Virtually Inaccessible: Resolving Ada Title Iii Standing in Click-and-mortar Cases

• Publication year: 2023

Virtually Inaccessible: Resolving ADA Title III Standing in Click-and-Mortar Cases

Saxon S. Kagume

VIRTUALLY INACCESSIBLE: RESOLVING ADA TITLE III STANDING IN CLICK-AND-MORTAR CASES Abstract

As the electronic age has taken hold of the global community, and digital devices have become the mainstay of human interaction, new accessibility barriers have emerged for people with disabilities. Although most courts now conclude virtual inaccessibility is an injury cognizable under Title III of the Americans with Disabilities Act, great ambiguity surrounds the injury-in-fact requirement of Article III standing in online accessibility cases. Despite pleading for elucidation and clarifying principles, federal district courts have been left to navigate the uncharted territory of the digital injury-in-fact inquiry with exiguous guidance from higher courts. The resultant confusion in the federal courts has manifested itself as diametrically contradictory injury-in-fact holdings in factually identical cases, both inter- and intra-circuit.

This Comment clarifies the digital injury-in-fact inquiry by identifying and dissecting four crucial issues dividing federal courts in ADA Title III online accessibility cases: (1) the location a plaintiff must intend to return; (2) the application of the geographic intent-to-return test factors in cyberspace; (3) the role of future injury; and (4) the scope of virtual standing.

First, this Comment argues the destination of a plaintiff's intent to return is preordained by the type of injury alleged by the plaintiff. If a plaintiff alleges a purely virtual website injury, federal courts must assess the plaintiff's intent to return to the inaccessible website. If a plaintiff alleges a hybrid website injury, federal courts must assess the plaintiff's intent to return to the inaccessible website and intent to avail themselves to the goods or services of the public accommodation's brick-and-mortar location.

Second, this Comment contends the geographic intent-to-return factors are not probative of a plaintiff's intent to return to a website. However, federal courts cannot merely remove the geographic factors from the intent-to-return test because the resulting analysis infringes on Supreme Court precedent. Rather, federal courts must substitute the intent-to-return test's geographic factors with factors appropriate in cyberspace.

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Third, this Comment asserts the injury-in-fact inquiry cannot be satisfied by past injury alone. Instead, federal courts must assess the plaintiff's likelihood of future injury.

Finally, this Comment argues federal courts should not adopt a lenient approach to standing because a lenient approach is not necessitated by Supreme Court precedent, it is inconsistent with Supreme Court precedent, and it exacerbates the extant issue of serial litigation in online accessibility cases.

Table of Contents

Introduction..........................................................................................677

I. The Standing Doctrine in ADA Title III Claims......................681

A. Understanding Standing ......................................................... 682
B. The Traditional Injury-in-Fact Tests ....................................... 684

II. The Virtual Injury-in-Fact Inquiry.........................................686
III. The Questions Dividing Courts................................................689

A. Intent to Return Where?.......................................................... 690
B. Geography in Cyberspace?..................................................... 692
C. Past or Future Injury? ............................................................ 694
D. Broad or Narrow Interpretation?............................................ 695

IV. Solving the Online Injury-in-Fact Puzzle..............................697

A. Mapping the Location to Which a Plaintiff Must Intend to Return .................................................................................... 697
B. Virtually Compatible Intent-to-Return Factors........................ 702
C. Preserving the Role of Future Online Injury............................ 707
D. The Constitutionally Sound Scope of Cyber Standing .............. 710

1. Standing Leniency Based on Trafficante Misapplies Supreme Court Precedent................................................................ 710
2. Standing Leniency Based on Private Enforcement Contravenes Supreme Court Precedent ................................................. 712
3. Standing Leniency Exacerbates Serial Litigation............... 714

Conclusion.............................................................................................719

