Laufer v Acheson Hotels

ADA serial litigation – will the Supreme Court cut off the head of this snake?

March 31, 2023 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - Hotels, ADA - serial litigation Tags: ADA defense, Havens Realty, Laufer v Acheson Hotels, serial litigation, tester standing

ouroboros - snake devouring itself Ouroboros – the snake devouring its own tail is, according to Encyclopedia Brittanica, an ancient symbol of the endless cycle of death and rebirth. It’s a little like serial litigation under the ADA, where the same old issues and plaintiffs have been appearing and re-appearing for at least a decade. Now, however, it looks like there may be a real breakthrough (or setback, depending on where you stand).

On March 27 the Supreme Court granted certiorari in Acheson Hotels LLC v. Laufer, one of several recent appellate decisions addressing whether one of the most prolific ADA serial filers of all time, Deborah Laufer, has standing to sue hotels she never intends to visit because their websites lack accessibility information. You can read the background to this unfolding story in many places, including this blog and others.¹ A decision that Ms. Laufer does not have standing could – depending on how it is written, finally cut the head off this particular snake and end the cycle of serial ADA litigation.

By way of background, the Supreme Court reminded us in the Transunion case that there are two steps in a question about standing to sue under a federal statute. Step one is whether Congress created an injury that the plaintiff can sue for. This is a question of statutory interpretation. Step two is whether that injury is sufficient to satisfy the requirements in Article III of the Constitution. Just because a statute creates an injury doesn’t mean it is the kind of injury sufficient for the Constitution. The constitutional standing issue was the exciting part of Transunion and justifiably got all the attention.

The petition for certiorari in Acheson Hotels argues primarily that Laufer lacks constitutional standing, but although it isn’t as sexy I think the Supreme Court can avoid the constitutional standing issue because Laufer did not suffer a statutory injury. “Tester standing” cases holding in favor of ADA serial litigants like Laufer rely on the Supreme Court’s decision in Havens Realty Corp. v. Coleman for the notion that testers can suffer a statutory injury, so it seems Haven would have to be overruled to decide against Laufer. That idea mis-reads Havens the tester standing cases uniformly ignore the most important phrase in that decision and therefore reach the wrong conclusion about what Congress intended when it passed the ADA.

Havens is often characterized as a case about tester standing, but that is a misleading generalization. In Havens black and white testers tried to get information about apartments under the pretense of wanting to rent. The white tester was told the truth – apartments are available – but the black tester was told a lie – apartments are not available. They sued claiming violations of two sections in the Fair Housing Act, §3604(a), which prohibits a discriminatory refusal to rent, and §3604(d), which prohibits discriminatory lying about the availability of an apartment. The Supreme Court found that the black tester could not sue under §3604(a) because it explicitly requires a bona fide intention to rent, which the black tester did not have. That brought it to the standing question: had the black tester suffered an injury when he was lied to about an apartment he never intended to rent anyway.

Since Supreme Court decisions are precisely written, it is worth looking at what the Court said when it discussed this issue:

The black individual respondent (Coleman) has standing to sue in her capacity as a “tester.” Section 804(d) establishes an enforceable right of “any person” to truthful information concerning the availability of housing. A tester who has been the object of a misrepresentation made unlawful under § 804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a damages claim under the Act. That the tester may have approached the real estate agent fully expecting that he would receive false information, and without any intention of buying or renting a home, does not negate the fact of injury within the meaning of §804(d). If, as alleged, Coleman was told that apartments were not available while white testers were informed that apartments were available, she has suffered “specific injury” from petitioners’ challenged acts, and the Art. III requirement of injury in fact is satisfied.

I have highlighted the critical language, “injury in precisely the form the statute was intended to guard against.” If you want to know whether a tester has suffered an injury created by statute you have to ask what injury the statute was intended to prevent. Whether they call themselves a tester is irrelevant because no matter what their motivation, they can only sue if they have suffered an injury in precisely the form the statute was intended to guard against. If they have not the lack of constitutional standing is irrelevant. You never get to that question.

So just what injury was Title III of the ADA intended to guard against? That question is answered in 42 U.S.C. §12182(a), the general prohibition on disability discrimination. Title III is intended to guard against discrimination:

on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation

Every following subsection and regulation merely elaborates on how discrimination might occur; they do not enlarge the harm Congress intended to prevent, which was discrimination on the basis of disability in the full and equal enjoyment of goods, facilities and so on.

