Having standing to sue under Title III of the Americans with Disabilities Act (ADA), two U.S. circuit courts have come to opposing conclusions where the plaintiffs alleged no material harm and said they did not had no intention of visiting the hotels whose websites were subject to. of their accessibility lawsuits. The courts have based their decisions on the same case law of the United States Supreme Court and on almost identical facts.
After the decision of the United States Supreme Court in Spokeo, Inc. vs. Robins578 US 330, 340 (2016), courts have decided a number of cases on the issue of standing vis à vis “concrete harm”, which is “real and not abstract” harm. Spokeo explained that a mere violation of the law resulting in no such concrete harm means that there is no case or controversy over which a federal district court can assert jurisdiction. This is clearly an issue in Title III cases against public housing: if a plaintiff can demonstrate a relatively straightforward technical violation of the myriad accessibility guidelines, but the violation has not caused harm concrete to the particular plaintiff, the plaintiff should, according to the argument, lack standing under Spokeo to pursue a claim and the suit should be dismissed. Recently, two circuit courts came to different conclusions in cases that the lower courts dismissed for lack of standing for failure to allege concrete harm.
In Laufer vs. Arpan LLC, 2022 US app. LEXIS 8270 (11and Cir. 022), plaintiff sued a hotel under Title III for failing to provide required information about accessible hotel features on its website as required by 28 CFR 36.302 (Reservations Rule). The purpose of the Reservation Rule is to provide potential guests with disabilities with enough information about a hotel’s accessibility features to allow them to assess whether the property is accessible for their specific limitations. The trial court dismissed the case, finding that the plaintiff suffered no concrete harm because she was a self-proclaimed “tester” who had never intended to visit the hotel and that, by therefore, the alleged lack of accessibility-related information did not cause him prejudice. .
The Eleventh Circuit vacated, finding that because plaintiff alleged that she suffered “frustration and humiliation” as a result of defendant’s alleged violation of Title III, she had standing to sue in under Article III. The Eleventh Circuit relied heavily on the Supreme Court’s decision in TransUnion LLC vs. Ramirez, 141 S.Ct. 2190, 2204 (2021), as well as a recent case she decided before Trans Union, Sierra v. Town of Hallandale Beach, 996 F.3d 1110, 1113 (11th Cir. 2021). In Sierra, the Eleventh Circuit held that the plaintiff correctly alleged stigmatic harm because he claimed he was personally and directly subjected to discriminatory treatment when the defendant posted videos on his website that he accessed but he could not understand; therefore, the plaintiff had suffered concrete and specific harm and had standing to sue.
The Supreme Court ruled in Trans Union that “under Article III, damage in law is not damage in fact. Only plaintiffs who have been materially harmed by a defendant’s violation of law can sue that private defendant for that violation in federal court…. Article III grants federal courts the power to repair the harms that defendants cause to plaintiffs, not an unfettered power to hold defendants liable for violations of law.
The Eleventh Circuit recognized that Sierra can be read two ways and only one survives the Supreme Court ruling Trans Union. He noted, “Sierrainterpreted broadly, would violate Trans Unionthe command. To find concrete harm whenever a person personally experiences discrimination in violation of federal law would be to equate violations of the law with concrete harm. For better or for worse, we can’t do that.
Try to avoid the rollover Sierra, the Eleventh Circuit has held that the emotional injury resulting from unlawful discrimination is sufficient to constitute concrete injury. He found this to be consistent with Trans Union because it reflects the independent determination of the Eleventh Circuit in Sierra that the emotional hurt caused by discrimination is a concrete evil that exists in the real world. Sierra, however, involved a claim under the Rehabilitation Act (which provides for compensatory damages) and this court based its decision on the fact that this plaintiff’s claim of emotional harm met the requirement of “concrete and particular” because “plaintiffs may recover damages for emotional distress for a violation of Section 504 of the Rehabilitation Act. No such claim was present in Laufer and damages for emotional distress were not available.
the Laufer The tribunal held that the claimant’s claims satisfied Article III under the narrower interpretation of Sierra, because the plaintiff claimed not only that she had suffered unlawful discrimination, but also that the discrimination had resulted in “frustration and humiliation” and a “sense of isolation and segregation”; therefore, she rightly pleaded concrete stigmatic injury. It seems that in the Eleventh Circuit, plaintiffs may only have to state that they felt frustrated by the alleged obstacles they claim to have encountered in satisfying Article III, even if they did not have no intention of returning to the site of obstacles, will not face direct obstacles and can not recover from the alleged emotional injury.
On the other hand, the second circuit, in Harty vs. West Point Realty, Inc.20-cv-2672, 2022 WL 815685 (2d Cir. Mar. 18, 2022), affirmed the dismissal of a claim filed under the same booking rule implicated in Laufer. The Second Circuit held that the plaintiff had insufficiently alleged concrete harm and, therefore, lacked standing to sue. The Second Circuit (like the Eleventh Circuit) relied heavily on the Supreme Court’s decision Trans Union and determined that the Supreme Court had overturned previous Second Circuit rulings on standards for establishing standing to sue (generally required that a plaintiff allege a risk of harm to the underlying practical interest that federal law sought to protect).
Similar to the applicant in Lauferthe applicant in Harty visited the hotel’s website with no intention of visiting the hotel; however, he alleged that he perhaps can use the website to book a room at the hotel in the future. He alleged that he frequently visited the hotel’s website to determine whether he was complying with the reservation rule. The Second Circuit determined that since the plaintiff had no intention of traveling to the immediate vicinity of the hotel, he could not allege (despite the alleged lack of information on the hotel’s website ) that his ability to travel had been impaired in a manner that caused him the material harm necessary to have standing to sue. Alleging a breach of the reservations rule is not sufficient in itself to confer standing to sue after TransUnion, the second circuit took place. He also determined that the district court did not abuse its discretion by disregarding an affidavit that the plaintiff had submitted in a seemingly obvious and late attempt to bolster his complaint’s allegations of standing for to act.
The Second Circuit has jurisdiction over Connecticut, New York, and Vermont, and the Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia. In the absence of Supreme Court or other guidelines on website accessibility, claims will continue to challenge companies.