Second Circuit Says No Standing for Alleged ADA Website Violation Where Plaintiff Had No Intention of Visiting Defendant’s Hotel

Author: Thomas Blatchley

On March 18, 2022, the Second Circuit affirmed the judgment of the district court and held that a disabled plaintiff’s lawsuit alleging an ADA violation because defendant’s website deprived him of the information required to make meaningful hotel choices for travel failed to allege an informational injury sufficient for Article III standing since plaintiff had no intention of visiting defendant’s hotel. See Harty v. West Point Realty, Inc., No. 20-2672-cv, 2022 WL 815685 (2d. Cir. Mar. 18, 2022). Plaintiff lacked standing because he failed to allege a concrete injury in fact. The decision is a significant victory for defendants facing ADA website violations, especially where plaintiffs troll hotel websites to manufacture ADA website claims when they have no intention to visit the subject property.

The background is straightforward. Plaintiff, a disabled person that uses a wheelchair and is a self-proclaimed “advocate [for] the rights of similarly situated disabled persons” and “tester” who monitors ADA website compliance, appealed from the judgment of the Southern District of New York, which dismissed his complaint against defendant for alleged regulation violations under the Americans with Disabilities Act or ADA. Plaintiff did not allege in his complaint that he visited defendant’s website with the intention of visiting defendant’s hotel. Instead, plaintiff alleged that he frequently visits hotel websites to determine whether those websites comply with the ADA regulations. Looking only to the allegations of plaintiff’s complaint, and not at an affidavit filed by plaintiff in support of his opposition to defendant’s motion to dismiss for lack of subject matter jurisdiction, the district court dismissed plaintiff’s claims for lack of standing due to plaintiff’s failure to allege a concrete injury in fact.

On appeal, the Second Circuit affirmed the dismissal, holding that: (1) plaintiff failed to allege a concrete injury in fact and thus lacked standing to assert his ADA claim; (2) the district court did not abuse its discretion by considering only the allegations in plaintiff’s complaint when deciding defendant’s motion to dismiss; and (3) the district court did not dismiss plaintiff’s complaint with prejudice.

As to the standing issue, the Second Circuit began its analysis by setting forth the long established standard for a plaintiff to establish Article III standing: (1) plaintiff must have an injury in fact; (2) that there is a causal connection between plaintiff’s injury and the conduct complained of; and (3) that plaintiff’s injury will be redressed by a favorable judicial decision. The Second Circuit then highlighted the Supreme Court’s recent clarification in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021) that a plaintiff has standing to bring a claim for monetary damages following a statutory violation only when plaintiff can show a current or past harm beyond the statutory violation itself. Notably, the Supreme Court rejected the standard articulated in Strubel v. Comenity Bank, 842 F. 3d 181, 190 (2d Cir 2016), which held that a plaintiff has standing to sue for a violation of a procedural right created by Congress if (i) “Congress conferred the procedural right to protect a plaintiff’s concrete interests” and (ii) “the procedural violation presents a risk of real harm to that concrete interest.” (internal quotation marks omitted). TransUnion now makes clear that in a suit damages, mere risk of future harm, standing alone, cannot qualify as a concrete harm. 141 S.Ct. at 2210-11.

Plaintiff alleged in his complaint that because defendant’s website did not comply with the ADA, the website infringed his wright to travel free from discrimination. The Second Circuit acknowledged, however, that plaintiff did not allege in his complaint that he was using the website to arrange for future travel. Instead, plaintiff acknowledged that his review of defendant’s website was done in his capacity as a “tester” of ADA compliance, not as a prospective traveler seeking a wheelchair-accessible hotel. Looking to TransUnion and recent Circuit Court decisions, the Second Circuit found that because plaintiff asserted no plans to visit the defendant hotel property (or surrounding area), he could not allege that his ability to travel was hampered by defendant’s website in a way that caused him a concrete harm. See TransUnion, 141 S.Ct. at 2205 (“Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.”) (internal quotation marks omitted). Thus, the Second Circuit found that plaintiff lacked standing to bring a suit for damages.

As to plaintiff’s requests for prospective relief, the Second Circuit held that while plaintiff alleged that “in the near future” he intended to “utilize the website to reserve a guest room,” that was not sufficiently imminent to create an injury in fact. In other words, such “some day” intentions, without any description of concrete plans, or even any specification of when the some day will be, do not support a finding of the actual and imminent injury required by Article III.

The Second Circuit also rejected plaintiff’s claim that defendant deprived him of the information required to make meaningful choices for travel, which plaintiff asserted as an “informational injury” for purposes of standing. The Second Circuit found that even assuming that plaintiff could allege that he was deprived of information to which he was entitled under the ADA, he still failed to allege downstream consequences from failing to receive the required information. Put another way, plaintiff failed to show that he had an interest is using the information beyond bringing the lawsuit. Thus, the Second Circuit held that plaintiff failed to allege an information injury sufficient for Article III standing.

Lastly, the Second Circuit rejected plaintiff’s claim that he suffered and would continue to suffer direct and indirect injury as a result of “the discriminatory conditions present at [defendant’s] website.” The Second Circuit found that plaintiff’s complaint did not specify how defendant’s website violated the ADA regulations or how those alleged violations discriminated against disabled people. The Second Circuit also found that plaintiff’s complaint contained a boilerplate assertion that defendant failed to comply with the ADA regulations, and that TransUnion makes clear that a statutory violation alone, however labeled by Congress, is not sufficient for Article III standing.