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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEBORAH LAUFER,

Plaintiff,

vs.

U.L.S.T., LLC, d/b/a Waterfront Hotel & Marina,

Defendant.

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20 C 3527

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Deborah Laufer brings this suit against U.L.S.T., LLC, which operates Waterfront Hotel 

& Marina in Johnsburg, Illinois, for its alleged failure to make accessibility information available 

on booking websites as required by the Americans with Disabilities Act of 1990 (“ADA”), 42 

U.S.C. § 12101 et seq. Doc. 1. For ease of reference, both U.L.S.T. and Waterfront Hotel & 

Marina will be referred to as “Waterfront.” Waterfront moves to dismiss under Civil Rule 

12(b)(1) and (6), arguing that Laufer lacks standing and that her complaint fails to state a claim. 

Doc. 13. The motion is denied.

Background

In resolving a Rule 12(b)(1) motion asserting a facial challenge to subject matter 

jurisdiction, as in resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative 

complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. 

Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016) (Rule 12(b)(6)); Silha v. ACT, Inc., 

807 F.3d 169, 173 (7th Cir. 2015) (Rule 12(b)(1)). The court must also consider “documents 

attached to the complaint, documents that are critical to the complaint and referred to in it, and 

information that is subject to proper judicial notice,” along with additional facts set forth in 

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Laufer’s brief opposing dismissal, so long as those additional facts “are consistent with the 

pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal 

quotation marks omitted). The facts are set forth as favorably to Laufer as those materials 

permit. See Domanus v. Locke Lord, LLP, 847 F.3d 469, 478-79 (7th Cir. 2017). In setting forth 

the facts at this stage, the court does not vouch for their accuracy. See Goldberg v. United States, 

881 F.3d 529, 531 (7th Cir. 2018).

Laufer, a resident of Florida, has several disabilities. Doc. 1 at ¶ 1. She has impaired 

vision and limited use of her hands. Ibid. She relies on a wheelchair because she cannot walk 

more than a few steps on her own. Ibid. She can visit a hotel only if it has accessible parking 

and a network of flat, wide, and unobstructed paths for her wheelchair. Ibid. She can use a sink 

only if it does not require tight grasping or twisting and is high enough that she can place her 

legs underneath it, and she needs a toilet with nearby grab bars. Ibid.

As “an advocate of the rights of similarly situated disabled persons,” Laufer acts as a 

“‘tester’ for the purpose of asserting her civil rights and monitoring, ensuring, and determining 

whether places of public accommodation and their websites are in compliance with the ADA.” 

Id. at ¶ 2. In particular, Laufer routinely checks whether online hotel reservation systems such as 

booking.com, orbitz.com, priceline.com, and expedia.com are providing sufficient information 

for individuals with disabilities to determine whether their needs will be met. Doc. 1 at ¶ 9, 

Doc. 23-1 at ¶¶ 2-3. She does so because she herself has difficulty in making travel plans when

unable to ascertain whether a hotel and its rooms are accessible. Doc. 23-1 at ¶ 3. When Laufer

visits an online hotel reservation system and believes it does not comply with the ADA, she 

“request[s] that a law suit be filed to bring the website into compliance with the ADA so that 

[she] and other disabled persons can use it.” Id. at ¶ 4.

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On several occasions in June 2020, Laufer visited Waterfront’s booking page on hotel 

reservation websites. Id. at ¶ 6. She did so “for the purpose of reviewing and assessing the 

accessible features at the hotel and ascertain[ing] whether the websites contain the information 

required by [ADA regulations].” Ibid. She found the information on those websites insufficient

in that they “d[id] not identify any accessible rooms ... or contain any information as to whether 

any rooms or features at the hotel are accessible.” Ibid. Laufer attributes that failure to 

Waterfront, not the websites, because in her experience, “when a third party reservations system 

is not compliant, it is because the hotel did not provide the required information.” Ibid. 

Discussion

Waterfront moves to dismiss on two grounds. First, it argues under Rule 12(b)(1) that 

Laufer lacks standing to bring this suit because she does not allege any specific plans to visit the 

Johnsburg area or to stay at Waterfront. Doc. 14 at 3-5. Second, it argues under Rule 12(b)(6) 

that Laufer does not plausibly allege any violation of the ADA. Id. at 5.

I. Standing

A federal court has subject matter jurisdiction over a claim only if the plaintiff has 

Article III standing to bring it. See MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. 

