First Circuit Court of Appeals Weighs in on ADA “Tester” Standing Split


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By: Alexandra Held and Jennifer Markowski

A panel for the First Circuit Court of Appeals ruled, in Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022), that a “tester plaintiff” has standing under Article III of the U.S. Constitution to bring a claim against an inn under the Americans with Disabilities Act (ADA) for failure to provide the requisite information about the property’s accessibility on its reservation portal. Weighing in on a question that has recently divided the federal circuit courts, the First Circuit held a disabled plaintiff has standing to sue a hotel for lack of ADA-compliant information on its website, even though she never intended to book a stay.

The Americans with Disabilities Act and The Reservation Rule

Congress enacted the ADA to protect the “many people with physical or mental disabilities [who] have been precluded from [participating in all aspects of society] because of discrimination.” In part, the ADA serves to ensure disabled individuals have “an opportunity to participate in or benefit from” a facility or an accommodation.

The Attorney General has promulgated regulations to carry out the ADA, one of which pertains to hotel reservations. The “Reservation Rule,” codified at 28 C.F.R. § 36.302(e)(1), provides that a “public accommodation” operating a “place of lodging” must “with respect to reservations made by any means… [i]identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” When a public accommodation discriminates against a disabled person, the ADA and the Reservation Rule permit that individual to bring an enforcement action in federal court.

Recent Circuit Split Concerning ADA “Tester Plaintiff” Standing

Plaintiff Deborah Laufer is an ADA “tester” who has filed hundreds of ADA-related suits across the country. Essentially, Ms. Laufer “tests” whether hotel websites have information about accessible facilities as required by the DOJ’s Reservation Rule.

The circuit courts have split on whether ADA “tester plaintiffs” have standing under Article III of the Constitution, which instructs federal courts to hear only genuine disputes between adverse parties. Courts particularly clash on whether an ADA “tester”—who has no intention of booking a stay—suffers a concrete and particularized injury sufficient for standing to sue in federal court.

In several circuits, “no standing” has recently ruled the day. In 2021-2022, the Second, Fifth and Tenth circuits found that because the respective plaintiffs never tried to book nor intended to book a room at each hotel, they had not suffered a concrete injury from the website’s lack of information. However, in 2022, the Eleventh Circuit concluded the plaintiff had standing. Notably, Ms. Laufer was the plaintiff in three of the aforementioned cases.

First Circuit Supports ADA “Tester Plaintiff” Standing

Acheson Hotels, LLC, operates The Coast Village Inn and Cottages in Wells, Maine. Ms. Laufer contends she visited the hotel’s website and discovered it did not identify accessible rooms, provide an option for booking accessible rooms, or provide sufficient information for her to determine whether rooms and other features of the hotel could accommodate her special needs. Accordingly, Ms. Laufer sued Acheson in the District of Maine for violation of the Reservation Rule.

Acheson moved to dismiss, arguing that Laufer’s hundreds of other ADA suits indicate she had no intention of booking a room at its inn, and that she accordingly lacked Article III standing to bring her suit. The district court agreed and dismissed the case for lack of standing. Ms. Laufer subsequently appealed.

The First Circuit disagreed, finding that whether Ms. Laufer intended to book a stay does not impact the standing analysis. The court pointed to the long-established principle that the “denial of information to a member of a protected class alone can suffice to make an injury in fact—that person’s intended use of the information is not relevant.” The panel further noted an informational injury like the one suffered by Ms. Laufer is “precisely the type of harm Congress and the regulation sought to curb—the unequal ability to know what accommodations a person with disabilities can take advantage of.”

Given the circuit split that has emerged concerning standing of ADA tester plaintiffs, the issue may eventually reach the U.S. Supreme Court. In the meantime, hotels and other lodging places may want to consult with counsel to determine what steps should be taken, if any, to ensure that their websites provide the necessary information for disabled persons to determine whether the properties’ features accommodate their individual needs.

For further information or guidance, please contact Jennifer Markowski at, Alexandra Held at, or your local FMG attorney.