Can the 11th Circuit hold back the tide as King Cnut famously failed to do?² In Laufer v. Arpan LLC, 2022 WL 906511 (11th Cir. Mar. 29, 2022) the 11th Circuit disagreed with the Fifth, Tenth and Second Circuits concerning the injury sufficient to satisfy the standing requirements in Article III of the Constitution. If the case goes to the Supreme Court the 11th Circuit is likely to get its feet wet on Article III standing, but of more interest is the Court’s failure to consider whether the plaintiff had even suffered a statutory injury; that is, did she suffer the kind of injury Title III of the ADA was intended to prevent? If there was no statutory injury then the question of constitutional injury never arises. More
Laufer v Looper
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).