The opinion of the court was delivered by: Kugler, District Judge
Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, prohibits discrimination "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 . . . or operates a place of public accommodation." Id. § 12182(a). The fast food restaurants owned and operated by Defendants McDonald's Corporation ("McDonald's") and its franchisee Ygraine, LLC ("Ygraine") are places of public accommodation that are alleged by Plaintiffs Robert Clark, a wheelchair-bound paraplegic, and A.D.A. Access Today ("Access Today"), a non-profit association, to contain "architectural barriers" that discriminate against disabled persons in violation of Title III, as well as the anti-discrimination laws of nine States. This suit for injunctive relief and damages was commenced as a bilateral class action on January 22, 2002, by the filing of Plaintiffs' original complaint. See Fed. R. Civ. P. 3. After McDonald's moved to dismiss, Plaintiffs amended their pleading as of right on September 20, 2002. See Fed. R. Civ. P. 15(a). Pending before the Court are the motions of McDonald's (1) to dismiss the amended complaint, or in the alternative, to dismiss or strike its class action allegations, and (2) for a more definite statement. Ygraine has joined in McDonald's motions without submitting separate moving papers. The Court heard oral argument on the motions on January 28, 2003, and for the reasons that follow, grants in part and denies in part both motions.
Plaintiff Clark resides in Pennsylvania and has "visited numerous McDonald's brand restaurants, within the State of New Jersey and elsewhere." (Am. Compl. ¶ 11.) Specifically, Clark is alleged to have visited each of 23 corporate-owned McDonald's restaurants in New Jersey, (id. ¶ 38(1)-(23)), as well as some (the amended complaint does not specify which) of 38 franchised restaurants in New Jersey and Pennsylvania, (id. ¶ 38(1)-(38)). As to these 38 franchises, if Clark himself has not visited the franchise, then "at least one member" of Access Today has done so. (Id.) The McDonald's restaurant in Blackwood, New Jersey, which is the only facility identified in the amended complaint to be operated by franchisee Ygraine, (see id. ¶ 21), has been visited by "at least one member" of Access Today, (see id. ¶ 38(23)), but it is not alleged that Clark himself was the visitor. The amended complaint also identifies 32 corporate-owned McDonald's restaurants in Wisconsin, (id. ¶ 39(1)-(32)), but it is not alleged that Clark, or any other member of Access Today, has actually visited these restaurants. As to the Wisconsin restaurants, it is only alleged-as it is with all McDonald's-brand restaurants nationwide-that Access Today's members "and other similarly situated persons either regularly enter and/or use [such] restaurants, would like to enter and/or use [such] restaurants, or may enter and/or use [such] restaurants in the future." (Id. ¶ 51 (emphasis added).)
Plaintiff Access Today is a non-profit national advocacy organization headquartered in the Delaware Valley, the "purpose" of which "is to educate persons and businesses on accessibility issues and to ensure full participation of all people with a broad range of physical disabilities in every community." (Id. ¶¶ 13-14.) The organization's members include disabled and non-disabled persons who live throughout the United States. (Id. ¶¶ 13, 17.) In furtherance of its purpose, Access Today is alleged "to monitor places of public accommodation for compliance with the ADA, [to] disseminate that information to its members and other disabled persons, and [to] ensure that people with disabilities have equal access to, and do not encounter discrimination in, places of public accommodation." (Id. ¶ 14.) Access Today claims that it enjoys "organizational standing" to bring this action in its own right, as well as "associational standing" to bring this action on behalf of its disabled members.
The gravamen of the amended complaint is that McDonald's brand restaurants throughout the United States discriminate against disabled persons (1) in contravention of 42 U.S.C. § 12182(b)(2)(A)(iv) by "fail[ing] to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities . . . where such removal is readily achievable," (2) in contravention of 42 U.S.C. § 12183(a)(2) by, with respect to altered facilities, "fail[ing] to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs," and (3) in contravention of 42 U.S.C. § 12183(a)(1) by "fail[ing] to construct and design [new] facilities . . . that are readily accessible to and usable by individuals with disabilities, except where . . . structurally impracticable." (See id. ¶ 42.) Plaintiffs rely principally upon the Defendants' alleged non-compliance with certain of the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), found at 28 C.F.R. part 36 Appendix A. (See id. ¶ 46(a)-(z).) Plaintiffs also contend that Defendants' violations of the ADA constitute per se violations of certain anti-discrimination statutes of the States of New Jersey, California, Vermont, Arizona, Wisconsin, Idaho, Ohio, Nevada and Michigan, each of which are said (unlike Title III) to permit recovery in damages.
