Testing the Limits of Standing

It may seem odd to publish a blog post late Friday afternoon. However, just yesterday, I presented at the Accessing Higher Ground Conference and provided a legal update on web accessibility litigation. This is a presentation I give on a regular basis and I review the relevant laws that affect web accessibility (e.g. the Americans with Disabilities Act and California's Unruh Act) but focus the presentation on new developments in litigation. One of the issues that I spent some time on was "standing to sue" in web accessibility litigation and whether testers could sue.

And then, just this morning, my Lexis feed included the most remarkable case on this exact issue. So I felt compelled to write something up today.

Why Should I Care About This Issue?

As most people know, web accessibility litigation is exploding. While accurate numbers are hard to come by and differ depending on which source is checked-- and we will never know how many cases are resolved before a complaint is filed in court-- I conservatively estimate the total to be over 10,000 complaints a year.

Much of this litigation has been driven by plaintiffs who have no intention of becoming a customer of the organization that they are suing. This phenomenon first started being addressed in credit union cases, which were hit hard by web accessibility cases. Here's the typical scenario. A credit union provides financial services either within a small geographic area or to a select group of members (e.g. employees for a particular company). Then, a plaintiff from thousands of miles away and who is ineligible to become a member of the credit union sues them because their website was inaccessible. In almost every one of these cases, the courts have thrown these cases out because the plaintiff lacks "standing to sue." The reason is that, in order to bring a lawsuit, a plaintiff must have suffered an "injury," such as being being denied access to the company's goods and services. But when the plaintiff cannot show that they ever had any interest in those goods and services, they don't have standing. Griffin v. Dep't of Labor Fed. Credit Union, 912 F.3d 649 (4th Cir. 2019); Carello v. Aurora Policemen Credit Union, 930 F.3d 830 (7th Cir. 2019); Brintley v. Aeroquip Credit Union, 936 F.3d 489 (6th Cir. 2019).

But plaintiff attorneys are a clever bunch. Our legal system allows "testers" to sue organizations in some limited cases. In Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court held that testers could have standing to sue in Fair Housing Act (FHA) cases. In these cases, two testers (only one is a member of a racial minority group) express interest in buying or renting a home and typically they are steered to different neighborhoods or shown (or not shown) specific properties. While each tester actually has no interest in buying or renting a property, their disparate treatment can reveal the prejudices and different steering practices of a real estate broker. Simply not being provided the same opportunities and given the same information was enough of an injury to provide standing to sue under the FHA.

Whether violating a statute automatically creates an injury (like the Havens decision recognizes) is a tricky matter. For instance, simply violating the Fair Credit Reporting Act does not automatically give rise to an injury. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). And, as this is still an evolving area of law, it isn't entirely clear yet whether testers would have standing to sue in web accessibility cases.

  • On the one hand, the Americans with Disabilities Act (ADA) is a civil rights law like the FHA that is designed to eliminate historical inequities in our society.
  • On the other hand, recognizing standing for testers means that a plaintiff could sue hundreds (or even thousands) of companies without ever expressing an interest in becoming a customer of any of them.

We all know that, if you put two lawyers in a room, they would get into an argument over what to eat for lunch. So, it shouldn't be surprising that judges can't agree on whether testers should be bring web accessibility cases.

Let's look at two very recent cases-- one from just this morning! Both of these cases involve hotel online reservation systems (ORS), which are a variant of the usual web accessibility case. The Department of Justice regulations requires hotel ORS systems to identify accessibility features in the hotel and guest rooms. 28 C.F.R. § 36.302(e)(1). This is a little different from a typical web accessibility case where a plaintiff alleges barriers that make the site itself unusable. In hotel accessibility cases, there is usually no issue accessing the site-- instead, it is the contents of the site rather than the design of the site that is relevant.

Kennedy v. Nisha, Inc., 2020 U.S. Dist. LEXIS 170829 (M.D. Fla. Sept. 17, 2020)

Patricia Kennedy is a serial plaintiff and her name popped up frequently in my Lexis feed. She is a disability advocate and sues hotels if their ORS systems do not adequately describe the accessibility features at the hotel. One of the hotels she sued was owned by Nisha, Inc. Ms. Kennedy admitted that she had no interest in visiting the hotel. Not surprisingly, Nisha moved to dismiss the her complaint because she lacked standing to sue.

Rather than perform a careful application of law to the facts in Ms. Kennedy's complaint, the court simply noted that other web accessibility cases in its Circuit had concluded that standing existed, so it must too (frankly, the court's application of judicial precedent such as Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013) on this point is non-existent). You can almost feel the resignation and confusion on the part of the court in its conclusion

As the law currently stands, an ADA website "tester" can surf the internet from the confines of his or her own living room, or anywhere else in the world they happen to be located, and file ADA lawsuits against hotels throughout the country that they will never actually visit, or even hope to visit. The ADA "tester" receives nothing in return for his or her efforts, other than perhaps the satisfaction of knowing that a hotel's website — that they have never, and will never, visit — is ADA compliant. But the lawyers, on both sides, are compensated. Under such circumstances, one might ask, as a matter of practical common sense, whether an actual "case or controversy" really exists.