Co., 935 F.3d 573, 581 (7th Cir. 2019). “[T]he ‘irreducible constitutional minimum’ of standing 

consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly 

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 

favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citation 

omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “To establish injury in 

fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that 

is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 

1548 (quoting Lujan, 504 U.S. at 560).

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To be concrete, the plaintiff’s injury “must be de facto; that is, it must actually exist,” 

meaning that it must be “real” and not “abstract.” Ibid. (internal quotation marks omitted). Both 

“tangible” and “intangible” injuries, even those that are “difficult to prove or measure,” can be 

concrete. Id. at 1549. Concreteness requires at least some “appreciable risk of harm” to the 

plaintiff. Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 727 (7th Cir. 2016); see also 

Spokeo, 136 S. Ct. at 1550 (holding that an injury is not concrete where the defendant’s conduct 

does not “cause harm or present any material risk of harm”); Gubala v. Time Warner Cable, Inc., 

846 F.3d 909, 911 (7th Cir. 2017) (holding that the plaintiff lacked standing where he identified 

no “plausible (even if attenuated) risk of harm to himself”).

In arguing that Laufer lacks standing, Waterfront characterizes her alleged injury as a 

mere “informational” and “dignitary” harm. Doc. 14 at 3-4. And Waterfront suggests that 

because Laufer’s complaint does not allege any plan to stay at the hotel, her injury is not 

“concrete” enough to satisfy Article III. Id. at 4-5. Before turning to those arguments, the court 

addresses as a preliminary matter the declaration Laufer attaches to her opposition brief. 

Doc. 23-1. Laufer avers in that declaration that she in fact has plans to visit the Johnsburg area. 

Id. at ¶ 5. She insists in her brief that “such [a plan] is not necessary for purposes of standing,” 

but asserts that her declaration provides evidence of that plan if one is necessary. Doc. 23 at 15.

Waterfront acknowledges that, at the pleading stage, the court must accept the truth of a 

declaration attached to a plaintiff’s brief opposing dismissal so long as the declaration is

consistent with the complaint. Doc. 24 at 3; see Phillips, 714 F.3d at 1020. But Waterfront

argues that Laufer’s averment that she plans to visit Johnsburg is not consistent with her 

complaint because, as a self-described “tester,” it is inconceivable that she plans to visit the 

environs of every hotel whose page she inspects on reservation websites. Doc. 24 at 3-4. That

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argument fails because Laufer’s declaration does not aver that she plans to visit the environs of

every hotel whose online information she scrutinizes for ADA compliance; rather, she avers only 

that she intends to visit the Johnsburg area. And although the complaint’s characterization of 

Laufer as a tester seeking to vindicate the ADA rights of individuals with disabilities nationwide, 

rather than a traveler seeking lodging in the Johnsburg area, casts some doubt on the veracity of 

her averment, the complaint nowhere alleges that she affirmatively lacks such an intention. 

Thus, the declaration is not inconsistent with the complaint. 

All that said, the declaration does not support Laufer’s argument that she has standing. 

Laufer avers in pertinent part:

I have plans to travel to Illinois as soon as the Covid crisis is over and it 

is safe to travel. I intend to travel all throughout the State, including the areas 

North of Chicago and the Pistakee/Fox Lake area near Johnsburg, and I need 

to stay in hotels when I go. Because the Defendant’s hotel and so many other 

hotel websites fail to allow for booking of accessible rooms and fail to 

provide sufficient information about whether or not the hotels’ features are 

accessible, it makes it extremely difficult for me to make any meaningful 

choice because I am deprived of the information I need to make my plans.

Doc. 23-1 at ¶ 5 (emphasis added). The declaration, which is composed in the present tense, is 

dated August 11, 2020, so it conveys only that, as of August 11, 2020, Laufer had plans to travel 

to the Johnsburg area. But Laufer filed her complaint on June 16, 2020, Doc. 1, so her burden is 

to establish federal jurisdiction as of that date. See Milwaukee Police Ass’n v. Bd. of Fire & 

Police Comm’rs, 708 F.3d 921, 928 (7th Cir. 2013) (“Standing is evaluated at the time suit is 

filed.”); Perry v. Vill. of Arlington Heights, 186 F.3d 826, 830 (7th Cir. 1999) (“Because 

standing goes to the jurisdiction of a federal court to hear a particular case, it must exist at the 

commencement of the suit.”). Laufer’s averment that, as of August 2020, she had plans to visit 

the Johnsburg area neither speaks to her burden nor meets Waterfront’s contention that she 

lacked that intent in June 2020. Given this, the court must decide whether the complaint alone,

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which alleges neither a plan to visit Johnsburg nor an intent not to, establishes that Laufer has 

standing to bring this suit.

