“Tester standing” is an area of ADA litigation that seems to create a good deal of confusion, so it is worthwhile to take a look at the 4th Circuit’s recent decision in Nanni v. Aberdeen Marketplace, Inc.,  2017 WL 6521299 (4th Cir. Dec. 21, 2017). As is often the case, the decision illuminates the requirements for standing but contains the seeds of future confusion.

The Fourth Circuit’s decision concerned a motion to dismiss made at the very beginning of a lawsuit, but it is easier to understand the position of a tester under the ADA by starting at the end of lawsuit – the trial. That is when, as the saying goes, the truth don’t lie.

To prevail in an ADA case based on architectural barriers the plaintiff must prove that he was injured by an ADA violation before he filed suit and that he will likely be injured in the future unless that violation is remediated. Let us suppose that an individual like Mr. Nanni testifies that he went to a mall or store but had some difficulty getting out of his car because the parking space was not properly constructed. He then testifies that he is likely to go back in the future, and if the space is still not corrected he will have the same problem. Perfect. Injury before suit, injury in the future, he has standing.

Now let us suppose the plaintiff admits he went to the mall as a tester looking for ADA violations. He also admits that he has filed many lawsuits against businesses like the mall that are not close to his home. Given a long list of businesses he sued he can’t recall when if ever he returned to any of them. Nonetheless he claims that he will return to the defendants’ business in the future and will therefore be harmed by any barriers to access that are not fixed. The judge looks him in the eye and decides he is lying. This is what happens at trial – the judge or a jury decides who is lying and who is telling the truth. Because the judge doesn’t believes he will return the judge also thinks there is no likelihood of future injury. The plaintiff loses no matter how real the ADA violations might have been because without that future injury he does not have standing to ask for injunctive relief.

Now let’s wind back the clock to the beginning of the lawsuit. Same plaintiff, same history of lawsuits, but this time the judge is not listening to testimony at trial but instead reading the complaint. It says all the same things the plaintiff intends to say at trial. The judge throws the case out, saying that the complaint isn’t sufficiently persuasive to satisfy the requirements of Rule 8 of the Federal Rules of Civil Procedure as interpreted in the Supreme Court’s decisions in Iqbal and Twombly.* That’s the case that went to the Fourth Circuit, which said two uncontroversial things:

1. Being a tester does not disqualify a plaintiff from filing a lawsuit because you can be a tester and still be injured by an ADA violation. The plaintiff may have been looking for ADA violations, but he still couldn’t get out of his car, and that is precisely the kind of injury the ADA was intended to prevent.
2. Being a tester didn’t mean the plaintiff did not intend to return. He said in the complaint that he intended to return and at the beginning of the case, before the judge looks the plaintiff in the eye and hears his testimony, the judge has to assume that what the complaint says is true.

The first point is one that is often mis-stated, with plaintiffs and others saying that “testers have standing.” The drive-by litigation boom has been fueled by the notion that claiming to be a tester and seeing a possible violation is sufficient, but there is no rational theory of standing that would allow this. Testers don’t have standing because they are testers, they have standing because they have been injured.

The second point is that while being a tester is not sufficient, but it also doesn’t disqualify the plaintiff. This is something the district court got right and it would have been helpful for the Fourth Circuit to confirm it.

The real controversy about testers is usually not whether there is a past injury, but whether there is going to be a future injury. What the district court said, in essence, was that with Nanni’s litigation history he would have to plead a lot of details to make a plausible case that he would return. The Fourth Circuit rejected this, observing that because being a tester did not disqualify a plaintiff there was no reason to think testers had an extraordinary obligation to provide details at the beginning of the case. This is not by any means a radical view.

Then, unfortunately, the Fourth Circuit says this: “At bottom, we reject the proposition that Nanni’s motivations in pursuing his ADA claim against Aberdeen deprive him of standing to sue in these proceedings.” 2017 WL 6521299, at *8. This is at best only half true. A plaintiff’s motives can deprive him of standing if, based on those motives, the court finds after a trial that there was no intent to return. Motives are important evidence about future behavior and are therefore relevant. What the Fourth Circuit should have said, and perhaps meant to say, is that motive does not necessarily deprive a plaintiff of standing. At the pleading stage a tester has no higher pleading obligation than any other plaintiff, but at trial a tester may have some explaining to do. It’s an important difference, and one that needs to be more clearly recognized.

* See our earlier blog “Iqbal, Twombly and the ADA”

It would be well worthwhile for any reader of this blog or our previous blog on internet accessibility cases to check the latest blog at williamgoren.com, which discusses the same issues from a different perspective.