she claims was the cause

of her supposed injury. She was not trying to reserve

a room. Rather, she was trying to find websites

missing the public disclosures required by the hotel

room regulation, 28 C.F.R. § 36.302(e)(1)(ii). The

withholding of information about guest rooms

therefore was not particularized to her.

2. No concrete harm

A “bare procedural violation” is actionable only

with attendant “concrete harm.’” TransUnion, 141 S.

Ct. at 2214. “[I]f there were no concrete-harm

requirement, the requirement of a particularized

injury would do little or nothing to constrain Congress

from freely creating causes of action for vast classes of

unharmed plaintiffs to sue any defendants who violate

any federal law.” Id. at 2206, n.2.

To conclude that a violation of the regulation

presumptively injured Respondent, the First Circuit

should have analyzed “both history and the judgment

of Congress” and asked whether Respondent’s alleged

harm has “a close historical or common-law analogue.”

Id. at 2204. It never did that analysis.

a. No historical basis

Respondent’s alleged intangible harm has no “close

relationship to a harm that has traditionally been

regarded as providing a basis for a lawsuit in English

or American courts.” Spokeo, 578 U.S. at 340-41. As

such, her “injury” is not concrete.

But according to the First Circuit, because the

ADA prohibits disability discrimination and this

ministerial regulation about hotel room accessibility

features was promulgated under the ADA, a violation

of it is tantamount to discrimination. The First

Circuit erroneously equated denying Respondent

information—with

intentionally

discriminating

against her because of her disability. The court of

appeals was mistaken that a bare violation of the

regulation, coupled with Respondent’s allegation that

she suffered stigmatization as a result, means that

Respondent was concretely injured and has standing.

That the regulation implements the ADA, and that

its goal is to facilitate access to public accommodations

by people who are disabled, does not in turn mean that

there is a historical precedent for remedying this

harm. There is none. For centuries, the common law

did not protect the rights of people with disabilities.

That is why the ADA was enacted. Even still, people

with disabilities asserting private claims under Title

III (like Respondent) cannot recover for emotional

distress. See 42 U.S.C. § 12188(a)(1). Injunctive relief

and attorney fees are their sole remedy. Id. Thus, not

only is there a lack of historical support, there also is

no statutory remedy under the ADA for Respondent’s

claimed harm.

b. Havens Realty is inapplicable

The First Circuit relied almost exclusively on

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)

to find that Respondent has standing. The court of

appeals explicitly conceded that Respondent lacks

standing if TransUnion controls. Pet. App. at 18a-19a.

It essentially asked this Court to overrule Havens

Realty so that lower courts can follow TransUnion. Id.

Havens Realty does not conflict with TransUnion.

Havens Realty involved a class of one. The only person

who was discriminated against was the in-person,

African American tester plaintiff who alleged racial

discrimination in violation of the Fair Housing Act.

The holding in Havens Realty is not controlling

here because Respondent would presumably have

standing had she traveled to Maine and shown up at

the motel, bags in hand, asking the front desk clerk for

information about accessible room features and been

denied such information. In that event, she would

have been analogous to the tester plaintiff in Havens

Realty, and to the TransUnion plaintiffs whose

incorrect credit report information was disclosed to

third parties thus personally affecting them.

In both cases, the plaintiffs had constitutionally

sufficient answers to the question: “What’s it to you?”

Respondent does not have such an answer. She was

not targeted or discriminated against by the

Petitioner. She is not a class of one. Instead, she was

an anonymous Internet user. Petitioner’s website was

identical for all online visitors. Millions of disabled

Americans could have viewed the website

simultaneously and all been “injured” at once.

Digital tester plaintiffs who view websites and sue

are not analogous to in-person testers such as the

plaintiff in Havens Realty. A generic omission of

information about physical accessibility features of

guest rooms on publicly accessible websites is not

analogous to discriminating against someone, in

person, because of their disability. The latter is not a

mere denial of information—it is a situation where

someone is “personally denied equal treatment.”