Plaintiffs seek injunctive relief under the ADA on behalf of a class of disabled individuals against a class of "owner/operators of McDonald's brand restaurants" of which individual Defendants McDonald's and Ygraine are said to be representative. The "Plaintiff Class" is defined in the amended complaint as "all disabled persons, as that term is defined by the ADA, residing throughout the United States of America." *fn1 (Id. ¶ 2.) The "Defendant Class" consists of "all owner/operators of McDonald's brand restaurants throughout the United States." (Id. ¶ 4; see id. ¶ 28.)
Plaintiffs also seek damages and injunctive relief under the anti-discrimination statutes of the States of New Jersey, California, Vermont, Arizona, Wisconsin, Idaho, Ohio, Nevada and Michigan on behalf of a subclass of disabled patrons against a subclass of restaurant "owner/operators" in those States, of which individual Defendants McDonald's and Ygraine are again said to be representative. (Id. ¶ 5.) The Plaintiff Subclass consists of "disabled persons . . . residing in the States of New Jersey, California, Vermont, Arizona, Wisconsin, Idaho, Ohio, Nevada, and Michigan (the `Subclass States')." *fn2 (Id. ¶ 3.) The Defendant Subclass consists of "all owner/operators of McDonald's brand restaurants throughout the Subclass States." (Id. ¶ 5; see id. ¶ 28.)
In their amended complaint, Plaintiffs specify Rule 23(b)(2) as the appropriate basis for the class certifications they propose. However, in a footnote in their memorandum of law opposing Defendants' motion to dismiss, Plaintiffs have also proposed certification under Rule 23(b)(3).
The principal argument raised by the Defendants in support of their motion to dismiss is that Plaintiffs lack standing to bring this suit. Even if Plaintiffs enjoy standing, say the Defendants, they cannot satisfy the requisites of Rule 23 for maintenance of the suit as a class action, such that, at a minimum, the class action allegations must be dismissed or stricken. Although Plaintiffs respond to both of these arguments, they argue that the latter is "improperly premature" in a Rule 12 posture. (Pls.' Mem. Law Opp'n Def.'s Mot. Dismiss Am. Compl. at 17.) Instead, contend Plaintiffs, whether a class action may be maintained is a question properly deferred until such time as Plaintiffs move, under Rule 23, for class certification. A preliminary issue, therefore, is whether, or to what extent, the Court may consider Defendants' Rule 23 arguments under the procedural posture of this case.
In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), the Supreme Court observed that in cases where class certification issues are "`logically antecedent' to Article III concerns and themselves pertain to statutory standing," then the issue of Rule 23 certification should be treated before standing. Id. at 831 (citation omitted). This is an exception to the usual rule that standing is a threshold question that must be decided prior to class certification issues. The Ortiz exception appears "to rest on the long-standing rule that, once a class is properly certified, statutory and Article III standing requirements must be assessed with reference to the class as a whole, not simply with reference to the individual named plaintiffs." Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir. 2002). Accordingly, Rule 23 certification should be addressed first in those cases where it is the possibility of class certification that gives rise to the jurisdictional issue as to standing. See Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 333 n.2 (5th Cir. 2002). Stated differently, the Ortiz exception treating class certification as the antecedent consideration does not apply if the standing issue would exist regardless of whether the named plaintiff filed his claim alone or as part of a class. See id.