Cases looking a Havens often conclude that an ADA tester can suffer an injury without a bona fide intention to use goods and services because the black tester in Havens had no bona fide intention to rent. That claim ignores the Supreme Court’s careful observation that §3604(d) is not about renting, but about obtaining truthful information. The harm the statute was intended to protect against was getting false information because of race; that harm did not depend on how the information was or was not going to be used.

Now let’s look at Ms. Laufer. The regulations interpreting the statute require that hotel websites provide information about accessibility. Is this requirement that information be provided analogous to the requirement of truthful information in §3604(d)? No. Section 3604(d) does not prohibit lying in general about the availability of an apartment. It only prohibits lying with a discriminatory motive. If the defendant in Havens lied to everyone regardless of race there would have been no violation of §3604(d). There was a violation only because the white tester was told the truth and the black tester was lied to. The hotel website regulations require the same information be provided to everyone, whether or not they are disabled. If a website lacks the information it is not discriminating by providing non-disabled people different information than disabled people; it treats everyone equally. The black tester in Havens suffered an injury his white counterpart did not. Ms. Laufer suffered exactly the same injury a non-disabled visitor to the hotel website would suffer.

Of course in theory the information might have been more meaningful to Ms. Laufer than to a non-disabled person² who did not need the information. But since the regulation itself does not distinguish among users we have to turn back to the Supreme Court’s inquiry – what is “injury in precisely the form the statute was intended to guard against?” That injury is denial of equal access to goods, facilities, services and so on because of a disability. Someone who does not intend to visit a hotel cannot suffer that injury no matter what they find or do not find on the hotel website.

Laufer advocates will say that this is too narrow a definition of ADA injury; that access to the information itself is protected by Title III and so denying her the information is an injury. The problem is that §12182(a) only prohibits “discrimination on the basis of disability” in access to goods, services, etc. The absence of information on a hotel website is not discrimination on the basis of disability because no one, regardless of disability, has access to information that simply isn’t there.

The last thin reed upon which a pro-Laufer argument can be made is that although the lack of information is not discriminatory in the sense that some get the truth and some don’t, it is discriminatory because it offends the dignity of a disabled person in a way that it doesn’t offend the dignity of a non-disabled person. The first flaw in this argument is the assumption that those with disabilities are necessarily more sensitive to implicit slights against them than non-disabled persons might be. Someone with a brother, child or parent who is disabled may well be just as offended by the perceived disrespect in a website that lacks information on accessibility as a person who is themselves disabled. For this very reason it makes no sense to say the ADA was intended to protect the dignity of those with disabilities in a way that is disconnected from their access to goods, services and facilities. Surely, if Congress intended to make an implied assault on the dignity of a disabled person illegal it would have said so, rather than prohibiting discrimination in access to goods and services.

In addition, the notion that Laufer suffered a “dignitary injury” when she could not find accessibility information fails to consider the nature of the dignitary injury suffered by someone who is a victim of discrimination. The black tester in Havens was not merely lied to – he was lied to because of his race. Ms. Laufer, on the other hand, did not fail to get information because of her disability – she failed to get information because it was not there for anyone, disabled or not. The ADA has many aspects of affirmative action based on the idea that equality of access may require special treatment, but the justification is always equality of access. The fundamental rule is that those with and without disabilities must be treated equally, and it is no insult to the dignity of a person with a disability if they get equal treatment.³ Ms. Laufer never suffered an injury the ADA was intended to prevent and therefore lacks statutory standing. She certainly lacks constitutional standing as well, but a careful reading of Havens and the text of the ADA shows that the Court never has to get to the question of constitutional standing because Ms. Laufer was never a victim of the discrimination the ADA is intended to prevent.

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¹ A few places to start:

Stigmatic Injury, how the 11th Circuit got it wrong

Laufer v Looper – the death of tester standing

Laufer v Looper Ch. 2

Laufer Headed to Supreme Court: Tester Standing under Title III

² We’ll assume our non-disabled website visitor is not looking because they have a disabled associate, but has a purely academic interest.

³ Ms. Laufer would not know that her dignity was under assault if she did not know that buried in the Code of Federal Regulations is a requirement for some kinds of accessibility information. Comparing Ms. Laufer’s situation to victims of intentional discrimination is an insult to those the ADA and other civil rights statutes were meant to protect.

