An Oct. 5 decision at the 1st Circuit U.S. Appeals Court in Laufer v. Acheson Hotels, reversing a lower court’s dismissal of a lawsuit on website compliance with the Americans With Disabilities Act, “deepened a circuit split” on when, following the Supreme Court’s 2021 ruling in TransUnion v. Ramirez, a plaintiff “can sustain a suit based on an informational injury,” said the Pierce Atwood law firm in an analysis Friday. In TransUnion, SCOTUS found that plaintiffs who can’t demonstrate “concrete harm” are not entitled to standing, it said. In its Laufer decision, the 1st Circuit “determined the plaintiff had established both,” it said. Plaintiff Deborah Laufer alleged that when she visited Acheson’s website, it didn’t identify accessible rooms, provide an option for booking accessible rooms or give sufficient information about the accessibility features of Acheson properties. The lower court had determined that Laufer’s admitted status as a tester and not a traveler “was fatal to her claim,” said the law firm. But the 1st Circuit disagreed, concluding Laufer “demonstrated sufficient injury to have standing to sue,” it said. Its decision “deepens the growing appellate-court divide on the question of constitutional standing in website accessibility cases,” said Pierce Atwood: “We expect to see the Supreme Court wade back into constitutional standing in an upcoming term. In the meantime, the current circuit split will continue to trouble litigants and lower courts alike, and the future of class action litigation based on informational harms will remain unsettled.” The questions involving concrete harm and constitutional standing are critical, “not just in website accessibility cases, but in other class action matters involving credit reporting, consumer and employee data privacy, data breaches and cybersecurity incidents, and other cases involving alleged violations of statutory rights,” it said.

Family Entertainment Group (FEG), which operates physical game venues nationally under the brand name In the Game, also runs websites that “contain access barriers that prevent free and full use by blind and visually disabled individuals using keyboards and available screen reader software,” in violation of the Americans With Disabilities Act, alleged a complaint Friday (docket 9:22-cv-81651) in U.S. District Court for Southern Florida in West Palm Beach. “These barriers are pervasive,” said the complaint. Plaintiff Nelson Fernandez of Palm Beach County suffers from optic neuritis and is visually disabled, with complete blindness in one eye and very limited vision in the other, it said. He attempted to locate an accessibility notice on one of the FEG websites “that would direct him to a webpage with contact information for disabled individuals,” but none existed, it said. Fernandez, as well as others who are blind and with visual disabilities, “will suffer continuous and ongoing harm” from FEG’s “intentional acts, omissions, policies, and practices” unless “properly enjoined” by the court, it said. The suit seeks a number of sanctions and remedies by a “date certain,” including an order requiring FEG “to provide ongoing support for web accessibility by implementing a website accessibility coordinator, a website application accessibility policy, and providing for website accessibility feedback to ensure compliance” with the ADA. FEG didn’t respond to queries seeking comment.