Waterfront argues that Laufer’s lack of standing follows as a straightforward matter from 

Carello v. Aurora Policemen Credit Union, 930 F.3d 830 (7th Cir. 2019) (Barrett, J.). Doc. 14 at 

3-4. Carello involved a blind plaintiff—a tester, like Laufer—who used “screen reader” 

software to access and understand websites. 930 F.3d at 832. The plaintiff was unable to access 

the Aurora Policemen Credit Union’s website because it did not support his computer’s software, 

so he sued the Credit Union under the ADA. Id. at 832-33. 

The Seventh Circuit held that the plaintiff lacked standing, but cautioned that its ruling 

was “very narrow.” Id. at 833. The court began by clarifying that a plaintiff’s status as a tester 

does not deprive her of standing. See ibid. (“[B]oth we and the Supreme Court have made it 

clear that tester status does not deprive a plaintiff of standing.”) (citing Havens Realty Corp. v. 

Coleman, 455 U.S. 363, 373-74 (1982), and Murray v. GMAC Mortg. Corp., 434 F.3d 948, 954 

(7th Cir. 2006)). That said, the court noted that “[a] tester must still satisfy the elements of 

standing, including the injury-in-fact requirement.” Ibid.

On that point, the Seventh Circuit explained that the plaintiff’s alleged injuries were “a 

dignitary harm stemming from his inability to use the website and an informational harm 

resulting from a lack of access to information on the website.” Ibid. The court held those 

injuries insufficient. In so holding, the court acknowledged that dignitary and informational

harms can qualify as injuries-in-fact. See id. at 833-34 (“There is no doubt that dignitary harm is 

cognizable; stigmatic injury is ‘one of the most serious consequences’” of discrimination.”) 

(quoting Allen v. Wright, 468 U.S. 737, 755 (1984)); id. at 835 (“An informational injury occurs 

when the defendant refuses to provide the plaintiff with information that a law ... entitles him to 

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obtain and review for some substantive purpose. In such cases, a plaintiff ‘need not allege any 

additional harm beyond’ his failure to receive information that the law renders subject to 

disclosure.”) (citations omitted) (quoting Spokeo, 136 S. Ct. at 1549). But the Seventh Circuit 

held that the plaintiff’s injuries were insufficient because he was “legally barred” in the first 

place from using the Credit Union’s services, which under state law were available only to 

certain city and county employees. See id. at 832-33 (emphasis omitted). As the court 

explained, because state law prevented the plaintiff’s harms from ever “materializ[ing] into a 

concrete injury,” “the Credit Union’s failure to accommodate the visually impaired in the 

provision of its services [could not] affect him personally.” Id. at 834. It followed, the Seventh 

Circuit concluded, that there was “no connection between [the plaintiff] and the Credit Union 

that distinguishe[d] him from anyone else who is ineligible for membership and offended by the 

Credit Union’s failure to comply with the ADA.” Ibid.; see also Clay v. Fort Wayne Cmty. Sch., 

76 F.3d 873, 878-79 (7th Cir. 1996) (noting that “generalized grievances shared in substantially 

equal measure by a large class of citizens” cannot support standing).

Carello took pains to note just how narrow its ruling was, stating: “Neither of [the 

plaintiff’s] alleged injuries passes the [injury-in-fact] test, although we stress that it is for a very 

narrow reason. As the Fourth Circuit recently held in a nearly identical case, a plaintiff who is 

legally barred from using a credit union’s services cannot demonstrate an injury that is either 

concrete or particularized. Our holding is no broader than that.” 930 F.3d at 833 (citing 

Griffin v. Dep’t of Labor Fed. Credit Union, 912 F.3d 649 (4th Cir. 2019)); see also Griffin, 912 

F.3d at 657 (“[T]he case before us today is straightforward and narrow. ... We have no occasion 

to consider here, for example, a case brought by a similarly disabled individual who was eligible 

for credit union membership in the defendant.”). 