Allen, 468 U.S. at 755. That is not what happened to

Respondent. Havens Realty is inapplicable.

3. Emotional distress is insufficient

The First Circuit relied on modern views abhorring

disability discrimination. It also deemed legitimate

the stigmatization which disabled individuals

regularly suffer—and have suffered for centuries

when the law failed to help them. These concerns are

a given, but they do not substitute for the required

historical, common-law support when deciding

whether a plaintiff like Respondent has standing.

Modern views about what is “injury” do not make

these kinds of intangible harms justiciable.

It is immaterial that “Congress, the President, the

jury, the District Court, the Ninth Circuit, and four

Members of this Court” might “think that a [disabled]

person is harmed” by being denied guest room-related

information which he or she does not actually need.

TransUnion, 141 S. Ct. at 2224-25 (Thomas, J.,

dissenting). That is not enough to confer standing.

It would be an unconstitutional exercise of judicial

power to vest Respondent with standing. Doing so

would give her an open door to federal courts by

claiming a “harm” that not only lacks historical

common-law support, but also lacks an existing

remedy under the current comprehensive statutory

protections of the ADA. See 42 U.S.C. § 12188(a)(1);

Allen, 468 U.S. at 740 (“stigmatic injury, or

denigration, suffered by all members of a racial group”

due to racial discrimination is insufficient to afford

standing to stigmatized persons); cf. Cummings v.

Premier Rehab Keller, PLLC, 142 S. Ct. 1562, 1577

(2022) (Kavanaugh, J., concurring) (compensatory

damages for emotional distress are unrecoverable as a

remedy for specified civil rights statutes with implied

private rights of action; the separation of powers

“counsels against judicially authorizing compensatory

damages for emotional distress” in such cases).

D. Conferring standing based on mere

violations of informational laws would

lead to novel and unwarranted litigation

Respondent claims injury by being deprived of

information on the Internet. Yet when the regulation

at issue was promulgated in 1991, the drafters did not

know about the future ways individuals would use the

Internet to access information in the 21st Century.

The same can be said for many existing federal laws

that guarantee individual rights.

But when are informational injuries on the

Internet justiciable under Article III?

This case goes to the heart of that question and

thus transcends the ADA. It is an issue that has vast

implications. The question of the circumstances under

which online acts cause “cognizable intangible harm”

is a pivotal one considering rapidly emerging issues

surrounding online enforcement of individual rights,

“digital discrimination” against protected classes, and

data privacy.

If online tester plaintiffs like Respondent have

standing to challenge informational injuries on the

Internet arising from missing disclosures of

meaningless information required to be given to the

public at large—then so do future plaintiffs who will

claim they were deprived of (perhaps innocuous,

unnecessary) information that they were entitled to

receive online. It will not matter if the withholding of

information, to them, was harmless. And it will not

matter the kind of right is at issue.

The same applies to online tester plaintiffs who

patrol the Internet for missing disclosures of

information required by law to be digitally

published—they will rely on this case to argue for

“concrete harm” as well, making the same self-created

harm argument as Respondent. Or they may argue

for new injuries that are now unknown but will

surface as new technologies create new ways for laws

to be broken—and enforced—in the digital realm. If

Respondent has standing, this case will be a harbinger

for serial private enforcement litigation in many areas

of federal law.

1. Along with the ADA, numerous federal

statutes containing private enforcement

rights require informational disclosures

Many federal laws with private rights of action

mandate public disclosures of information on a wide

range of subject areas affecting various industries.

Along with the ADA regulation at issue, examples

include environmental laws requiring disclosure of

data on pollution,2 securities laws,3 laws on interstate

land sales,4 truth in lending laws,5 and freedom of

information laws.6 All such statutes, and many more

in the U.S. Code, require informational disclosures to

be made to the public (or certain members of the

public) and simultaneously afford a private right of

action to aggrieved individuals.

