Deborah Laufer v. Arpan LLC

Eleventh Circuit Court of Appeals

Deborah Laufer v. Arpan LLC
11th Circuit Court of Appeals
Topics: Rehearing En Banc

Okay, this isn’t really a “case.” It’s just a denial of a request to go en banc. I summarize this because the Eleventh Circuit has decided to air its thoughts on a particular type of plaintiff, and the comments may be relevant in some other plaintiff’s case.

The issue before the court was whether to grant rehearing en banc in Laufer’s case, and the court ultimately decided not to do so. The panel decision held that “serial plaintiff Deborah Laufer has Article III standing under a theory of ‘stigmatic injury’ because she felt ‘frustration and humiliation’ and a ‘sense of isolation and segregation’ when she saw that a hotel—one that she admittedly did not intend to visit—was not complying with ADA regulations on its website.”

The Supreme Court is going to hear her case on the issue of whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.

CHIEF JUDGE WILLIAM PRYOR wrote separately to note that he thought the panel was incorrect in granting standing, but he saw no point in rehearing the case en banc now that the SCOTUS had granted cert.

JUDGE NEWSOM concurred with the denial of rehearing. He wrote to address Judge Grant’s dissent. He announced that he shares with her a “pretty profound skepticism” of Deborah Laufer’s “litigation program” and decision to ask as a “tester” or test-case plaintiff, noting that she was “most definitely acting like a ‘roving attorney[] general.’” He noted that Laufer and two other plaintiffs “most conspicuously represented by the same lawyers” had filed more than 1000 ADA suits against hotels in recent years, alleging a lack of ADA compliance. He stated that “the whole thing stinks to high heaven,” and he agreed with Judge Grant that Laufer’s “aggressive litigation tactics transgress constitutional limitations.” He differed with Judge Grant on the source of the lack of standing. While Judge Grant grounds her lack-of-standing opinion in Article III, Judge Newsom grounds his in Article II. He decries Laufer’s “proactive exercise of enforcement discretion—selecting her targets, willingly suffering the necessary injury, and then suing….” He thinks that constitutes an “impermissible exercise of Executive Power in violation Article II. Maybe because he thinks his metaphor of her acting like a “roving attorney general” actually makes her part of the executive branch. While he hints that he’d hold against her on the merits, he admits that he is “just not convinced that Article III itself distinguishes between online and in-person ‘discrimination.’”

JUDGE GRANT, joined by JUDGES BRANCH, LUCK, AND LAGOA, all dissented from the denial of en banc rehearing. Judge Grant wrote that the panel’s decision in favor of standing is precluded by a 1984 Supreme Court case, which she views as disallowing claims of stigmatic injury or cases where the person witnesses, but does, herself, experience discrimination. She essentially wrote a lengthy opinion about how the case lacks merit and dissented from the decision not to rehear it.

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
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