This is a case, like Ortiz, in which certain issues of class certification are "logically antecedent" to those of standing. In particular, the Defendants' argument that Clark does not enjoy standing to assert claims on behalf of class members regarding restaurants that Clark has not visited, or in states Clark has not visited, is an issue that simply would not arise but for Clark's capacity as a putative class representative. Cf. In re Buspirone Patent Litig., 185 F. Supp. 2d 363, 377 (S.D.N.Y. 2002) (considering it appropriate, under Ortiz, to decide class certification before resolving Article III standing challenges, where defendant had argued that putative representative plaintiffs, who had purchased defendant's product in only 15 states, lacked standing to assert claims on behalf of purchasers in the remaining 35 states). On the other hand, the Defendants' argument that Access Today enjoys neither organizational standing nor associational standing is an issue that would exist regardless of whether Access Today brought suit individually or on behalf of a putative class. Accordingly, the Court shall address Access Today's standing before addressing issues of class certification, but shall address issues of class certification (insofar as the propriety of certification turns on matters of law that can be resolved under the procedural posture of this case *fn3 ) before addressing the question of Clark's standing.
1. procedural rules applicable when a challenge to standing is made on the basis of the pleadings
Standing "is a threshold jurisdictional requirement, derived from the `case or controversy' language of Article III of the Constitution." Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997); see Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 102 (1998). The party invoking federal jurisdiction bears the burden of establishing standing "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); accord FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996).
At the pleading stage, therefore, the plaintiff must allege facts sufficient to establish his standing to invoke the court's jurisdiction. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) ("[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor, clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. Thus, [plaintiffs] in this case must allege facts essential to show jurisdiction. If they fail to make the necessary allegations, they have no standing." (internal alterations, omissions, quotation marks, and citations omitted)); Warth v. Seldin, 422 U.S. 490, 517-518 (1975) ("The rules of standing . . . are threshold determinants of the propriety of judicial intervention. It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers."); Anjelino v. N.Y. Times Co., 200 F.3d 73, 88 (3d Cir. 2000) ("Standing is established at the pleading stage by setting forth specific facts [satisfying the elements of standing].");
Although it is the duty of the plaintiff to "clearly and specifically set forth facts sufficient to satisfy [the] standing requirements," the level of specificity necessary to avoid dismissal for lack of standing should not be "exaggerated." Hosp. Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83, 86-87, 88 (3d Cir. 1991). At the pleading stage, the court may "presume that the general allegations in the complaint [as to standing] encompass the specific facts necessary to support those allegations." Steel Co., 523 U.S. at 104. Alternatively, however, it is "proper," and "`within the trial court's power,'" even on a motion to dismiss, "to require the [plaintiff] to go beyond . . . general allegations in the complaint and allege particularized facts supportive of its standing." Newark Branch NAACP v. Town of Harrison, 907 F.2d 1408, 1415 & n.10 (3d Cir. 1990) (quoting Warth, 422 U.S. at 501-02). When a challenge to standing is made on the basis of the pleadings, as here, the court must "`accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party.'" Pennell v. City of San Jose, 485 U.S. 1, 7 (1988) (quoting Warth, 422 U.S. at 501); accord Penn. Psych. Soc'y v. Green Spring Health Services, Inc., 280 F.3d 278, 286 (3d Cir. 2002), cert. denied, 123 S. Ct. 102 (2002).
2. constitutional standing requirements
The Third Circuit has articulated three requirements for Article III constitutional standing:
(1) the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 484-85 (3d Cir. 1998) (citing Defenders of Wildlife, 504 U.S. at 560-61); accord Soc'y Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 175-76 (3d Cir. 2000). These requirements have been described as "immutable," and as the "irreducible constitutional minimum" of standing under the "case or controversy" clause, Fair Hous. Council v. Montgomery Newspapers, 141 F.3d 71, 74 (3d Cir. 1998) (quoting Bennett v. Spear, 520 U.S. 154, 162 (1997), and Defenders of Wildlife, 504 U.S. at 560-61), language signifying not only that the plaintiff in every case must satisfy these "injury-in-fact," "causation" and "redressibility" elements, id., but that they cannot be abrogated by legislative enactment, see Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 487 n.24 (1982); Montgomery Newspapers, 141 F.3d at 74 (quoting Bennett, 520 U.S. at 162). Relevant to the case at bar, the same three elements must be satisfied whether the plaintiff is an individual or an organization suing on its own behalf. See Ass'n of Community Orgs. for Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999); Md. Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1250 (4th Cir. 1991); Am. Legal Foundation v. FCC, 808 F.2d 84, 89 (D.C. Cir. 1987).