While these laws do not yet have extensive

precedent involving tester plaintiffs or abusive private

enforcement, other statutes do—including laws

requiring information unique to specific types of

individuals to be disclosed to them. TransUnion and

Spokeo were filed under the Federal Credit Reporting

Act, an example of one such statute.

2 42 U.S.C. § 7604 (Clean Air Act authorizes citizens to enforce

compliance with emission standards or limitations and orders

issued by the EPA Administrator or a State); see also Utah

Physicians For a Healthy Environment v. Diesel Power Gear,

LLC, 21 F.4th 1229 (10th Cir. 2021) (affirming in part and

reversing in part judgment under the Clean Air Act in private

enforcement action under § 7604).

3 17 C.F.R. § 230.481 (information required in prospectuses of

publicly traded companies selling federally regulated securities).

4 15 U.S.C. § 1707 (Interstate Land Sales Act).

5 15 U.S.C. § 1601, as amended (Truth in Lending Act).

6 5 U.S.C. § 552 (Freedom of Information Act).

Another example is the Fair and Accurate Credit

Transaction Act (FACTA). Plaintiffs have claimed

that information printed on credit card receipts

violates 15 U.S.C. § 1681c(g)(1), which prohibits any

person who “accepts credit cards or debit cards for the

transaction of business” from “print[ing] more than

the last 5 digits of the card number or the expiration

date upon any receipt provided to the cardholder at

the point of the sale or transaction.” There is a circuit

split over whether such plaintiffs have standing for

such bare procedural violations.7

2. Private suits alleging “digital” injuries

could skyrocket in the near future

Current circuit splits, recent cases involving

Internet-based injuries, and recent federal agency

guidance on how statutory rights apply online, all

suggest that private enforcement actions seeking to

enforce “online” rights will be a main focus of the

plaintiffs’ bar. A holding here that Respondent has

standing would ignite such litigation.

The ADA is the source of Respondent’s claimed

harm—yet circuits remain starkly divided on whether

7 See Thomas v. Toms King (Ohio), LLC, 997 F.3d 629 (6th Cir.

2021) (no standing); Muransky v. Godiva Chocolatier, Inc., 979

F.3d 917 (11th Cir. 2020) (en banc) (no standing); Kamal v. J.

Crew Group, Inc., 918 F.3d 102 (3d Cir. 2019) (no standing);

Noble v. Nev. Checker Cab Corp., 726 F. App’x 582 (9th Cir. 2018)

(no standing); Katz v. Donna Karan Co. Store, LLC, 872 F.3d 114

(2d Cir. 2017) (no standing); cf. Jeffries v. Volume Servs. Am.,

Inc., 928 F.3d 1059, 1066 (D.C. Cir. 2019) (standing).

online-only businesses lacking physical storefronts

are “places of public accommodation” under the ADA

that must provide “reasonable accommodations” to

disabled people for rights and privileges of society.8 If

digital platforms are indeed places of public

accommodation, the ADA-based for-profit hustle

dominating the physical world could easily permeate

the digital one. But this question remains unresolved.

Efforts to remedy online deprivations of federal

rights go beyond the ADA as shown by recent cases

which, though not specifically addressing the issue of

standing, exemplify digital-injury claims that courts

will commonly see. For example, in National Fair

Housing Alliance v. Facebook, the plaintiffs

successfully sued Facebook for online housing

discrimination

after

allegedly

uncovering

discriminatory advertising practices. See Nat’l Fair

Hous. All. v. Facebook, Inc., No. 1:18-cv-02689

(S.D.N.Y. Feb. 6, 2019).

8 The First and Seventh Circuits have found that an “electronic

space” (a website) can itself be a place of public accommodation.

See Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir.

1999). The Third, Sixth, Ninth, and Eleventh Circuits have held

that places of public accommodation are limited to “physical

places,” Parker v. Metro Life Ins. Co., 121 F.3d 1006, 1010-11

(6th Cir. 1997), but that goods and services provided by a public

accommodation—including those provided through a public

accommodation’s website—might fall within the ADA’s

protections if they have a sufficient nexus to the public

accommodation’s physical location. See, e.g., Weyer v. Twentieth

Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).