Quick Hits, Happy Holidays edition – ADA website litigation.

December 13, 2022 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Website Accessibility, Uncategorized Tags: ADA defense, Ariza v Coffee Beanery, Brooks v Boiling Crab, Gomez v Trinitas Cellars, Laufer v Acheson Hotels, Martinez v Gutsy, Michael Chillen, tester standing

I’ve been busy in the last few months putting what I learn from reading new decisions about the ADA and FHA to use for my clients; hence this delayed blog. A number of interesting decisions concerning ADA website litigation came out while I was busy on my day job, and I hope you don’t mind the delay in getting them to you.

Let’s just review the website as public accommodation issue.

It has now been more than 20 years since the Department of Justice first announced that in its view every business website was a public accommodation, even if the business was entirely on line. After all that time DOJ has still not been able to adopt regulations supporting its opinion and the courts remain deeply divided. A thorough discussion of the issue has been very helpfully provided by Judge Garaufis from the Eastern District of New York. I recommend reading the entire discussion, which is too long to repeat here, but his most useful observation occurs at the beginning of the discussion:

The sheer number of judges who, when presented with this statute, have diverged in their interpretations, tells this court that the plain language of Title III of the ADA is ambiguous as to whether standalone websites are covered entities under the statute.

Martinez v. Gutsy LLC., 2022 WL 17303830, at *3 (E.D.N.Y. Nov. 29, 2022). Without putting too fine a point on it, the split between the Circuits and the split between individual judges in different Circuits is something only Congress can really fix. Whether the next session of Congress will see action on legislation intended to clarify these issues is, of course, anyone’s guess.¹

My 2022 update on website accessibility litigation, which will be available here in a few weeks, has a complete summary of the agreements and disagreements, but the simple takeaway is that if you are defending a website accessibility lawsuit outside the Ninth Circuit you need to review the assigned judge’s opinions to know which way they are likely to rule. Know your judge before you make any strategic decisions on settlement or litigation.

And the Circuits remain split on tester standing in hotel website cases.

In Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 271 (1st Cir. 2022) the First Circuit has given us the most thorough discussion of tester standing since the Supreme Court’s decision in Transunion.(4) The Court recognized what I pointed out in my blog about Transunion; that is, that Transunion at least implicitly limits or even overrules Havens Realty. Unfortunatley, the First Circuit declined to go beyond recognizing the possibility, instead claiming that it was bound by Havens Realty as it interpreted it. The Court interpreted Havens Realty an holding that a denial of information to which one had a statutory right was sufficient to create Article III standing. Here is the Court’s summary of its thinking:

Under Laufer’s theory, she had a right to the information that she alleges Acheson didn’t give her. And the statute makes that denial of information discrimination against disabled persons and gives Laufer the right to sue in response. That Laufer had no intent to use the information for anything but a lawsuit doesn’t change things — she was still injured in precisely the way the statute was designed to protect.

(emphasis added) The First Circuit’s mistake is in the highlighted words above. Havens Realty was not a case about a right to information; it was a case about discrimination in the form of giving false information to someone based on race. In Havens Realty a black tester was given false information about the availability of an apartment. That violated the very specific provision in 42 U.S.C. §3604(d), which makes it unlawful:

(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

Being lied to because of race is different from simply not finding information on the internet that DOJ regulations require to be present. It is discrimination based on race, the kind of discrimination the Fair Housing Act was intended to make illegal. Not finding information on a website is not discriminatory because everyone, disabled or not, has a right to the same information. Ms. Laufer happens to be disabled, but there is nothing she claims that could not equally be claimed by a person who has no disability, and allowing non-disabled individuals to sue because they cannot find information about disability access to which they have no need is absurd. The ADA is not a statute that requires information, it is a statute that forbids discrimination. The black tester in Havens Realty was discriminated against because of his race. Ms. Laufer was not discriminated against at all, for she was treated the same as every other website use. Because the ADA forbids discrimination rather than requiring information she was not “injured in precisely the way the statute was designed to protect.”

The case will be taken to the Supreme Court, which can resolve what is now a split between the First and Eleventh Circuits on the pro-tester side and the Fifth and Tenth Circuits on the strict interpretation of standing side. It will almost certainly agree that testers like Laufer do not have standing while preserving its holding in Havens Realty that suffering from discrimination is in fact a concrete injury sufficient to satisfy Article III.

