On October 5, 2022, at Laufer v Acheson Hotels LLC, the United States Court of Appeals for the First Circuit reversed a lower court’s dismissal of a lawsuit against Acheson Hotels, LLC, which operates an inn on the south coast of Maine. With this reversal, the First Circuit addressed a matter of first impression and furthered a divided Circuit on when, following the Supreme Court’s decision in TransUnion LLC vs. Ramirez, 141 S.Ct. 2190 (2021), a plaintiff may sue based on informational injury. In Trans Union, the Supreme Court distilled its precedent on constitutional value in five words: “No concrete prejudice, no quality”. In this recent decision, the First Circuit determined that Plaintiff had established both.
Lower court impeachment for lack of standing
In her complaint, Deborah Laufer alleges that when she visited the hostel’s website, it did not identify accessible rooms, provide an option to book accessible rooms, or provide sufficient information about hotel features. hostel accessibility. She also claims that this information was missing on third-party booking sites. Laufer argues that these information gaps violated regulations promulgated under the ADA requiring descriptions of accessible features. She also alleges that she experienced frustration and humiliation because of this inadequate information.
The trial court determined that Laufer’s admitted status as a “tester” and not a traveler — for the sole purpose of inspecting the hotel’s website for ADA compliance — was fatal at his request. Citing the Supreme Court standard in Spokeo vs. Robins, 136 S.Ct. 1540 (2016), the lower court noted that to meet the minimum constitutional capacity requirements of Article III, a plaintiff must show factual harm attributable to the defendant and capable of being repaired by a favorable decision.
As stated in Spokeoa prejudice is in fact “an attack on a legally protected interest” which is “concrete and precise” and “real or imminent, and not conjectural or hypothetical”. » Spokeo at 1548, Lujan c. Defs. From wildlife, 504 U.S. 555, 112 (1992). In Laufer’s case, with no real visitation plan to Maine, the trial court found that his injuries were neither concrete nor imminent. The district court therefore dismissed Laufer’s case for lack of standing. Laufer appealed.
First Circuit Enforcement of Recent Supreme Court Guidelines
On appeal, Acheson argued that the Supreme Court’s decision in Trans Union (which was decided after the lower court rejected it) confirmed that Laufer could not establish standing. In Trans Union, the Supreme Court explained that a claim for informational harm must identify the “downstream consequences” or “adverse effects” resulting from the alleged information deficiency. Acheson claimed that Laufer made no such display.
The first circuit disagreed. Even under the strict standard of Trans Union, the First Circuit found that Laufer had demonstrated sufficient prejudice to have standing to sue. Meeting the Supreme Court’s standard, “Laufer’s feelings of frustration, humiliation and second-class citizenship are indeed ‘downstream consequences’ and ‘adverse effects’ of the informational injury she suffered. “
The first circuit estimated that “[d]inflammatory harm or stigmatic harm caused by discrimination has long been considered concrete harm in fact, even without informational harm”, and “the Supreme Court has repeatedly stated that the denial of information to which plaintiffs are legally entitled may be concrete harm in fact.” For these reasons, the First Circuit determined that the district court had jurisdiction under Article III over the case because Laufer had met the bar of constitutional capacity.
The Growing Circuit Split on Informational Injury Quality
The First Circuit’s decision deepens the growing division among appellate courts on the issue of constitutional standing in website accessibility cases, creating questions about how to apply the Trans Union decision. As noted in the First Circuit’s decision, three other United States Circuit Courts of Appeals came to opposite conclusions, finding that the plaintiff could not establish standing. See Harty vs. W. Point Realty, Inc.28 F.4th 435, 444 (2d Cir. 2022) (no statute); Laufer versus Looper22 F.4th 871, 879–881, 883 (10th Cir. 2022) (idem); Laufer v. Mann Hosp. SARL, 996 F.3d 269, 273 (5th Cir. 2021) (idem). And in an unprecedented judgment without analysis, another found no status. See Laufer v. Alamac Inc.no. 21-7056, 2021 WL 4765435, at *1 (DC Cir. September 10, 2021).
On the other hand, the Eleventh Circuit determined that a plaintiff testing websites for accessibility can show her position based on her informational injuries. See Laufer vs. Arpan LLC, 29 F.4e 1268, 1273-74 (11e Cir. 2022). Notably, Laufer — a serial litigant who has filed hundreds of ADA-compliant lawsuits across the country — was the plaintiff in nearly those cases.
All of these recent appeal decisions, except one, were issued as a result of Trans Union and wrestle with Supreme Court guidelines when considering constitutional standing. As discussed in our previous articles following Spokeo and Trans Union, the application of Supreme Court precedent regarding concrete harm and constitutional value are conundrums that lower courts have had to grapple with. This issue is critical not only in website accessibility cases, but in other class actions involving credit reporting, consumer and employee data privacy, data breaches and cybersecurity incidents, and other cases involving alleged breaches of statutory rights.
Differing decisions have repeatedly referred this issue to the Supreme Court, and the First Circuit’s decision in Laufer will likely contribute to this trend. We expect the Supreme Court to regain its constitutional status in a future term. In the meantime, the current circuit split will continue to confuse litigants and lower courts, and the future of informational harms class actions will remain uncertain. As a result, Plaintiffs will continue to bring, and Defendants will continue to defend, class actions based on informational injuries where the concrete nature of the alleged harm is fully debated.