On Monday, the United States Supreme Court agreed to hear a case concerning if a self-designated “tester” of the Americans with Disabilities Act reserves the right to sue hotels over alleged violations of the civil rights law.
In January, The DRI Center for Law and Public Policy filed an amicus brief before the US Supreme Court supporting certiorari review of the First Circuit’s erroneous holding in Laufer v. Acheson Hotels, LLC, a case involving a well-established circuit split on the requirements for Article III standing. The case arose from a private enforcement action filed under the Americans with Disabilities Act. An administrative regulation promulgated under ADA requires accommodations offering guest room reservations “by any means” to “[i]dentify and describe accessible features in the hotels and guest rooms[.]” Id. §36.302(e)(1). The plaintiff alleged that the defendant motel violated the ADA by operating a website offering room reservations without disclosing the required information.
The Center’s brief argues that the First Circuit incorrectly applied US Supreme Court precedent, specifically the Court’s more recent cases that directly address informational injuries and the question of when people are injured by deprivation of information to which the law entitles them. To find that a bare violation of a procedural right to information confers standing, the court was supposed to evaluate how this right relates to “both history and the judgment of Congress.” Spokeo, Inc. v. Robins, 578 US 330, 340–41, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). The court did not do so. Instead, the First Circuit assumed without analysis that a standalone violation of this procedural regulation requiring public disclosure of information about guest rooms inflicts injury and confers standing. Based upon its conclusion that this regulation is such a right, the First Circuit held that Ms. Laufer had standing because (1) the regulation was violated and (2) she experienced feelings of “frustration, humiliation, and second-class citizenry.”
This circuit split has the potential to harm the American economy and particularly small businesses in the accommodation industry. The accommodation subsector is a major player in the American economy. It was decimated by the COVID-19 pandemic. Women- and minority-owned businesses were particularly affected. Although Congress saw the wisdom in authorizing private enforcement of the ADA, it did not foresee the emergence of the internet and the digital era. It also did not envision ADA tester plaintiffs like Ms. Laufer. Lawsuits cost money and time. ADA enforcement actions filed by serial litigators harm small businesses. The costs and burdens of litigation are unwarranted where plaintiffs lack standing to sue. Disabled Americans are the largest minority group in the US. If every disabled person who is susceptible to hurt feelings and who wants to crusade for justice has Article III standing, the law of standing will be eviscerated.
DRI members regularly represent clients who must defend against the expansion of Article III standing. DRI members also represent businesses operating in the accommodation subsector of the American economy as well as other kinds of businesses subject to Title III of the ADA. The Center’s amicus brief was authored by Sarah Elizabeth Spencer of Christensen & Jensen, P.C., in Salt Lake City. The brief was quoted in an article published on Law360.com. More information can be found in the full article on this brief in the January issue of DRI’s The Voice newsletter.
Read the Full Brief (PDF)
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