Almost every claim brought under Title III of the Americans with Disabilities Act raises standing issues because, in almost every case, the lawsuit is the result of a plaintiff, usually sponsored by a law firm, seeking out an ADA violation in order to make money off a quick settlement.¹ The Supreme Court’s June 25, 2021 decision in Transunion LLC v. Ramirez, No. 20-297 (June 24, 2021) will significantly limit, but probably not eliminate modern industrial scale ADA litigation.
In cases involving physical barriers to access most courts agree that a plaintiff who confronts a physical barrier to access has suffered a concrete harm even if they did not intend to take advantage of the goods and services of the business.² For this kind of case the only question is whether the plaintiff is likely to suffer future harm and therefore has standing to seek injunctive relief. Standing to seek injunctive relief is critical because Title III has no damage remedy.
While physical barrier cases are still being filed, particularly in California, most of the attention being paid to Title III ADA litigation in recent years focuses on website accessibility. The law of standing for such cases is complicated by the differing theories about why the ADA requires websites to be accessible. It is also much easier to plead an immediate harm – the plaintiff can easily allege they tried to buy or gain access to services with little fear of being shown to have lied. Some courts apply a standing rule similar to that in physical access cases – if the plaintiff confronts an inaccessible website they have suffered a concrete injury even if they did not intend to take advantage of the goods and services offered.³ There are, however, a number of courts finding that merely visiting an inaccessible website does not give rise to standing if it offers goods and services only to members and the plaintiff is not a member.(4) A few reject the notion of a “dignitary injury” altogether. (5) In either case intent to return is critical because the only remedy is injunctive relief.
Finally, there are the hotel website cases alleging that a hotel website does not have adequate information about accessibility features. Here there is a distinct split, with the Fifth Circuit and other courts holding that without any intent to travel there is no harm sufficient to create standing, while other courts find that, as with other websites, merely confronting the lack of information is a harm.(6)
Will Transunion change this? The central holding in Transunion is that Congressional action alone cannot create a cause of action that satisfies the Case or Controversy requirement in Article III of the Constitution. As the Court says:
Importantly, this Court has rejected the proposition that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 578 U. S., at 341. As the Court emphasized in Spokeo, “Article III standing requires a concrete injury even in the context of a statutory violation.” Ibid.
Instead, the plaintiff must have suffered some harm of a kind that “has a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” In Transunion this test meant that people whose inaccurate credit information was published to businesses had suffered a harm because the damage to their reputation was similar to common law defamation. People whose inaccurate credit information was never published had suffered no such harm, so despite the fact that Congress explicitly authorized a lawsuit by those individuals they could not sue because they had not suffered any harm.
For ADA physical accessibility lawsuits it does not appear that Transunion will change the standing analysis. Although the purpose of the ADA is to provide equal access to the goods and services of public accommodations, courts have generally refused to look at the motive of the plaintiff in visiting a particular place, reasoning that the ADA guarantees access to public places regardless of motive. Exclusion from public places based on impermissible criteria like race or religion is a constitutional harm and Transunion recognizes that “traditional harms may also include harms specified by the Constitution itself.” While Transunion may be the excuse for a new attack on Title III standing in physical access cases it doesn’t seem likely to change the jurisprudence.(7)
For ordinary (non-hotel) website cases the effect of Transunion will depend on the website accessibility theory adopted by the Court. Courts holding that websites are themselves places of public accommodation will continue to find standing because, in their view, the ADA prohibits any denial of access to the places. Courts that require a nexus between a website and a place of public accommodation will be forced to ask what kind of nexus and why it matters. The “gateway” theory that a website must be accessible when access is necessary for access to a physical place seems to require no change in standing analysis. Plaintiffs’ lawyers and some courts are fond of analogizing inaccessible websites to “whites only” signs and if a website truly acts as a gateway then making it inaccessible is no different than making the physical place itself in accessible.
The gateway theory, however, has little application in reality because websites offer much than mere information about store hours and locations, and because that information is in any case available in many other forms. Another kind of nexus is that the website that offers an alternative way to buy goods and services of a public accommodation. Here Transunion supports the arguments against “dignitary harm” as a justification for standing. If the only reason the website is covered by Title III of the ADA is that it offers goods and services of a physical public accommodation then the mere inability to navigate through the website when the plaintiff has no intent to use the goods and services doesn’t cause the kind of harm Congress recognized with respect to physical places. Remember that the harm a disabled person suffers when they are excluded from private property (despite the word “public” the public accommodations covered by Article III of the ADA are privately owned) is a harm that satisfies Article III only because it is a Congressional recognition of a harm analogous to the constitutional harm of discrimination based on race, religion and so forth. Without that Congressional recognition the default would be that a property owner can exclude whomever they choose for whatever reason they choose. A website is a form of private property from which the public can generally be excluded, so unless Congress says websites are themselves subject to the ADA, being excluded from a website would not appear to give rise to a harm unless as a result one was deprived of equal access to goods and services that one desired.
For hotel websites that do not have sufficient information about accessibility Transunion undermines the reasoning of those courts who hold that a plaintiff who is not looking for a hotel room still suffers an injury when they are not given information that is mandated by statute. This situation – a person is denied information that is of no use to them – fits squarely within the Courts finding that a plaintiff does not have standing when she does not seek
to remedy any harm to herself but instead is merely seeking to ensure a defendant’s “compliance with regulatory law” (and, of course, to obtain some moneyvia the statutory damages).
This sentence describes precisely what the Laufer hotel accessibility lawsuits seek to do; that is, enforce compliance regulatory law in which the plaintiff has no personal interest. Transunion should be the death knell for the Laufer lawsuits because Ms. Laufer admits that she has no personal interest in anything but acting to enforce DOJ’s regulations.
Transunion is unlikely to put an end to abusive ADA litigation entirely, but it should eliminate website accessibility cases in those Circuits that find websites are not places of public accommodation² and put an end to almost all hotel website accessibility information lawsuits. For traditional industrial scale ADA litigation based on physical accessibility or websites that are treated as public accommodations Transunion seems unlikely to have much effect. In those cases standing will continue to focus on intent to return as the key standing issue because without intent to return there is no relief available under the ADA.
¹ If you search among my posts for the word “standing” you’ll find dozens of blogs dating back to “Standing on Air”, one of my very first.
² The majority opinion is represented by Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). I call this liberal view of standing “Cheap Standing” because it doesn’t require that the plaintiff suffer any real injury as a requirement to sue. A more limited view has been adopted by the Fifth Circuit. See, ADA Standing – A real limit on cheap standing for serial filers.
³ See, Murphy v. Bob Cochran Motors, Inc., 1:19-CV-00239, 2020 WL 6731130, at *7 (W.D. Pa. Aug. 4, 2020), report and recommendation adopted, 1:19-CV-239-SPB, 2020 WL 5757200 (W.D. Pa. Sept. 28, 2020)
(4) See, Fourth Circuit decision in ADA web access case is a victory for all defendants.
(5) See footnote 2.
(6) See, Tester standing under the ADA – Getting it wrong, getting it right, and an interesting but irrelevant analysis.
(7) This assumes, of course, that Congress intended that the ADA would guarantee access to public places themselves instead of to goods and services they offer. A more narrow reading of the injury created by the ADA would bring Transunion into play.
² It can be expected that plaintiffs will lie about their desire to buy goods and services, but those lies rarely survive scrutiny at trial.