By Matthew Schmitz
***Disability communities differ on whether they prefer person-first (“person with a disability”) or identity-first (“disabled person”) language. Here, I have opted for identity-first language but want to acknowledge that each member of the disability community may have a different preference.
The First Circuit bucked the trend of its sister circuits on a crucial question of standing to bring claims connected to the Americans with Disabilities Act (ADA) on October 5th, 2022. The decision to extend standing to website testers, under the Reservation Rule, brings the First Circuit into harmony with the Eleventh Circuit but leaves it at odds with the Second, Fifth, Tenth, and D.C. Circuits. The circuit court and Supreme Court responses to this division going forward will have serious implications for the legal efforts to promote ADA compliance and access for disabled people.
The Circuit Split on Tester Standing
Congress, while crafting the ADA to combat discrimination in public spaces and ensure reasonable levels of accommodation for disabled individuals, vested the ADA’s regulatory authority in the Attorney General. Among the many regulations the Attorney General has promulgated since receiving that authority is one commonly referred to as the Reservation Rule. This rule requires businesses that provide lodging to present enough information on their reservation services to allow disabled people to determine if a room meets their needs. The standard is meant to ensure that disabled people can reserve lodging as efficiently and conveniently as all members of society.
One result of this rule has been the involvement of ADA testers, who push for accommodation by bringing federal suits across the country concerning the Reservation Rule. These testers face a hurdle, however, when opposing parties challenge their Article III standing. Courts faced with these challenges struggle especially with whether these testers have suffered an “injury in fact” sufficient to give them a live case and controversy under the Constitution. These injuries, following the Supreme Court’s decision in Spokeo, Inc. v. Robins, can be intangible but must be more than a mere violation of statutory procedure.
Building on Spokeo, the most recent Supreme Court opinion related to tester standing came through TransUnion LLC v. Ramirez, which involved a class action under the Fair Credit Reporting Act. The TransUnion court applied the Spokeo standard and found that the plaintiffs failed to allege more than a procedural violation. The Court did not stop there, however. It also cited the plaintiffs’ failure to point to “downstream consequences” or “adverse effects” that resulted from TransUnion’s denial of information required under the statute. This expanded the Court’s analysis beyond the previous concrete harm standard from Spokeo and arguably reflects a larger trend against tester standing.
The Second, Tenth, and Fifth Circuits also perpetuated this trend when they subsequently applied the downstream consequences and adverse effects considerations from TransUnion to deny standing for website testers in similar circumstances to Laufer. Each circuit relied on slightly different grounds. In Harty v. W. Point Realty, Inc., the Second Circuit focused on the plaintiff’s lack of interest in putting the information to use. The Tenth Circuit, in another case brought by Laufer, pointed to the absence of the kind of misrepresentation that has substantiated concrete injury in previous similar cases. The court also added that a violation of statutory right is not enough for a concrete harm. Finally, the Fifth Circuit, in Laufer v. Mann Hosp., LLC, held that Laufer was not able to prove the information had enough relevance to turn information denial into an injury.
The Laufer Court’s Response
The First Circuit, in Laufer, was not persuaded by the logic of previous decisions from other circuits. Instead, it relied on the Supreme Court’s precedent in Havens Realty Corp. v. Coleman, which concerned a Fair Housing Act claim brought by a tester working to eliminate racial steering. Looking at the injury in both Havens Realty and Laufer, the court struggled to find a difference between a Black tester being denied truthful information about long-term renting availability and a disabled tester being denied information about short-term renting availability. The court stressed that the similarities between Havens Realty and Laufer should push circuit courts to apply the Havens Realty standard until the Supreme Court holds otherwise.
The Supreme Court’s holding in Federal Election Commission v. Akins also supports the First Circuit’s understanding that information denial can be a sufficient concrete injury for purposes of standing. In Akins, the Court found that statutorily required information about donor lists for political organizations would likely be useful for the plaintiffs, meaning the denial of that information was equivalent to an injury. An additional Supreme Court holding, surrounding the Federal Advisory Committee Act, also supports this concept that bare denial of information access can create enough harm for Article III standing.
Other circuit courts see things differently. In the aforementioned tester standing cases, the Second and Tenth Circuit distinguished from Havens Realty by reasoning (1) that the simple status of being a tester does not create sufficient harm, (2) that ADA tester plaintiffs were not victims of misrepresentation, and (3) that there are no downstream consequences for ADA testers. The First Circuit found this logic unpersuasive, but also took pains to note that, even under the stricter adverse effects standard pulled from TransUnion, Laufer asserted a sufficient injury in this case. The “feelings of frustration, humiliation, and second-class citizenry” that Laufer experienced are, the court held, downstream consequences and adverse effects as the federal courts have applied that standard.
The First Circuit concluded its analysis by addressing the final two concerns raised by the defendant in Acheson Hotels: (1) particularized injury and (2) standing relative to injunctions. With respect to particularization, Acheson argued that Laufer based her claim on a generalized injury too large to meet the standard set by Lujan v. Defenders of Wildlife. In response, the court drew a careful distinction between Laufer, as a disabled person, and someone who only witnessed an act of discrimination. The court, in that context, found Laufer’s situation particularized enough and implied that the witness’s situation would not be.
With respect to standing for injunctive relief, Acheson argued that Laufer did not face the required risk of future injury, since it had taken steps to remedy the reservation concerns. Answering that concern, the court held that Laufer’s intent to return to both Acheson’s website and its third-party partners, in accordance with her thorough testing procedures, was enough. This is especially true, the court pointed out, since Acheson had not yet addressed the existing issues with its third party platforms, even as it corrected noncompliance in its own site.