3. prudential limits on standing
In addition to the requirements of Article III standing is a second tier of prudential limitations that "deal with who is authorized to invoke the courts' decisional and remedial powers." Montgomery Newspapers, 141 F.3d at 74. The Supreme Court has summarized these prudential limitations as follows:
Apart from [the] minimum constitutional mandate, this Court has recognized other limits . . . . First, the Court has held that when the asserted harm is a "generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. Second, even when the plaintiff has alleged injury sufficient to meet the "case or controversy" requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Without such limitations . . . the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. Warth, 422 U.S. at 499-500 (citations omitted); accord Montgomery Newspapers, 141 F.3d at 74-75.
A third prudential limitation on standing is that the "plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision . . . invoked in the suit." Bennett, 520 U.S. at 162; accord Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 226 (3d Cir. 1998).
Unlike the Article III standing requirements, the prudential standing limitations are "not the product of constitutional restraints on the power of the federal courts to hear cases." Conte Bros., 165 F.3d at 227. Therefore Congress, in enacting particular legislation, "can eliminate prudential restrictions on standing if it so desires." Id.; see Warth, 422 U.S. at 501 ("Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules."). As a matter of statutory interpretation, however, an enactment is presumed to incorporate background prudential standing principles "unless expressly negated by Congress." Conte Brothers, 165 F.3d at 227 (emphasis original) (citing Bennett, 520 U.S. at 164-65).
4. associational standing
Even where an association lacks standing to sue in its own right because it has not itself suffered an injury-in-fact, it will nevertheless have "standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977); accord Penn. Psych. Soc'y, 280 F.3d at 283. The litigation tends to concentrate on the first and final prongs of this test, as it does in the case at bar.
In determining whether the first prong of this test is met, the court analyzes whether the individual members on whose behalf the suit is brought would themselves satisfy the tripartite Article III standing test had they sued individually. See, e.g., Hosp. Council of W. Pa., 949 F.2d at 86-88. In determining whether the last prong of this test is met, the result often turns upon whether the claim advanced by the association on behalf of its members is for damages. It is almost a bright-line rule "that requests by an association for declaratory and injunctive relief do not require participation by individual association members," id. at 89, but conversely, "damages claims usually require significant individual participation, which fatally undercuts a request for associational standing," Penn. Psych. Soc'y, 280 F.3d at 284.
B. ACCESS TODAY LACKS ORGANIZATIONAL STANDING.
Defendants contend that Access Today lacks standing to sue on its own behalf, i.e., "organizational standing." In particular, it is Defendants' position, first, that the allegations in the complaint demonstrate that the only injury Access Today has suffered from the alleged discrimination at McDonald's brand restaurants is the deflection of organizational resources away from educational, informational, and counseling efforts towards the instant lawsuit, which, as a matter of Third Circuit precedent, is insufficient to satisfy the injury-in-fact prong of Article III standing. Alternatively, Defendants contend that the language of the private enforcement provision of Title III only confers a cause of action upon a "person who is being subjected to discrimination," such that Access Today, which cannot fit that definition, lacks standing to sue on its own behalf. (Id. at 13-14.)
Defendants' first contention may be easily disposed of. In Fair Housing Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71 (3d Cir. 1998), the Third Circuit held "that the pursuit of litigation alone cannot constitute an injury sufficient to establish standing under Article III." Id. at 80. In doing so, it agreed with the analysis set forth by the District of Columbia Court of Appeals that "`[w]ere the rule otherwise, any litigant could create injury in fact by bringing a case, and Article III would present no real limitation.'" Id. at 79 (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). Therefore Defendants are correct (and Plaintiffs concede) that Access Today must allege something more than litigation expense to establish an injury for constitutional purposes. However, a fair reading of the amended complaint reveals that it has done so. In particular, Access Today has alleged a "frustration of mission": *fn4
Access Today's goal of making public accommodations throughout the United States accessible to people with disabilities has been made more difficult for several reasons . . .
a. Defendants' discrimination, in and of itself, makes public accommodations in the United States less accessible to people with disabilities;
b. Defendants' discrimination segregates people with disabilities, thereby perpetuating discriminatory attitudes in the public at large;
c. Defendants' discrimination has thus required, and continues to require, [Access Today] to make greater effort, and allocate additional resources, to counsel those injured by such discrimination, to educate the public that it is wrong to discriminate against people with disabilities, and otherwise to counteract the adverse impact of discrimination. (Id. ¶ 55(a)-(c) (emphasis added).) *fn5
This kind of injury to Access Today's mission is sufficient to constitute an injury-in-fact for Article III standing purposes. See Montgomery Newspapers, 141 F.3d at 76 ("[W]here discriminatory `practices have perceptibly impaired [an organization's ability to carry out its mission], there can be no question that the organization has suffered an injury in fact.'" (second alteration original) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).
