*Kata Kylliainen
I. What is Standing?
Under Article III of the U.S. Constitution, federal courts only have jurisdiction over cases and controversies.[1] To determine whether a claim meets the cases and controversies requirement, the Supreme Court implemented the doctrine of standing.[2] In Lujan v. Defenders of Wildlife, the Court established three elements a plaintiff must satisfy to have standing under the Constitution.[3] The first element requires a plaintiff to have experienced an “injury in fact.”[4] An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent.”[5] The injury cannot be “conjectural or hypothetical.”[6] Second, the plaintiff must show “a causal connection between the injury and the conduct complained of.”[7] Third, it “must be likely . . . that the injury will be redressed by a favorable decision.”[8] These elements ensure that “the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.”[9]
II. The Circuit Split
Recently, six cases have made their way up to six different Circuits of the Federal Courts of Appeals to address the issue of whether a self-proclaimed “tester” has standing to bring a claim where the alleged injury is informational or stigmatic only.[10] The Fourth Circuit’s decision in Laufer v. Naranda Hotels, LLC, created an even split of 3-3 between the federal courts of appeals.[11] Two plaintiffs, Owen Harty and Deborah Laufer, were both self-proclaimed “testers”, with Laufer describing herself as an “advocate of the rights of similarly situated disabled persons” with a “purpose of asserting her civil rights and monitoring, ensuring, and determining whether places of public accommodation and their websites are in compliance with the ADA.”[12] Harty and Laufer brought their claims against the owners of hotels for alleged noncompliance with provisions of the Americans with Disabilities Act (ADA).[13] The injury complained of was informational in nature.[14] For example, in one of her five lawsuits, Laufer alleged that the hotel’s violations “deprive[d] her of the information required to make meaningful choices for travel.”[15] Harty and Laufer, both disabled, visited the hotels’ websites and brought suit after finding that the websites did not comply with the ADA based on the omission of accessibility-related information.[16] Neither plaintiff had any intention of actually booking or visiting the hotels.[17] In all six cases, the district courts dismissed the plaintiffs’ claims on the grounds that they lacked standing.[18] On appeal, the Second, Fifth, and Tenth Circuits confirmed the district courts’ findings denying that testers have standing under the Lujan elements.[19] Conversely, the First, Fourth, and Eleventh Circuits have ruled in the affirmative, that such testers do have standing under Article III.[20]
The first appeal, decided in the Fifth Circuit, held that Laufer did not have standing because she failed to establish a concrete injury.[21] “She visited the [website] to see if the motel complied with the law, and nothing more.”[22] While an “inability to obtain information is sufficiently concrete to constitute injury in fact . . . when the information has some relevance to the litigant,”[23] Laufer has failed to establish such relevance because she had no concrete plans to stay at the hotel.[24] The Tenth Circuit also held that Laufer did not have standing because she did not suffer a concrete injury.[25] In evaluating Laufer’s arguments, the Tenth Circuit distinguished Laufer’s injury from the injury suffered in Havens Realty.[26] In Havens Realty, the Supreme Court held that a “tester” could sue under the Fair Housing Act.[27] However, the Havens Realty Court dealt with an injury “grounded in misrepresentation and racial animus”, a bar which Laufer did not surpass.[28] Following the holdings of the Fifth Circuit in Mann Hospitality and the Tenth Circuit in Looper, the Second Circuit also found that Harty did not have standing to bring suit as a “tester” based on his failure to allege an injury in fact.[29] The court found that Harty failed to show that he had an “interest in using the information . . . beyond bringing [his] lawsuit.”[30] Thus, Harty failed to plead an injury sufficient to confer standing under Article III of the U.S. Constitution.[31]
The Eleventh Circuit broke with neighboring circuits, standing out as the first to recognize that Laufer alleged an injury in fact sufficient to withstand dismissal for lack of Article III standing.[32] The court reasoned that Laufer’s injury constituted a concrete, stigmatic injury because the emotional injury, “frustration and humiliation[,]” and “sense of isolation and segregation” as a result of the noncompliance could affect her “in a personal and individual way” making them sufficiently particularized.[33] Next, the First Circuit and the Fourth Circuit both concluded that Laufer did in fact have standing in Laufer v. Acheson Hotels, LLC and Laufer v. Naranda Hotels, LLC, respectively, regardless of the fact that she never had concrete plans to visit either hotel.[34] In looking to the Tenth’s Circuit distinguishing of Haven’s Realty, both the First and Fourth Circuits found the distinguishment to be an unnecessary measure, as Haven’s Realty confers standing when the injury in fact is a failure to obtain information, even where the individual “ha[s] no intent to use the information for anything but a lawsuit.”[35] Although racial animus was relevant as an element of the statutory violation in Haven’s Realty, the lack of purposeful discrimination against Laufer did not preclude her standing to bring suit under the ADA.[36]
III. Conclusion
Ultimately, the circuit split boils down to whether an informational injury constitutes an injury in fact sufficient to confer Article III standing.[37] Given Laufer’s status as a self-proclaimed “tester” and her appearance as the plaintiff in five of the six cases mentioned above,[38] the circuit split may continue until the Supreme Court rules on the matter. For now, Laufer has paved a path forward for herself and other self-proclaimed “testers” to bring suit against hotels they have no intention of visiting, at least in the First, Fourth, and Eleventh Circuits.[39]
*Kata Kylliainen is a second-year student at the University of Baltimore School of Law. In September, she was inducted into the Royal Graham Shannonhouse III Honor Society. At school, she is a Staff Editor on the University of Baltimore Law Review and is excited to be a law scholar for Professor Kim Wehle in the Spring of 2024. During her first-year summer, Kata worked as an intern at Wharton Levin Ehrmantraut & Klein. She is excited to return to Gallagher Evelius & Jones in May for her second-year summer associate position.