The plaintiffs alleged that Facebook allowed

advertisers to exclude certain protected classes from

seeing housing-related advertisements. Facebook

moved to dismiss, arguing that the Communications

Decency Act immunized it from the Fair Housing Act.

The motion was denied. Soon after, the case resolved

via a court-approved consent decree prohibiting

discrimination, requiring compliance with advertising

laws, and imposing other requirements for hiring,

promotion, retention, training, and reporting.

Another private enforcement action about online

rights, which suggests an increase in digital-harm

litigation, is National Association of the Deaf v.

Harvard University, 377 F. Supp. 3d 49 (D. Mass.

2019), where the plaintiff filed a putative class action

under the ADA and Section 504 of the Rehabilitation

Act of 1973, which vests individuals who are disabled

with a private right of action to seek to enjoin

discrimination in programs and activities receiving

federal financial assistance. See 29 U.S.C. § 794.

The plaintiff claimed Harvard failed “to provide

timely, accurate captioning of the audio and

audiovisual content that Harvard makes available

online to the general public for free.” National Ass’n

of the Deaf, 377 F. Supp. at 53. Dispositive relief was

denied because, per the district court, if the plaintiffs

could prove what they had alleged, they could prevail

on their Section 504 claims. Id. at 61-63. The case

then settled in a consent decree which required

Harvard to revamp and strengthen its digital

accessibility policy.9

Other developments in the law have removed

longstanding roadblocks—and paved the way—for

online tester plaintiffs by removing the previous

threat of criminal prosecution for online tester

activities. For example, the Computer Fraud and

Abuse Act (CFAA) purports to criminalize violations

of a website’s terms of service. See 18 U.S.C. § 1030.

It has been interpreted as criminalizing online activity

such as beneficial research and journalism. But this

Court held otherwise in Van Buren v. United States,

141 S. Ct. 1648 (2021), concluding “this provision

covers those who obtain information from particular

areas in the computer—such as files, folders, or

databases—to which their computer access does not

extend. It does not cover those who, like Van Buren,

have improper motives for obtaining information that

is otherwise available to them.” Id. at 1652.

A growth in claims alleging harm from online

algorithms and “big data” aggregation is also likely.

This court’s recent opinions issued in May 2023 in

Twitter, Inc. v. Taamneh, No. 21–1496 (May 18, 2023)

and Gonzalez v. Google, No. 21–1333 (May 18, 2023)

(per curiam) involved online injuries allegedly caused

by computer algorithms. The plaintiffs in both cases

claimed that certain Internet users were radicalized

by targeted, user-specific, custom-tailored content,

9 See https://accessibility.huit.harvard.edu/settlement-captionrequirements.

intentionally driven by complicated computer

algorithms.

Those algorithms, by design, route

content to people whom the algorithms “think” want

to see such content. The plaintiffs claimed the

defendant online businesses were the true cause of

their harm—not the acts carried out in real life, in the

physical world, by the hands and minds of faraway,

brainwashed foreign terrorists. Id.

The extent to which lawsuits alleging liability for

use of online personal data and information will

increase is unknown—but new federal agency and

executive branch guidance spotlighting informational

rights exercised online suggests that is what’s to come.

The Department of Health, the Federal

Communications Commission, the Equal Employment

Opportunity Commission, the Federal Trade

Commission, and the White House have issued

guidance and exercised regulatory authority stating

that federal statutory rights apply—and will be

enforced—on the Internet as in the physical realm.10

Congress is pushing hard for a comprehensive

federal data privacy law. The holding here could

dramatically affect the future viability of such

legislation—because siding with Respondent means,

by extension, approving of standing for tester

10 See, e.g., U.S. Dept. of Health and Human Services, Office for

Civil Rights, Guidance on Nondiscrimination in Telehealth:

Federal Protections to Ensure Accessibility to People with

Disabilities and Limited English Proficient Persons, July 29,

2022.

plaintiffs in data-privacy lawsuits alleging intangible

harms arising from missing disclosures or uses of

information, and doing so without concrete harm.

