On October 5, 2022, the United States Court of Appeals for the First Circuit, which has jurisdiction over appeals from federal courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island, reversed the dismissal of a complaint brought against Acheson Hotels, LLC by Deborah Laufer, who in recent years has filed hundreds of lawsuits against businesses in the hospitality industry.
As previously reported by Barclay Damon on numerous occasions, Laufer is one of several “tester” plaintiffs targeting hotels, motels, and other places of lodging across the country. The lawsuits generally allege that the online reservation system for these properties—whether directly operated by the business or indirectly operated through third-party websites—fails to provide certain information concerning accessible features of the properties in violation of the ADA and other laws.
Laufer, who is disabled, alleged in her complaint that the website for Acheson Hotels, which operates The Coast Village Inn and Cottages in a small town on Maine’s southern coast, failed to identify accessible rooms, provide an option for booking an accessible room, or give sufficient information to determine whether any of the rooms were accessible to her. Laufer also alleged that she faced the same dearth of information when she visited the property’s online reservation system through 13 other third-party websites, including Expedia.com, Hotels.com, and Booking.com. Acheson Hotels filed a motion to dismiss Laufer’s complaint, arguing, among other things, that Laufer lacked standing to sue based on the fact that Laufer is a serial tester plaintiff who had no real intention of staying at the property. The district court agreed with Acheson Hotels and dismissed the case for lack of standing. Laufer appealed the district court’s decision to the First Circuit.
In order to have standing, which is a threshold, constitutional requirement, a plaintiff must establish that they (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. At issue on appeal before the First Circuit was the first prong of the standing analysis, i.e., whether Laufer suffered an “injury in fact,” which, according to US Supreme Court precedent, means “the invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.”
The First Circuit noted at the outset of its analysis that an injury need not be tangible to qualify as an injury in fact, so long as it is concrete. In that regard, the First Circuit, relying on US Supreme Court precedent, stated that (1) “the denial of information that a plaintiff is statutorily entitled to have can make for a concrete injury in fact,” and (2) “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.” Because Laufer alleged the denial of information required by the statute and accompanying regulations, the First Circuit ruled that Laufer sufficiently alleged an injury in fact, regardless of whether she intended to use that information (other than for her lawsuit) or book a room at the property. The First Circuit also found that “Laufer’s feelings of frustration, humiliation, and second-class citizenry are indeed ‘downstream consequences’ and ‘adverse effects’ of the information injury she experienced.” Put simply, the First Circuit concluded, “Laufer was not given information she personally had a right to under the ADA and its regulations, causing her 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.” Thus, the First Circuit ruled, Laufer had standing to sue Acheson Hotels and, as a result, the judgment of the district court was reversed and the case was remanded back to the district court for further proceedings.
It should be noted that the First Circuit, in reaching this decision, explicitly rejected as unpersuasive decisions reached by other federal appeal courts, including the Second Circuit (Connecticut, New York, and Vermont) and the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, plus those portions of Yellowstone National Park that extend into Idaho and Montana). In that regard, Barclay Damon previously reported on the Second Circuit’s decision in Harty v. West Point Realty in which the appellate court upheld the dismissal of a complaint brought against a Holiday Inn franchisee by another serial plaintiff for lack of standing.
The First Circuit’s decision in Laufer v. Acheson Hotels, LLC is binding precedent on federal district courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island, where hundreds if not thousands of similar ADA accessibility lawsuits are pending. Barclay Damon will continue to monitor developments pertaining to these cases.
If you have any questions regarding the content of this alert, please contact Rob Thorpe, partner, at rthorpe@barclaydamon.com; Carolyn Marcotte Crowley, partner, at ccrowley@barclaydamon.com; Martine Wayne, law clerk, at mwayne@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area or Hotels, Hospitality & Food Service Team.