Perhaps this is what Congress intended when it enacted the ADA, or perhaps not. On one hand, it may be an efficient way of privatizing ADA enforcement. Rather than having to pay investigators and government lawyers to police hotel websites for ADA compliance, enforcement is instead conducted by uncompensated private ADA "testers" and their privately retained lawyers. On the other hand, the present situation may represent a step beyond what Congress intended, and one that is creating unnecessary litigation throughout the country. "Guidance is sorely needed in this arena." Price v. City of Ocala, 375 F. Supp. 3d 1264, 1272 (M.D. Fla. 2019).

Laufer v. Laxmi & Sons, 2020 U.S. Dist. LEXIS 216752 (N.D.N.Y. Nov. 19, 2020)

Patricia Kennedy isn't alone in her crusade to rid the world in lousy hotel ORS systems. Deborah Laufer is another name that pops up regularly in hotel ORS cases. And, among all the cases that touch on this topic, the Laufer v. Laxmi & Sons case that was filed just yesterday is probably the most thorough analysis I've yet seen on standing to sue. It also reflects a big split between decisions in the 11th Circuit (Alabama, Florida, and Georgia) and the Second Circuit (Connecticut, New York, and Vermont). As New York and Florida has historically been the most popular states for web accessibility litigation, this shouldn't be a surprise. Two states. Same question. Different answers.

While Deborah Laufer lives in Florida, she appears to like suing in upper New York state. Ms. Laufer has a physical disability and also considers herself a disability advocate, having filed approximately 500 cases (!) since October 2019, including approximately 60 cases in Upper New York State. Laxmi & Sons owns the Skaneateles Inn and maintains an ORS where the public can review information about the hotel and make reservations. Ms. Laufer visited the ORS and determined that it did not provide sufficient information about accessibility features and barriers at the Inn. Ms. Laufer has family in New York and expressed an interest in visiting Skaneateles but, without adequate information in the hotel's ORS system, she alleges she would be denied a choice in making travel plans.

Unlike the Nisha opinion, the court in Laxmi & Sons engaged in an extensive review of judicial precedent and concluded that testers do not have standing in web accessibility cases. Absent a genuine interest in utilizing the defendant's services, the hotel's failure to provide adequate accessibility information in its ORS amounted to only a "bare procedural violation, divorced from any concrete harm." Nisha, at *44 (quoting Spokeo, 136 S. Ct. at 1549).

While the Laxmi & Sons opinion is long and convoluted, I cannot help but feel that its opinion hinged on (1) the court's perception that web accessibility cases lacked an in-person, immediate injury and (2) the ease with which a plaintiff can file web accessibility cases. With regard to the first factor (immediacy of harm), the court noted that, in Havens, minority applicants were lied to and suffered a "direct" injury. Similarly, ADA testers who visit facilities and encounter physical barriers may have standing to sue because their injuries are "concrete" and highly particularized. By contrast, failing to provide adequate information in an ORS has no relevance to an ADA tester in a web accessibility case because they have no intention to visit the hotel. This bleeds into the second factor (ease of filing lawsuits), because the court then immediately notes

[The injuries] plaintiff complains of here; however, if the tester has no actual desire to use the ORS for any purpose, and the information required by § 36.302(e)(1) has no actual specific relevance to the tester beyond her generalized desire to find and redress ADA violations, those injuries are no more concrete or particularized than the injuries suffered by any disabled individual who happens to stumble across a noncompliant website while surfing the internet from the comfort of their home.... Unlike physical barrier cases—in which a tester must actually travel to and attempt to access the defendant's property, and allege a genuine intent to do so in the future, in order to allege standing—a rule allowing pure testers to sue websites for ADA violations "admits of no limiting principle," as it "would allow any aggrieved person to challenge any allegedly deficient website belonging to anyone in the country," entirely eviscerating the limitations on standing imposed by Article III.

The court then concluded,

The Court agrees with the approach taken by Harty, Hernandez and similar cases. This approach is most consistent with the Second Circuit case law on tester standing generally, as well as the District Court case law in this Circuit and the Circuit-level case law in other Circuits addressing ADA violations in the context of websites. All of this case law suggests that, to allege an injury-in-fact for standing purposes, a plaintiff challenging a website's ADA violations must demonstrate that she had a purpose for using the website that the complained-of ADA violations frustrated, such that any injury is concrete and particularized to the plaintiff.... And to establish a real and immediate threat of repeated injury, a plaintiff must demonstrate that her intent to return to the website to book a room, or at least to obtain information that would allow her to decide whether to book a room, is plausible.

And what about Ms. Laufer's allegation that she intended to use the Defendant's ORS system in the future for visiting Skaneateles? Because she had no intent of visiting New York at the time she visited the Defendant's ORS system, she did not suffer an injury prior to filing a complaint.

Concluding Thoughts

Both the Kennedy and Laufer opinions left me feeling unsatisfied. I think that Ms. Laufer did a much better job of articulating an injury beyond her tester status than Ms. Kennedy, yet Ms. Laufer's case was dismissed. Also, while I think that the Laufer opinion is much more well-reasoned, I think it reveals how courts are having difficult articulating why testers in web accessibility cases are different from testers in other settings. This is particularly revealing in the way that the Laufer opinion distinguishes FHA and ADA cases where a tester encounters discrimination in the real, physical world versus encountering barriers online.

While this split has not been recognized at the appellate level, it is shaping up to be another major split between the circuits in web accessibility case law.


Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.

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