The American Data Privacy and Protection Act

was the first comprehensive consumer privacy bill to

pass through committees in July 2022, but action was

incomplete when the session adjourned.11 A major

point of contention is the private right of action.

Opponents argue that it will be abused and that

frivolous class action lawsuits filed by plaintiffs

claiming technical violations of privacy rules—

without alleging any independent harm—could

overburden the federal judicial system.

3. The “slippery slope” is real

Setting a precedent that a website lacking required

public disclosures causes a particularized, concrete

injury to an individual (much less a self-appointed

serial tester such as Respondent) by withholding

information that such individual never needed in the

first place, would make it much easier for plaintiffs to

claim intangible injury based on other types of alleged,

Internet-based informational harm.

The ADA already is a breeding ground for tester

plaintiffs and questionable standing rulings. If the

circuit split is resolved declaring every website

offering goods or services to the public at large to be a

11 See American Data Privacy and Protection Act, H.R. 8152,

117th Cong., available at https://tinyurl.com/yur7c6jv.

place of public accommodation under the ADA—then

tester plaintiffs will have a field day.

There is only a limited supply of businesses with

physical locations subject to the ADA. But there is no

end to the supply of websites and online businesses.

New ones go up as old ones come down. The supply is

endless—and it includes government websites. The

potential for litigation is nearly infinite.

If Respondent’s intangible injury is cognizable

under Article III, then so are the informational

“injuries” sustained by plaintiffs who receive receipts

with excessive credit card numbers printed on them.

Nothing will stop enterprising class-action lawyers

from extrapolating and applying the same litigation

model used in ADA cases to the myriad federal laws

requiring informational disclosures and granting

private rights of action.

Proposed nationwide consumer data privacy

legislation includes private enforcement rights

combined with mandatory informational disclosures of

procedural information (such as requiring websites to

disclose the use of “cookies” that track browsing

patterns). If Respondent has standing here, then so

would privacy activists and uninjured plaintiffs who

claim intangible harm from undisclosed cookies and

data trackers. Every small business with a website

which cannot afford compliance certificates, or IT staff

to provide the state-of-the-art compliance protocols,

could face digital vigilante justice done to advocate for

marginalized groups.

Given this Court’s recent holding in Van Buren v.

U.S., 141 S. Ct. at 1652, that the Computer Fraud and

Abuse Act (CFAA) does not criminalize mere

violations of website terms and services, it stands to

reason large swaths of digital testers are now on the

hunt for websites violating federal law—something

they avoided a few years ago. See, e.g., Annie Lee,

Algorithmic Auditing and Competition Under the

CFAA: The Revocation Paradigm of Interpreting

Access and Authorization, 33 Berkeley Tech. L.J.

1307, 1309-10 (2018) (observing, pre-Van Buren, that

online testers faced “the threat of litigation and

prosecution because their need for information from

online platforms clashes with the CFAA’s prohibition

on unauthorized access to a computer or website”).

And, in many cases, it will be a close call as to

whether alleged intangible injury is, in fact,

constitutionally injurious given that there are

historical analogs for many intangible harms

including privacy infringements. See TransUnion,

141 S. Ct. at 2200.12 These nuanced issues and cases

should be resolved on the merits and in the future—

not swept away in a sea change effected by this case.

CONCLUSION

Respondent lacks Article III standing. This Court

should reverse the First Circuit. Doing so will curtail

erosion of Article III standing and protect U.S.

12 See also, e.g., Wilson C. Freeman, Cong. Rsch. Serv., LSB10303,

Enforcing Federal Privacy Law-Constitutional Limitations on

Private Rights of Action (2019).

businesses and the economy from the harm resulting

from widespread, frivolous “enforcement” of federal

laws that confer private rights of action.

Respectfully submitted,