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Despite this caveat, Waterfront reads Carello as establishing the broad proposition that a 

tester plaintiff’s lack of an affirmative intent to utilize the defendant’s services necessarily means 

that she lacks standing. Doc. 14 at 4. That was not what Carello held; indeed, the opinion 

recognized that such a proposition would be inconsistent with the Supreme Court’s tester 

standing cases. See 930 F.3d at 833; see also Havens Realty, 455 U.S. at 373-74 (“A tester who 

has been the object of a misrepresentation made unlawful under [the Fair Housing Act] has 

suffered injury in precisely the form the statute was intended to guard against, and therefore has 

standing to maintain a claim for damages under the Act’s provisions. That the tester may have 

approached the real estate agent fully expecting that he would receive false information, and 

without any intention of buying or renting a home, does not negate the simple fact of injury 

within the meaning of [the Act].”).

In sum, Carello does not help Waterfront, as the Seventh Circuit held only that an ADA 

plaintiff lacks standing when there is an independent legal barrier to her ability to utilize the 

defendant’s services. What Carello reinforces is that absent such a legal barrier, informational 

and dignitary injuries do suffice to support Article III standing. And that is exactly what Laufer 

alleges here. She claims that the inadequate disclosures about Waterfront’s accessibility 

“deprive her of the information required to make meaningful choices for travel,” and that she 

“suffer[s] ... frustration and humiliation as the result of the discriminatory conditions present” on 

the hotel’s booking pages. Doc. 1 at ¶ 13. Thus, even absent a concrete plan to visit Johnsburg, 

Laufer has standing to bring this ADA suit. See Carello, 930 F.3d at 834 (“There is no doubt 

that dignitary harm is cognizable ... . A plaintiff ‘“personally denied equal treatment” by the 

challenged discriminatory conduct’ has suffered a concrete injury ... .”) (quoting Allen, 468 U.S. 

at 755); Robertson v. Allied Sols., LLC, 902 F.3d 690, 694 (7th Cir. 2018) (“Even though not all 

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statutory violations inflict concrete personal harm, withholding information when a statute 

requires its publication—sometimes called an ‘informational injury’—may do so. An 

informational injury is concrete if the plaintiff establishes that concealing information impaired 

her ability to use it for a substantive purpose that the statute envisioned.”) (citations omitted).

II. Failure to State a Claim

Waterfront next submits that the complaint fails to state a claim, arguing that the ADA 

“requires the hotel to accommodate Ms. Laufer’s disabilities [only] if she desires to stay there.” 

Doc. 14 at 5. As explained above, however, Laufer’s alleged injury is not the inability to stay at 

Waterfront; rather, it is the inability to determine whether she can stay there, as well as the 

stigmatic injury resulting from Waterfront’s failure to make accessibility information available.

Laufer alleges that Waterfront’s failure in this respect violates a regulation promulgated 

to implement the ADA, Doc. 1 at ¶ 7—specifically, 28 C.F.R. § 36.302(e)(1)(ii), which provides: 

“A public accommodation that owns ... or operates a place of lodging shall, with respect to 

reservations made by any means, including by telephone, in-person, or through a third party[,] ... 

[i]dentify and describe accessible features in the hotels and guest rooms offered through its 

reservations service in enough detail to reasonably permit individuals with disabilities to assess 

independently whether a given hotel or guest room meets his or her accessibility needs ... .” See 

also Nondiscrimination on the Basis of Disability by Public Accommodations and in 

Commercial Facilities, 75 Fed. Reg. 56,236, 56,274 (Sept. 15, 2010) (“Hotels and other places of 

lodging that use third-party reservations services must make reasonable efforts to make 

accessible rooms available through at least some of these services and must provide these thirdparty services with information concerning the accessible features of the hotel and the accessible 

rooms.”). Waterfront does not argue that this regulation is inapplicable, nor does it contest that a 

violation of the regulation gives rise to an ADA suit. Doc. 14 at 5. Given this, the complaint 

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will not be dismissed under Rule 12(b)(6). See Kennedy v. Siesta Inn & Suites, Inc., __ F. App’x 

__, 2020 WL 5820871, at *2-3 (11th Cir. Sept. 30, 2020) (per curiam) (holding that an ADA 

tester plaintiff’s similar complaint stated an ADA claim for a violation of § 36.302(e)(1)(ii)).

Conclusion

Waterfront’s motion to dismiss is denied. It shall answer the complaint by November 18, 

2020.

November 4, 2020 ___________________________________

United States District Judge

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