I’m the last of the ADA bloggers to discuss Laufer v Looper, 21-1031, 2022 WL 39072, at *6 (10th Cir. Jan. 5, 2022) but reading the analysis by Bill Goren (Is Tester Standing a Thing When it Comes to Title III of the ADA) and Seyfarth Shaw (A Status Update on Hotel Reservations Website Lawsuits) has given me some perspective on what the decision means for tester standing in ADA and FHA cases. I think the discussion of tester standing in Laufer v. Looper exposes the fatal flaw in all tester standing cases; that is, testers never suffer the kind of injury that is now required by the Supreme Court to meet the requirements of Article III. Like Yorick, a fellow of infinite jest who bore young Hamlet a thousand times, tester standing should be dead (5).

Ms. Laufer is a “tester” who looks at hotel websites to see if they meet DOJ regulations for information about accessible features. She has appeared in my blogs before and recently lost on standing in the Fifth Circuit.¹ She does not intend to visit the hotels whose websites she inspects but she claims she is injured because she does not get information to which she has a statutory right under the ADA. She compares herself in this way to the tester plaintiff in Havens Realty v. Coleman, who was given false information about the availability of housing because she was black.

The 10th Circuit distinguishes Ms. Laufer from Ms. Coleman for two reasons – Ms. Coleman was given false information and Ms. Coleman was given that information because of racial animus. It’s worth reading the central part of the discussion:

Ms. Coleman was not just denied information. On four separate occasions, she asked about housing availability and was given false information because of her race. Ms. Laufer has not alleged that the Loopers gave her false information. Nor has she alleged they denied her information because of her disability. All individuals, whether or not disabled, had access to the same information on the Elk Run Inn’s ORS. Ms. Laufer’s alleged injury—her discovery that the ORS lacked certain information—is thus distinct from the injury suffered in Havens Realty, which was grounded in misrepresentation and racial animus.

There problem with is analysis is that there is no meaningful difference between the false information provided in Havens Realty and the incomplete information provided in Laufer v Looper. Ms. Coleman sued under 42 U.S.C. §3604(d), which requires truthful information. Ms. Laufer sued under 42 U.S.C. § 12182(a) as interpreted  in 28 C.F.R. § 36.302(e)(1)(ii), which requires certain minimum information about accessibility.  In both cases the plaintiff was insisting on what the statute required, and the fact that one statute required the truth and the other only required certain kinds of information doesn’t change the statutory nature of the rights asserted. Ms. Coleman’s standing cannot be distinguished from Ms. Laufer’s standing based on misrepresentation v. inadequate information.

That leaves the other factor noted by the 10th Circuit, racial animus. In Havens Realty a white tester was given truthful information while Ms. Coleman was given false information because she was black. The discrimination was undeniable. The landlord lied to Ms. Coleman because of her race.

Ms. Laufer’s claim could just as easily involve discriminatory animus. After all, the website regulations have been around for a long time, and if a hotel website does not yet comply with the regulations it might be reasonable to infer that the owner’s discrimination is intentional. It might be harder to prove discriminatory animus, but it is not necessarily absent and cannot provide a distinction between Ms. Coleman and Ms. Laufer.

Ms. Laufer did not rest her claim of injury only on her comparison to Ms. Coleman as a tester. She also claimed that she suffered an informational injury because she was deprived of information required by statute. Here the 10th Circuit turned to what really constitutes an injury for Article III purposes. Observing that in Transunion the Supreme Court rejected the notion that merely being deprived of information was a sufficient harm the 10th Circuit found that because Ms. Laufer had no use for the information she sought being deprived of it caused her no real injury:

Ms. Laufer has not alleged that she has any interest in using the information she obtained from the Elk Run Inn’s ORS beyond bringing this lawsuit. She has no plans to visit Craig, Colorado. She did not attempt to book a room at the Elk Run Inn and has no intent to do so. She therefore has not suffered an injury of the type recognized in [earlier cases.]

Everything said here about Ms. Laufer is equally true of Ms. Coleman. Ms. Coleman had no interest in using information about the availability of an apartment because she did not intend to rent an apartment. If the landlord had told her truth she still would not have rented, so the difference between true information and false information had no “downstream consequences” and caused no adverse effects. If Laufer doesn’t have standing, neither did Ms. Coleman.

