Law360 (November 22, 2022, 8:14 p.m. EST) – A Tenth Circuit panel may stay its decision on whether hotel websites that fail to provide sufficient accessible room information violate U.S. people with disabilities and cause enough harm to give a test plaintiff standing to sue, asking attorneys on Tuesday whether he should wait to see if the U.S. Supreme Court will take up a similar case by the same plaintiff.
The attorney representing the plaintiff, Thomas B. Bacon of Thomas B. Bacon PA, has filed similar cases around the country, many on behalf of the same client, Deborah Laufer. While Bacon faced appellate losses in the Fifth, Tenth, and Second Circuits, as well as an unpublished adverse opinion in the DC Circuit, his closing arguments fell on more favorable ears elsewhere.
Bacon obtained a favorable judgment in March in the Eleventh Circuit, where there is a pending motion for a new en banc hearing. And last month, the First Circuit overturned a lower court order dismissing a similar case brought by Laufer against a Maine hotel. The hotel in this case filed a writ of certiorari with the Supreme Court earlier this month.
The conflict of opinions largely revolves around whether a tester plaintiff has standing to sue the ADA in light of the 2016 Supreme Court decision in Spokeo Inc. v. Robins. which requires plaintiffs to demonstrate that they have suffered harm that is “concrete and specific and real or imminent” to satisfy Article III standing.
Laufer is a disability advocate and self-proclaimed “tester” who asserts her civil rights by testing whether public accommodations and their websites are ADA Title III compliant. The First Circuit, in its October opinion, found that Laufer had standing because of the “stigma injury” of being discriminated against.
Bacon’s mention of the circuit dispute and the motion pending before the Supreme Court prompted Tenth Circuit Judge Timothy M. Tymkovich to ask whether the panel should sit on the appeal until the justices act.
Bacon replied that this is what he expects. He told the panel that he had not yet filed a response to cert’s motion and that he had heard from advocacy groups who wanted him to oppose it, but said he believed the court should deal with it to resolve the circuit dispute.
“What is clear is that the Supreme Court needs clarity,” Bacon told Law360 on Tuesday.
The Tenth Circuit previously upheld the dismissal of one of Laufer’s cases, but Bacon said the panel in that case did not consider the issue of “stigma injury” that was key in the decisions of the Eleventh and First. circuits.
Bacon compared the case to the Supreme Court’s civil rights-era decision in Evers v. Dwyer. in which a black man sued for being forced to sit in the back of a bus.
The “stigmatizing harm” of discrimination provides standing, as recognized by the First Circuit’s decision, Bacon argued. If discrimination is not injury, but may simply result in injury to someone who has been discriminated against, he said, then the Evers v. Dwyer decision would have gone the other way unless ‘Evers cannot prove concrete harm.
“Once discrimination is no longer a bad thing, then it’s all out the window,” Bacon said. “That’s why I think I have a good chance on the Supreme Court, as conservative as it is.”
Bacon also pointed to the 2021 Supreme Court decision in TransUnion LLC v. Ramirez in which he ruled that Congress can make certain harms legally actionable, specifically citing discrimination as an example.
“It looks like we’ve got a bit of a mess in this area and your prolific client has been instrumental in trying to figure out if the informational stigma wounds will be enough to get Article III status,” Tymkovich told Bacon on Tuesday.
Attorney Jeffrey C. Ruebel of Ruebel & Quillen LLC handled oral argument Tuesday in the consolidated appeal of the two hotel companies, Red Door 88 LLC and Campfield Properties LLC. Ruebel argued that the ADA’s guidelines are confusing and cumbersome, especially for family establishments.
Two key questions, Ruebel said, are what a compliant website looks like and what information it should include, given the wide variety of disabilities.
“When you’re looking at making a website ADA compliant, it’s 200 pages of descriptions of exactly what parts you say are ADA compliant,” Ruebel said. “And that’s a burden that’s virtually impossible to do.”
Tenth Circuit Judge Scott Matheson asked Ruebel if Laufer taking a trip to Colorado and visiting the area near the hotels made a difference to his standing.
But Ruebel said Laufer had to allege a real and imminent threat of future injury to establish standing.
“The fact that she was unable to go through the reservation system on this single occasion that she drove through Colorado is insufficient to establish a claim of discrimination,” Ruebel said.
Ruebel told Law360 on Tuesday that he would like to see the Tenth Circuit issue a decision without waiting for the Supreme Court to act.
“I think if they were to step in, they could add their particular perspective to help the Supreme Court,” he said. “Obviously it’s a bit of a tricky issue, and a lot of different people are going to be affected by it, so the more good opinion we can get, the better off I think everyone is.”
Judges Timothy M. Tymkovich, Paul J. Kelly Jr. and Scott M. Matheson Jr. served on the Tenth Circuit panel.
Deborah Laufer is represented by Thomas B. Bacon of Thomas B. Bacon PA.
Red Door 88 LLC is represented by Jeffrey C. Ruebel and Julia L. Morgenthau of Ruebel & Quillen LLC. Campfield Properties LLC is represented by Stephen Rotter and Jennifer L. Gokenbach of The Workplace Counsel.
The cases are Laufer v. Red Door 88 LLC and Laufer v. Campfield Properties, Case Numbers 22-1055 and 22-1106, before the United States Court of Appeals for the Tenth Circuit.
–Additional reporting by Joyce Hanson and Nathan Hale. Editing by John C. Davenport.
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