Franchise operations and the “nexus” requirement

Courts holding that Title III of the ADA does not apply to internet only businesses nonetheless recognize that Title III may apply to a website that has a “nexus” to a physical place of business. The nature of the required nexus isn’t perfectly clear, especially in the Eleventh Circuit, where the recent dismissal of the Winn-Dixie case as moot took away the most complete explanation of the doctrine. In Ariza v. Coffee Beanery, Ltd., 2022 WL 17333106 (S.D. Fla. Nov. 29, 2022) Judge Dimitrouleas considered the issue in the context of a franchisor operating a website that served a variety of functions for the chain of physical stores operated by its franchisees. The Court first noted that unlike other franchise cases this one did not consider whether the franchisor might be liable for ADA violations of its franchisees. Control of physical places of business was not the issue, “nexus” was. The Court then considered both why Winn-Dixie, considered as persuasive if not authoritative, and the Eleventh Circuit’s decision in Haynes v. Dunkin’ Donuts LLC, 741 F. App’x 752 (11th Cir. 2018) indicated the website might create “intangible barriers” to accessing the physical stores.

Because the case was decided on a Motion to Dismiss and the discussion does not go item by item through the plaintiff’s allegations it isn’t clear whether this decision will stand up to an exploration of the facts. The allegations discussed in the opinion all concern on-line shopping, and while the website offers the same goods as on-line stores it isn’t clear that overlapping inventory is the kind of nexus that creates an intangible barrier to access to a physical store. There did not seem to be any claim that features allowing a customer to find a local store or with information about local stores was missing. If the case does not settle it may provide some additional insight into when a franchisor website has the necessary nexus to franchisee physical stores.

Nexus is a real requirement

Langer v. Am. Automobile Assn., Inc., 2022 WL 16838795 (S.D. Cal. Nov. 9, 2022) stands for the simple proposition that where a “nexus” is required between a website and a physical place of business as it is in the Ninth Circuit that “nexus” is more than mere common ownership. The Court dismissed the case because the plaintiff did not allege that the deficiencies in the website somehow affected his access to physical AAA locations. The case is also interesting because it was brought entirely under California state law. California courts have confirmed that California’s accessibility laws incorporate the same limitation as Title III of the ADA as interpreted by the Ninth Circuit; that is, there must be a nexus to a physical place of business.²

There are more ordinary standing issues that arise in ADA litigation as well.

Credible standing is a problem in litigation over accessible websites. Most commercial websites are in the online commerce business, and so anyone anywhere might plausibly be interested in their goods and services even if that person claims to be interested in an implausible variety of goods sold by other websites. If the allegations of standing survive a motion to dismiss most defendants will be compelled by economics to settle because the cost of litigating website accessibility is high. One solution is to stay all discovery except standing discovery as Judge Caproni did in Tavarez v. Moo Organic Chocolates, LLC, 2022 WL 17094631, (S.D.N.Y. Nov. 21, 2022). She wrote:

Granting Plaintiff leave to amend would not necessarily be futile because the facts contained in the PSAC, if accurate, establish standing. That said, the Court finds Plaintiff’s allegations, while not quite the “mad-lib” allegations that were present in Calcano, not to be particularly plausible. Accordingly, the Court will grant Plaintiff’s motion to amend the Complaint but will also stay all discovery other than jurisdictional discovery directed to whether Plaintiff has Article III standing.

It is easy to read the skepticisim in this opinion, and requesting a stay often, in my experience, fails to resonate with judges who have no objection to serial litigation or have not experienced the volume needed to generate skepticism about the motives of the plaintiffs and their lawyers. Still, this case can be a model for how to attack standing before litigation expenses are completely out of hand.³

Litigating the hell out of a website accessibility case.

Valerie Brooks is a serial filer of website accessibility lawsuits. Boiling Crab Franchise Co. LLC is a defendant that apparently decided enough is enough and is putting Ms. Brooks to the test rather than paying what was probably a relatively modest amount to settle. Their disputes concerning discovery are discussed in Brooks v. Boiling Crab Fran. Co., LLC, 2022 WL 16856257 (E.D. Cal. Nov. 10, 2022). Defendants with the will and financial resources to fight will find in the decision a useful outline of the discovery that might help defend this kind of suit:

A demand to examine the computer and software allegedly used to access the website in order to test the claim that the software could not read the website
A demand to depose the plaintiff’s expert to determine what is supposedly wrong with the website
Early retention of defense experts both to consult and ultimately testify for the defense.

