picture of Hamlet with the skull of YorickIn 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.

The Supreme Court’s discussion of the particularity requirement in recent cases has not been particularly helpful in understanding just what it means. In Spokeo v. Robins the  Court notes that the injury must affect the plaintiff in a “personal and individual way” and that it not be “undifferentiated.” At the same time, the Court writes that:

The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance. The victims’ injuries from a mass tort, for example, are widely shared, to be sure, but each individual suffers a particularized harm.
Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016), as revised (May 24, 2016). Other characterizations like “distinct and palpable” (Seldin v. Warth) or not merely “abstract” (O’Shea v. Littleton) are not very enlightening. However, looking at the statutory provisions that serial filers rely on suggests that their injury is, indeed, abstract.

Comparing Ms. Coleman, the gold standard tester, with Ms. Laufer, the dross of testers, the difference in the particularity of their injury is clear. Ms. Coleman’s claims under the FHA arose from discrimination that was directed only at her. It was personal and she was the only victim. Ms. Laufer, on the other hand, was suffered from a kind of discrimination that was not at all personal. She merely confronted a condition that is legally regarded as discriminatory. This kind of discrimination that exists before there is a victim can be found in both the ADA and the FHA. In the FHA it takes the form of design/build discrimination outlawed by 42 U.S.C. §3604(f)(3)(C). In the ADA it takes the form of design/build discrimination outlawed by 42 U.S.C. §12183(a) and barrier removal discrimination outlawed by 42 U.S.C. 12182(b)(2)(A)(iv). Under the ADA this also includes the design/build equivalent for websites.

It is no coincidence that serial filers always sue under these provisions of the ADA and FHA. Looking for a person to discriminate against a tester in a personal way is difficult though not impossible. A tester and their lawyer can’t make money if the search for defendants takes a lot of time. On the other hand, finding a condition that has been defined as discriminatory relatively easy, especially since conditions are available 24 hours a day, seven days a week and can found without even getting out of a car or, with the help of Google maps, without getting off the sofa. Unlike the other forms of industrial litigation like personal injury work ADA and FHA serial litigation doesn’t even require advertising. Instead of seeking a large volume of plaintiffs the serial ADA or FHA lawyer uses one plaintiff to generate a large volume of lawsuits.

The problem, of course, is that every person with the same disability who is merely exposed to a discriminatory condition suffers exactly the same injury. Their injury is not particularized and certainly is  “undifferentiated.” See, U. S. v. Richardson, 418 U.S. 166, 176–77 (1974). Laufer’s cruising the web is analogous to the pure “drive-by” plaintiff who finds an improperly designed accessible parking space; in both cases the injury is generic.

Could an ADA tester solve this problem by taking a more hands on approach? Many ADA testers allege that they visited a particular location not only as a “tester” but also as a patron. In some cases they may make a purchase and attach the receipt to their complaint as proof of their bona fides. Some add a selfie taken in front of the business to prove they were really there. Can this kind of patronage overcome the generic nature of the discrimination they claim to have suffered? There are two answers to this question. The first lies in an ancient common law doctrine, “volenti non fit injuria,” which be roughly translated “he who consents to an act is not wronged by it.” This common law doctrine has been applied to causes of action created by federal law because “[c]ommon law defenses routinely apply against statute-based claims, absent express legislative intent to the contrary.” Beyond Sys., Inc. v. Kraft Foods, Inc., 972 F. Supp. 2d 748, 770 (D. Md. 2013), aff’d, 777 F.3d 712 (4th Cir. 2015). The ADA and FHA are often treated as creating tort type claims, so it makes perfect sense that this common law defense to tort claims should also apply to the ADA and FHA. Ordinary ADA testers are motivated by the desire to find and either see or experience some pre-existing discriminatory condition. They want to be victims of discrimination, and it is simply irrational to claim that a person who seeks out discrimination and finds what they want has suffered any kind of injury at all.

However, if seeking out an injury eliminates standing then, of course, every tester lacks standing because the essence of testing is to seek to be injured. There is, however, a difference between ADA testers who buy a pack of gum or soft drink so they can claim they were a patron of the facility they sue and a tester like Ms. Coleman. An ADA tester who successfully makes a purchase by getting into the public accommodation has not suffered an injury of the kind the statute is intended to prevent. The fundamental purpose of the ADA is to permit disabled individuals to participate fully in the social and economic life of the nations. A tester who is able to buy something has not been excluded from that participation even if they have been inconvenienced.  Ms. Cole did suffer precisely the injury the law was written to prevent, while ADA testers do not suffer such an injury, even if they go inside the defendant facility to buy something.

I don’t believe Havens Realty v. Coleman can be reconciled with the standing requirement as explained in TransUnion. Even a tester whose injury appears to be “particularized” and is just the injury the statute is supposed to prohibit cannot claim their injury is “concrete” in the sense that it has “downstream consequences.” Testers have been given standing to sue despite Article III’s case or controversy requirement, largely based on language in Congressional proceedings talking about creating an army of privates attorney general to eradicate discrimination. Creating an army of private attorneys general is precisely what Article III forbids, because attorneys general act to vindicate the public interest in compliance with the law rather than the particularized interest of an individual who has suffered a concrete injury. The Tenth Circuit’s decision in Laufer should be the first of many decisions that finally put an end to tester standing and the litigation industry it has created.