Continuing to Push for ADA Compliance
The concerns expressed by the parties in Laufer are far from unique to this case. The practice of ADA testing has generally been met with some pushback by courts, who mention the lack of rigor in their complaints, the potential insincerity of claimants, and the flood of claims that testing creates. Nevertheless, people knowledgeable in ADA compliance efforts recognize the crucial role that testers can play in promoting equality for disabled people. Because litigation is the only forum for repairing non-accommodation under the ADA—and because of the serious frustration that inaccessibility can produce for disabled people—the potentially troubling qualities of some testers and their attorneys may be necessary to fix ongoing compliance issues. This is even more true considering businesses have been on notice for over a decade that courts are willing and able to enforce digital accessibility.
Laufer may still offer another key opportunity for developing these compliance efforts if the Supreme Court chooses to issue a writ of certiorari before Acheson’s requested January 18, 2023 deadline. The reach of the First Circuit’s decision and any potential Supreme Court clarification could also influence similar standing concerns in data privacy and security, credit reporting, and informational statutory rights violations in general. In the meantime, plaintiffs and businesses alike may struggle to understand the potential reach of litigation on ADA website compliance.
Additionally, plaintiffs like Laufer may continue to bring their claims in friendly circuits whenever possible, making Laufer an important tool in their efforts to bring website reservation services in line with Department of Justice regulations and the text of the ADA itself. The fight over tester standing in ADA compliance cases is far from over, and by doubling the number of friendly circuits through which Laufer and her peers can continue to push the issue, Laufer will play a key role in that ongoing struggle.
**Matthew Schmitz is a Staff Member for the Journal of Law and Inequality
 Jevon Okundaye, Ask a Self-Advocate: The Pros and Cons of Person-First and Identity-First Language, MASSACHUSETTS ADVOCATES FOR CHILDREN (Apr. 23, 2021), https://www.massadvocates.org/news/ask-a-self-advocate-the-pros-and-cons-of-person-first-and-identity-first-language.
 Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 263 (1st Cir. 2022).
 Bernie Pazanowski, Circuit Splits Reported in U.S. Law Week—October 2022, Bloomberg L. News (Nov. 1, 2022), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/us-law-week/X2121QSO000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvMzA3MjVhNGYxNzVkMDQ3MmZkZjM4ODhiZDE2OGNjMjgiXV0–436475ddb03965053ba03db6177fec2f752d26fc&bna_news_filter=us-law-week&criteria_id=30725a4f175d0472fdf3888bd168cc28&search32=u0qIiHFNFvDD17_r3nWqhg%3D%3DQJ1xwqmewFmZAO6rPgP_zoLcxHwI0hhgrf_NN2BxGo0Iugx1_cJR7hAqM4fpGJv5aDoGRmpcKIH0mNYrNX4-6tog1pImIjfHGyVpx_B79cYkYvOwTwN1u6nDEr0dThD1.
 42 U.S.C. § 12186(b) (2022).
 Laufer v. Acheson Hotels, LLC, 50 F.4th at 264–65 (citing 28 C.F.R. § 36.302(e) (2022)).
 28 C.F.R. § 36.302(e)(1)(ii) (2022).
 Laufer v. Acheson Hotels, LLC, 50 F.4th at 264–65 (citing 28 C.F.R. pt. 36, app. A (2010), Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities.).
 Laufer v. Acheson Hotels, LLC, 50 F.4th at 265.
 See, e.g., Id.
 Id. at 266.
 Id. at 267–68 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)).
 141 S.Ct. 2190 (2021).
 TransUnion LLC, 141 S.Ct. at 2214.
 Elizabeth Bowersox, Tenth Circuit Kills ‘Tester Standing’ in Accessibility Lawsuits, McAfee & Taft EmployerLINC (Feb. 9, 2022), https://www.mcafeetaft.com/tenth-circuit-kills-tester-standing-in-accessibility-lawsuits/.
 Laufer v. Acheson Hotels, LLC, 50 F.4th at 271 (citing Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022); Laufer v. Looper, 22 F.4th 871, 879–81, 883 (10th Cir. 2022); Laufer v. Mann Hosp., LLC, 996 F.3d 269, 273 (5th Cir. 2021)).
 Harty, 28 F.4th at 444.
 Laufer v. Looper, 22 F.4th at 878–80.
 Laufer v. Mann Hosp., LLC, 996 F.3d at 273.
 Laufer v. Acheson Hotels, LLC, 50 F.4th at 272–73.
 Id. at 268–69 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–74 (1982)).
 Id. at 269.
 Id. at 271.
 Id. at 269–70 (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 20–21 (1998)).
 Id. at 270.
 Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449–50 (1989).
 Laufer v. Acheson Hotels, LLC, 50 F.4th at 272–74.
 Id. at 274–75.
 Id. at 275.
 Id. at 276.
 Id. at 276 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992)).
 Id. at 277.
 Sheri Byrne-Haber, Who Tests the ADA Testers? Medium (July 9, 2021), https://sheribyrnehaber.medium.com/who-tests-the-ada-testers-dcb9db8d3749.
 Acheson Hotels, LLC v. Laufer, SCOTUSblog (Dec. 21, 2022), https://www.supremecourt.gov/docket/docketfiles/html/public/22-429.html. Several parties have also filed amici curiae briefs that explore various angles of this issue.
 Melanie A. Conroy, First Circuit Court of Appeals Rules Website Tester Has Standing for ‘Informational Injury’, Deepens Circuit Divide, Nat’l L. Rev. (Oct. 28, 2022), https://www.natlawreview.com/article/first-circuit-court-appeals-rules-website-tester-has-standing-informational-injury.
 Bowersox, supra note 15.