It is notable that the Court was not willing to force Ms. Brooks to respond to interrogatories detailing the specific problems she supposedly encountered on the ground that she lacked the necessary technical expertise. She will presumably be deposed on these issues and may ultimately be found not to be credible, but the underlying problem is signficant. A plaintiff who is not a serial filer isn’t likely to take notes about each accessibility problem they encounter and be able to explain it months or years later. On the other hand, it appears some serial filers visit websites only briefly and then let their lawyers commission a report on supposed WCAG 2.x deficiencies that then form the basis for the complaint. Until credibility is a real issue; that is, until trial, the legitimacy of the complaint is unlikely to be resolved. That means that winning will always be far more expensive than settlement.

A sensible analysis of a nonsensical lawsuit.

Andres Gomez is a serial ADA litigant who files suits claiming that websites are not accessible to him because he uses a screen reader. In Gomez v. Trinitas Cellars, LLC, 2022 WL 2194658, at *1 (N.D. Cal. June 17, 2022) the Court granted a summary judgment in favor of the Defendant that should provide a guide for any defendant willing to spend the time and money required to win this kind of lawsuit.

The court began with a very sensible question – when does the inability for a screen reader to identify an image really matter? The defendant’s website had a logo that was not identified in a useful way for a screen reader. The court found that this was not a violation of the ADA because Gomez could not explain why not having a useful description denied him the equal use and enjoyment of the website or deterred him from visiting again. The same analysis applied to social media logos because not knowing where those links lead had nothing to do with Gomez’ ability to access the winery and its goods and services.

Gomez’ complaints about low contrast text in the website presented a similar problem. Screen reader software does not care about contrast – it only looks at the code for the text, not its color. As a user of screen reader software Mr. Gomez was unaffected by low contrast text.

There were more substantive issues concerning menus that Gomez claimed could not be read by a screen reader. Here the defendant adopted the kind of approach necessary to defeat technical claims. The defendant’s expert not only opined that the supposed defects did not exist, they also produced a video showing how screen reading software could in fact identify and make the menus usable.

I’m confident the defendant could have settled this lawsuit for far less than it cost to win it, but the only way the end abusive serial litigation is for defendants like this one to invest in victory. Those who are tired of paying off plaintiffs and lawyers who abuse the ADA will find in this decision an excellent guide to how these cases can be won.

Personal jurisdiction over website operators.

Crouch v. Ruby Corp., 2022 WL 16747282, at *7 (S.D. Cal. Nov. 7, 2022) is not a Title III case, but has an excellent discussion of personal jurisdiction over website operators whose websites are “present” everywhere in the world but may not do business everywhere in the world. Defendants wanting to raise a personal jurisdiction defense will find it useful, but most commercial websites do enough business in all 50 states to satisfy the famous International Shoe requirements. In this case the defendants won what looks like a temporary victory since it appears the plaintiff will be allowed to conduct jurisdictional discovery and is likely to find out that the website, which matches individuals with a mutual interest in sex, has plenty of customers in California.

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¹ For more information about the pending legislation that will certainly be re-introduced in the next session of Congress as it has been for the last three see https://www.duckworth.senate.gov/news/press-releases/duckworth-sarbanes-introduce-bicameral-legislation-to-help-make-websites-and-software-applications-accessible-for-americans-with-disabilities

² See, Martinez v Cot’n Wash, Inc., 297 Cal. Rptr. 3d 712, 715 (Cal. App. 2d Dist. 2022), review denied (Nov. 9, 2022)

³ For an example of an even more skeptical judge see Velazquez v. Everlast Worldwide, Inc., 2022 WL 16745767 (S.D.N.Y. Nov. 7, 2022) in which the Court raised the standing issue sua sponte before the defendant had even answered. Finding the allegations deficient the Court ordered the plaintiff to file an amended complaint curing the defects to avoid dismissal.

(4) Those interested in an analysis of the relevant cases can review my blogs:

Tester standing under the ADA – Getting it wrong, getting it right, and an interesting but irrelevant analysis. Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan, Laufer v Looper – the death of tester standing, and not just in ADA cases.