Refining Harm in Web Accessibility Cases: Harty v. West Point Realty

I Missed It...

Each morning, my (cough, overpriced, cough) Lexis account gives me a report on all of the new web accessibility cases. I have the first alert set up pretty broadly to first catch every ADA case.

((access! /5 website) or (inaccess! /5 website)) and americans /4 disabilities

And if any Unruh-only cases slip through the first alert, I have a second alert to catch them as well.

disab! and unruh /20 website

Of course, no filter is perfect. If I set it to catch more web accessibility cases, I’ll end up with a lot more bycatch—cases that I never intended to get (e.g. prisoner cases alleging that online resources are not accessible from the prison library). And if I set the filter to be more selective, there’s a good chance I’ll miss important cases entirely.

Until now, my set of alerts has worked pretty well. But it failed this last month to catch an important case, Harty v. West Point Realty, Inc., 2022 U.S. App. LEXIS 7107 (2nd Cir. 2022). I found out about the case from my friend and business colleague Greg Rogers at Outlook Business Solutions. He learned about the case from reading the latest Top Tech Tidbits for April 7. They reported on a blog post from Minh Vu at Seyfarth Shaw and she was the first person to report on the case. That's quite a few levels of hearsay, but in this case it turned to be entirely true as the case was then easy to find. Minh and her team at Seyfarth Shaw are well-known in the ADA legal bar; Minh was one of the attorneys overseeing the Civil Rights Division during the George W. Bush Administration. I worked with Minh at that time although she was many levels above me. I respect her and her team a lot and they did a great job finding and reporting on this case.

And it's a very important case because it's a Second Circuit case. That means that it needs to be followed by all of the federal district courts in New York (currently the most popular jurisdiction for ADA web accessibility cases). Last month's decision in Laufer v. Arpan LLC, 2022 U.S. App. LEXIS 8270 (11th Cir. 2022)(a decision on almost the exact same issue) is very important because it's an Eleventh Circuit case. This means that it needs to be followed by federal district courts in Florida, which is also a favorite forum for web accessibility cases.

Harty v. West Point Realty (2nd Cir. 2022)

The facts in Harty v. West Point Realty are the same as every other hotel web reservation case. A plaintiff visits a hotel’s website but cannot discern from the room description whether the accessibility features in the hotel room meet his needs. The plaintiff then files a lawsuit asserting that this lack of adequate descriptions violates the Department of Justice’s 2010 ADA regulations that require hotels to “identify and describe accessible features in the hotels and guest rooms offered through its reservation service…”. Last week, I discussed Laufer v. Arpan LLC, 2022 U.S. App. LEXIS 8270 (11th Cir. 2022), which was based on exactly the same facts. And, like the Arpan case, the central issue in the Harty case was whether the plaintiff suffered an “injury” when they visited a website of a company that allegedly violated the ADA even though they had no intention of patronizing that company.

The Second Circuit in Harty and the Eleventh Circuit in Arpan came to different answers to this question. Both decisions were based on the same legal foundation: the Supreme Court’s decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). I think both courts would agree with the Second Circuit’s clear summary of the TransUnion decision as, “a plaintiff has standing to bring a claim ...  following a statutory violation only when he can show a current or past harm beyond the statutory violation itself.” Harty, at *10 (citing TransUnion, 141 S. Ct. at 2204-07).

Attentive readers of this blog may recall the TransUnion opinion as I discussed it at length back in September. I complained back then that I felt a touch uncomfortable siding with Justice Kavenaugh's common sense opinion-- and suggested that it might be a useful tool in web accessibility cases. Fast forward six months and both the Second Circuit and Eleventh Circuit agreed with me! In a nutshell, a plaintiff has to show some kind of actual harm in the traditional, common sense way—and not just a violation of the law as stated by Congress. This syncs well with my simplified “no harm no foul” version of standing.

The Difference Between Harty and Arpan Comes Down to One Word: Drama

In Harty and Arpan, we have two appellate courts confronting the same type of case and finding an injury in one but not in the other. Are the Second Circuit and Eleventh Circuit completely at odds with each other in their interpretations of what constitutes “harm”? Are we facing a huge showdown in the Supreme Court? Nope. The difference in the outcome of the decisions is based on the injuries that the plaintiff alleged in their complaints.

  • “Emotional Injury” are Still Injuries-- at Least in the 11th Circuit. In Arpan, the plaintiff alleged that she suffered an “emotional injury” of "humiliation, embarrassment, and frustration" upon seeing a web page without an adequate accessible room description. Yes, I admit, that sounds extreme; unless Ms. Laufer is prone to random outbursts of crying and histrionics, this allegation is a bit far-fetched. But it’s enough to constitute a harm in the 11th And had Mr. Harty made a similar allegation in his complaint, I think the 2nd Circuit would have had a harder time dismissing his complaint.
  • Testers, Vague Intentions and “Information Injuries” Don't Count -- at Least in the 2nd Circuit. In Harty, the 2nd Circuit  zeroed in on the lack of a clear traditional injury. Mr. Harty was a self-proclaimed tester who routinely visited websites just to see if they violated the ADA. His complaint stated that he intended to use the website to reserve a room “in the near future” and that he was deprived of the information needed to make meaningful choices for travel. The court deemed these as vague “maybe someday” allegations insufficient to constitute an injury. I don’t think the 11th Circuit would have taken a different course if it was asked to dismiss a similar complaint.

This slight difference in the wording of the complaint gets one case kicked out while the other case can proceed forward. This may strike some readers as hyper-technical and a strange way for the courts to dispense justice when the underlying facts in both cases are almost exactly the same. Obviously, it's a warning to plaintiff attorneys to be very careful and thorough when writing complaints! But the Second Circuit made clear that Mr. Harty's complaint wasn't dismissed with prejudice-- so all he has to do is identify an actual harm (e.g. an emotional injury) and refile his complaint. All that Mr. Harty has to do is to evince the kind of agonizing pain of a professional soccer player trying to draw a foul on his opponent and he may well sail past the motion to dismiss.

So it Pays to Be a Drama Queen? Maybe Not…

Last month, I criticized the Eleventh Circuit’s analysis in Laufer because it conflated (1) the real harm of being denied an accommodation needed to access a business and (2) the emotional harm from the denial of an accommodation in the abstract. A person suffers a real harm when they book a hotel room believing that it is accessible when it is not—and then can’t navigate his wheelchair into the bathroom. In that case, it's clear that the inadequate room description caused harm in the form of booking an inaccessible room, bypassing other more accessible rooms, and, of course, the harm of not getting an accessible room. It's less clear whether that same person suffers an injury based only on seeing an inadequate room description on a website. Confusing those types of injuries was at the heart of my criticism of the court’s analysis of its earlier decision in Sierra v. City of Hallandale Beach, 996 F.3d 1110 (11th Cir. 2021).

Let’s ignore my criticism and put aside Sierra for a moment. In Arpan, the Eleventh Circuit viewed an allegation of "humiliation, embarrassment, and frustration" as enough of an “emotional injury” to confer standing. This makes sense to me; being shockingly offensive does pass the sniff test of what constitutes a traditional “harm." I don’t think this means that it pays to be a drama queen in website accessibility litigation, however. Yes, Ms. Laufer will get past the motion to dismiss. But that’s a very low bar—it just reflects what was alleged by Ms. Laufer's attorney in her complaint. She still needs to get past discovery and prove that she actually suffered that injury if she wants to prevail at trial. And, unless she is an exceptionally good actress, I don’t see a court or a jury believing that performance.

Copy of Opinion


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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