In the last part of its analysis the Tenth Circuit distinguishes Ms. Laufer’s case from its own earlier tester cases. In these earlier cases the Tenth Circuit distinguished between the intention of using a service and the motive for using it. If the plaintiff intended to use the service and was denied the opportunity to do so then motive was unimportant. The problem here is that Transunion makes it clear that motive is important because it is the usefulness of the information that makes deprivation a harm. In Tandy v. City of Wichita and Colorado Cross Disability Coalition the Tenth Circuit held, in essence, that among the rights protected by the ADA is the right to test for accessibility. A plaintiff who could not get bus route information because of a faulty TTY system had been injured because without that information he couldn’t find out where and when to find a bus so he could see if it was accessible. Not that he had somewhere to go; his only goal was to see if the bus was accessible. But that brings us back to the Tenth Circuit’s rejection of the very same motive in Ms. Laufer’s case: “Ms. Laufer has not alleged that she has any interest in using the information she obtained from the Elk Run Inn’s ORS beyond bringing this lawsuit.” If you have no place to go then it doesn’t matter to you whether the buses are accessible.

This is the fundamental problem with tester standing; testers by definition suffer no injury when they are exposed to a statutory violation because the only interest they have is in the abstract enforcement of the law. As one court interpreting TransUnion put it: “If the plaintiff has no real skin in the game, there’s no Article III case or controversy, and federal courts lack jurisdiction.” Cutrone v. Allstate Corp., 20 CV 6463, 2021 WL 4439415, at *5 (N.D. Ill. Sept. 28, 2021). An earlier decision makes the same point: “Without proof of actual skin in the game, the lawsuit is no more than “a vehicle for the vindication of the value interests of concerned bystanders”” Graminex, L.L.C. v. Aktiebolaget Cernelle, 451 F. Supp. 3d 732, 742 (E.D. Mich. 2020). The various ways in which the Tenth Circuit tries to distinguish Ms. Laufer from other testers who have been found to have standing are ultimately unpersuasive. If the plaintiff’s only motive is testing for ADA or FHA compliance then they do not have “real skin in the game” and cannot suffer an injury sufficient to satisfy the requirements of Article III.

I don’t know whether the Supreme Court is willing to explicitly overrule Havens Realty, but given the sheer number of lawsuits filed by purported ADA testers it seems likely sooner or later the Court will have to face the issue squarely. But let’s suppose the Supreme  Court isn’t willing to eliminate tester standing altogether. Is there a meaningful way to distinguish the Laufers of the world and the Colemans? That answer likes in the standing requirement the Tenth Circuit failed to discuss – particularity of injury.  The particularity requirement alone should be sufficient to defeat tester standing in every typical Title III ADA case and every FHA case arising under 42 U.S.C. §3604(f)(3)(C) for reasons I’ll explain in my next blog.

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¹ See, Tester standing under the ADA – Getting it wrong, getting it right, and an interesting but irrelevant analysis. The Fifth Circuit case agrees with the conclusions in Laufer v Looper but its abbreviated discussion is of less interest in understanding the implications of Transunion v. Ramirez.

² See, Ragin v. New York Times Co., 923 F.2d 995, 1000 (2d Cir. 1991). There is not universal agreement that this kind of implicit preference violates the FHA. See, Miami Valley Fair Hous. Ctr., Inc. v. Connor Group, 725 F.3d 571, 578 (6th Cir. 2013).

² See, Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?

(4) The Fifth Circuit reached the same conclusion with a more abbreviated argument in Laufer v. Mann Hosp., L.L.C., 996 F.3d 269, 272 (5th Cir. 2021)

(5) For those interested in the full quote:

“Alas, poor Yorick! I knew him, Horatio: a fellow
of infinite jest, of most excellent fancy: he hath
borne me on his back a thousand times; and now, how
abhorred in my imagination it is! my gorge rims at
it. Here hung those lips that I have kissed I know
not how oft. Where be your gibes now? your
gambols? your songs? your flashes of merriment,
that were wont to set the table on a roar? Not one
now, to mock your own grinning? quite chap-fallen?”