First Circuit Court of Appeals Rules Website Tester Has Standing for ‘Informational Injury’, Deepens Circuit Divide

On October 5, 2022, in Laufer v. Acheson Hotels LLC, the U.S Court of Appeals for the First Circuit reversed a lower court’s dismissal of a suit against Acheson Hotels, LLC, which operates an inn on Maine’s southern coast. With this reversal, the First Circuit has addressed a matter of first impression and deepened a circuit split on when, following the Supreme Court’s ruling in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), a plaintiff can sustain a suit based on an informational injury. In TransUnion, the Supreme Court distilled its precedent on constitutional standing into five words: “No concrete harm, no standing.” In this recent decision, the First Circuit determined the plaintiff had established both.

The Lower Court Dismissal for Lack of Standing

In her complaint, Deborah Laufer alleges that when she visited the inn’s website, it didn’t identify accessible rooms, provide an option for booking accessible rooms, or give sufficient information about the accessibility features of the inn. She also claims that this information was missing from third-party booking websites. Laufer argues that these informational lapses ran afoul of 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 lower court had determined that Laufer’s admitted status as a “tester” and not a traveler — with an intent only to inspect the hotel’s website for ADA compliance — was fatal to her claim. Citing the Supreme Court’s standard in Spokeo v. Robins, 136 S. Ct. 1540 (2016), the lower court noted that, to meet the threshold requirements for Article III constitutional standing, a plaintiff must demonstrate an injury in fact that is traceable to the defendant and likely to be redressed by a favorable decision.

As set forth in Spokeo, an injury in fact is “’an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo at 1548, Lujan v. Defs. Of Wildlife, 504 U.S. 555, 112 (1992). In Laufer’s case, without a genuine plan to visit Maine, the lower court found that her injuries were not concrete or imminent. The district court thus dismissed Laufer’s case for lack of standing. Laufer appealed.

The First Circuit’s Application of Recent Supreme Court Guidance

On appeal, Acheson argued that the Supreme Court’s ruling in TransUnion (which was decided after the lower court’s dismissal) confirmed that Laufer could not establish standing. In TransUnion, the Supreme Court explained that a claim for informational injury must identify “downstream consequences” or “adverse effects” resulting from the alleged information deficit. Acheson asserted Laufer had made no such showing.

The First Circuit disagreed. Even under the stringent standard of TransUnion, the First Circuit concluded that Laufer demonstrated sufficient injury to have standing to sue. Satisfying the Supreme Court’s standard, “Laufer’s feelings of frustration, humiliation, and second-class citizenry are indeed ‘downstream consequences’ and ‘adverse effects’ of the informational injury she experienced.”

The First Circuit reasoned that “[d]ignitary harm or stigmatic injuries caused by discrimination have long been held a concrete injury in fact, even without informational injury,” and “the Supreme Court has repeatedly said that denial of information to which plaintiffs have a legal right can be a concrete injury in fact.” For these reasons, the First Circuit determined that the district court has Article III jurisdiction over the case because Laufer had met the bar for constitutional standing.

The Growing Circuit Split on Standing for Informational Injury

The First Circuit decision deepens the growing appellate-court divide on the question of constitutional standing in website accessibility cases, creating questions on how to apply the TransUnion decision. As noted in the First Circuit’s decision, three other U.S. Circuit Courts of Appeals have reached opposite conclusions, finding that the plaintiff could not establish standing. See Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022) (no standing); Laufer v. Looper, 22 F.4th 871, 879–81, 883 (10th Cir. 2022) (same); Laufer v. Mann Hosp. L.L.C., 996 F.3d 269, 273 (5th Cir. 2021) (same). And in a non-precedential judgment without analysis, another has found no standing. See Laufer v. Alamac Inc., No. 21-7056, 2021 WL 4765435, at *1 (D.C. Cir. Sept. 10, 2021).

On the other hand, the Eleventh Circuit has determined that a plaintiff testing websites for accessibility can show standing based on her informational injuries. See Laufer v. Arpan LLC, 29 F.4th 1268, 1273-74 (11th Cir. 2022). Notably, Laufer – a serial litigant who has filed hundreds of ADA compliance lawsuits across the country – was the plaintiff in nearly of these cases.

All but one of these recent appellate decisions were decided in the wake of TransUnion and grapple with the Supreme Court’s guidance when considering constitutional standing. As discussed in our previous posts in the wake of Spokeo and TransUnion, the application of Supreme Court precedent concerning concrete harm and constitutional standing are puzzles that lower courts have been left to parse. This question is critical not just in website accessibility cases, but in other class action matters involving credit reporting, consumer and employee data privacy, data breaches and cybersecurity incidents, and other cases involving alleged violations of statutory rights.

Divergent decisions have repeatedly brought this issue back to the Supreme Court, and the First Circuit’s decision in Laufer will likely contribute to this trend. We expect to see the Supreme Court wade back into constitutional standing in an upcoming term. In the meantime, the current circuit split will continue to trouble litigants and lower courts alike, and the future of class action litigation based on informational harms will remain unsettled. As a result, plaintiffs will continue to bring, and defendants will continue to challenge, class action claims based on informational injuries where the concrete nature of the alleged harm is the subject of substantial debate.

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