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Introduction

Deborah Laufer, a Florida resident, relies on a wheelchair or cane to ambulate.¹ Deborah requires various disability accommodations when staying in hotels, including an accessible parking space, sufficiently wide doorways, and lowered sinks.² In the span of one year, Deborah filed over 500 lawsuits against different hotels in over fifteen states.³ In these nearly identical lawsuits,⁴ Deborah alleged each hotel's reservation website violated the Americans with Disabilities Act by failing to provide information pertinent to booking a room that accommodates her disability.⁵ Despite the indistinguishable nature of these lawsuits, federal courts across America were divided over one crucial issue—whether Deborah successfully established standing to sue.⁶

The Americans with Disabilities Act ("ADA") was signed into law on July 26, 1990, by President George H.W. Bush.⁷ Deemed the "world's first comprehensive civil rights law for people with disabilities,"⁸ the ADA prohibits discrimination on the basis of disability in "employment, transportation, public

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accommodations, communications and access to state and local governments programs and services."⁹ The stated purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."¹⁰ Through this mandate, the ADA aims to "assure equality of opportunity, full participation, independent living, and economic self-sufficiency for . . . individuals" with disabilities.¹¹

Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."¹² In exchange for the comprehensive scope of Title III, "ADA proponents settled for limited remedies"¹³ —a plaintiff may only seek injunctive relief under Title III, and damage awards are unavailable.¹⁴

Since the ADA's origin in 1990,¹⁵ the role of the internet in American society has changed profoundly.¹⁶ Following the first commercial website launch in

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1993,¹⁷ the internet quickly became a vital tool for communication, information, and entertainment.¹⁸ In 2022, the United States ranked as the third-largest online market globally, with over 307 million internet users in the United States.¹⁹ The expansive presence of the online world that has connected millions of Americans "has also created a 'digital divide' between the disabled and the nondisabled."²⁰ For many individuals with physical, visual, or auditory disabilities, the internet's expansion into vast areas of American life has resulted in new barriers to participation.²¹

Consequently, over the past decade, there has been a significant rise in lawsuits alleging that inaccessible websites violate Title III of the ADA.²² Most case law and scholarship surrounding virtual accessibility have centered on the threshold issue: whether the protections of ADA Title III extend to website accessibility at all.²³ Although there is no unanimity over the matter, federal

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courts generally apply ADA Title III to websites as long as the website is linked to a brick-and-mortar public accommodation.²⁴ However, this judicial trek into the unfamiliar terrain of online accessibility cases has unearthed a myriad of novel questions that have confounded, conflicted, and divided courts.²⁵

This Comment focuses its attention on an issue frequently overlooked by courts and academics alike: Article III standing in virtual accessibility cases. Specifically, this Comment centers around the most contested standing element in online accessibility cases—the injury-in-fact requirement.²⁶ The injury-in-fact inquiry is straightforward in brick-and-mortar accessibility cases but has perplexed and divided federal courts when they attempt to apply it to online accessibility cases.²⁷ Nationwide, federal courts have tried to "fit the square peg of an online injury into the round hole of traditional standing analysis"—an approach that has produced contradictory case outcomes between and within circuits.²⁸

This Comment demystifies the virtual injury-in-fact assessment by identifying and then resolving the key issues that have generated splits in the federal courts. First, this Comment argues federal courts must assess a plaintiff's intent to return to the locale that corresponds with the type of injury alleged by the plaintiff. Second, this Comment contends federal courts must substitute the intent-to-return test's geographic factors with cyber-centric factors to discern a plaintiff's intent to return to a website. Third, this Comment asserts the injury-in-fact requirement cannot be satisfied by showing past injury alone. Finally, this Comment argues federal courts should not adopt an unfettered approach to standing in online accessibility cases.

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This Comment proceeds in four parts. Part I discusses the origin of the standing doctrine and the intricacies of the injury-in-fact requirement articulated through Supreme Court precedent. Next, this Part illustrates the injury-in-fact tests crafted by...