In my last blog I explained why the 10th Circuit was mistaken when it distinguished Ms. Laufer, the tester plaintiff in Laufer v. Looper, from Ms. Coleman, the tester plaintiff in Havens Realty v. Coleman. If the Constitutional standard for injury is that there be “downstream consequences,” as indicated in Transunion, no tester will ever suffer the kind of concrete injury required, whether they are subjected to personal discrimination like Ms. Coleman or generic discrimination like Ms. Laufer.
Whether any Circuit, or even the Supreme Court, is willing to pursue Transunion to its logical conclusion and simply declare that Havens Realty has been overruled remains to be seen. In this blog I am going to assume that no court will be willing to declare tester standing dead, and instead consider the effect of Transunion and earlier cases requiring a “particularized” injury on the kinds of serial lawsuits that dominate litigation under Title III of the ADA, followed by an inquiry as to whether a tester can somehow particularize their injury by seeking to patronize the facility they sue.
Janus, the Roman god who gave his name to January, famously had two faces, one looking to the future and the other looking back. I’m a little late for the New Years predictions and 2021 wasn’t all that much fun, but as long as we are still in Janus’ month I thought I would briefly provide some observations about what the old man in the beard has seen and what his younger counterpart is likely to see.
I’ll be speaking at the 
I continue to receive calls from businesses all over the country who have received demand letters from an Alabama lawyer², supposedly on behalf of an individual named Denaryle Williams.¹ As of December 15 it does not appear he has filed a single ADA lawsuit, nor does it appear that Mr. Williams has been a plaintiff in any ADA lawsuit. This is despite the fact that his threatened deadlines to file suit have passed for most of the demands I have seen. Every business has its own tolerance for risk so I’m not going to claim I know what you should do (although you can hire me – see email address at right). What I can say is that making your website accessible is a good idea because it is the right thing to do and helps your customers, not because of these letters, which seem intended only to put money in his pocket.
Almost everyone who ever was, had or has a child probably knows Bowser, the character from many Nintendo games. In Mario Party he often offers “gifts” that don’t always (or ever) turn out to be something you might want. Recent developments in accessibility law are, as usual, a mixed bag. Here’s what I found underneath the tree. Bwahahahaha!