[1] U.S. Const. art. III § 2, cl. 1.
[2] Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 161 (4th Cir. 2023) (citing Carney v. Adams, 141 S. Ct. 493, 498 (2020)).
[3] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
[4] Id. at 560.
[5] Id.
[6] Id. at 560 (internal quotations and citations omitted).
[7] Id. (internal citations omitted).
[8] Id. at 561 (internal quotations and citations omitted).
[9] Laufer v. Looper, 22 F.4th 871, 876 (10th Cir. 2022) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).
[10] See generally Naranda Hotels, 60 F.4th 156; Looper, 22 F.4th 871; Arpan LLC, 29 F.4th 1268; Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022); Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269 (5th Cir. 2021); Harty v. West Point Realty, Inc., 28 F.4th 435 (2nd Cir. 2022).
[11] Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 174 (4th Cir. 2023); see also Laufer v. Arpan LLC, No. 20-14846, 2023 WL 5209551, at *1 (11th Cir. Aug. 15, 2023). The opinion in Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022) is moot, making the current split 3-2.
[12] Naranda Hotels, 60 F.4th 15 at 158–59.
[13] Id at 158.
[14] Id. at 160.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] See Laufer v. Looper, 22 F.4th 871, 883 (10th Cir. 2022); Laufer v. Mann Hospitality, 996 F.3d 269, 273 (5th Cir. 2021); Harty v. West Point Realty, Inc., 28 F.4th 435, 445 (2nd Cir. 2022).
[20] See Naranda Hotels, 60 F.4th at 174; Laufer v. Arpan LLC, 29 F.4th at 1296–97 (11th Cir. 2022); Acheson Hotels, 50 F.4th at 278–79.
[21] Mann Hospitality, 996 F.3d at 272.
[22] Id.
[23] Id. at 273 (quoting Griffin v. Dep’t of Lab. Fed. Credit Union, 912 F.3d 649, 654 (4th Cir. 2019)).
[24] Id.
[25] Laufer v. Looper, 22 F.4th 871, 878 (10th Cir. 2022).
[26] Id. at 879.
[27] Id. at 878 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 374 (1982)).
[28] Id. at 879.
[29] Harty v. West Point Realty, Inc., 28 F.4th 435, 444 (2nd Cir. 2022).
[30] Id.
[31] Id. (citing Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269, 273 (5th Cir. 2021)).
[32] Laufer v. Arpan LLC, 29 F.4th 1268, 1273 (11th Cir. 2022).
[33] Id. at 1274–75 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)).
[34] Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 278 (1st Cir. 2022); Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 162 (4th Cir. 2023).
[35] See Acheson Hotels, 50 F.4th at 271, 273–74; Naranda Hotels, 60 F.4th at 171–72.
[36] Naranda Hotels, 60 F.4th at 171–72.
[37] See id. at 174; Acheson Hotels, 50 F.4th at 278–9; Arpan LLC, 29 F.4th at 1296–97; Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269, 273 (5th Cir. 2021); Laufer v. Looper, 22 F.4th 871, 883 (10th Cir. 2022); Harty v. West Point Realty, Inc., 28 F.4th 435, 445 (2nd Cir. 2022).
[38] See Naranda Hotels, 60 F.4th at 158; Acheson Hotels, 50 F.4th at 265; Mann Hospitality, 996 F.3d at 271; Looper, 22 F.4th at 874; Arpan LLC, 29 F.4th at 1270 (11th Cir. 2022).
[39] See Naranda Hotels, 60 F.4th at 174; Acheson Hotels, 50 F.4th at 278–79; Laufer v. Arpan LLC, 29 F.4th at 1296–97 (11th Cir. 2022); see also Laufer v. Arpan LLC, No. 20-14846, 2023 WL 5209551, at *1 (11th Cir. Aug. 15, 2023). The opinion in Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022) is moot, making the current split 3-2.
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