On the other hand, Defendants' second argument is persuasive. Title III of the ADA proscribes discrimination in places of public accommodation against persons with disabilities, see 42 U.S.C. § 12182(a), and confers a private right of action for preventative relief, including an application for a permanent or temporary injunction or restraining order, see id. § 12188(a)(1) (referencing § 2000a-3(a)); see also id. § 12188(a)(2), upon "any person who is being subjected to discrimination on the basis of disability . . . or who has reasonable grounds for believing that such person is about to be subjected to discrimination." Id. § 12188(a)(1) (emphasis added). *fn6 In the judgment of the Court, this language erects a prudential barrier precluding organizational standing to Plaintiff Access Today.
Both individuals and entities can suffer discrimination redressable under Title III of the ADA, as made clear by Title III's "association provision":
It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. 42 U.S.C. § 12182(b)(1)(E) (emphasis added).
However, the enforcement provision of Title III unambiguously requires that the "person" (be it an individual or entity) possessing the cause of action is being subjected, or is under threat of being subjected, to discrimination. Because there is no set of facts alleged in the amended complaint under which it could be said that Access Today is itself suffering, or under threat of suffering, discrimination at the hands of the Defendants, Access Today lacks standing to sue. *fn7 Stated otherwise, if the facts alleged in the amended complaint are assumed to be true, then Access Today has suffered or is suffering "frustration of mission" injuries as a result of the Defendants' discrimination against others, for which the ADA provides it no remedy.
The inability of Access Today to sue in its own right may be attributed to a prudential limitation on standing under Title III of the ADA. In that regard, the enforcement provision of Title III, conferring a cause of action upon "any person who is being subjected to discrimination on the basis of disability," id. § 12188(a)(1) (emphasis added), may be contrasted with those of Title I (prohibiting discrimination in employment), and Title II (prohibiting discrimination by public entities), both of which confer causes of action upon "any person alleging discrimination on the basis of disability," id. §§ 12117(a), 12133 (emphasis added). The more broadly worded language of the latter provisions has been observed to evince a congressional intention to define standing to bring a private action as broadly as is permitted by Article III of the Constitution, thus removing prudential barriers to standing. See Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997); accord MX Group, Inc. v. City of Covington, 293 F.3d 326, 333-35 (6th Cir. 2002). Similarly, the enforcement provision of Title IV (prohibiting retaliation), which confers a cause of action upon "aggrieved persons," 42 U.S.C. § 12203(c), would appear so broad as to eliminate prudential standing limitations for a plaintiff suing under that Title. Cf. Gen. Instrument Corp. v. Nu-Tek Elec. & Mfg., Inc., 197 F.3d 83, 87-89 (3d Cir. 1999) (congressional provision conferring standing on "any person aggrieved" held to constitute an explicit negation of prudential standing requirements).
By contrast, the enforcement provision of Title III has been held not to alter prudential standing requirements. See Moreno v. G & M Oil Co., 88 F. Supp. 2d 1116, 1117 (C.D. Cal. 2000) (concluding, as a matter of prudential standing, that the language of § 12188(a)(1), requiring "that a plaintiff actually be `subjected to discrimination' or be `about to be subjected' to it," did not permit a plaintiff encountering architectural barriers at one gas station to assert claims on behalf of others similarly situated with respect to 82 other gas stations that the plaintiff had not visited); Hoepfl v. Barlow, 906 F. Supp. 317, 323 & n.13 (E.D. Va. 1995) ("Congress would have to speak with definite clarity if it meant to grant standing to a plaintiff with no particularized injury who wished to assert the rights of others not before the Court. This statute is not an example of that definite clarity. Nothing in the language of either § 12188 or the [therein] cross-referenced § 2000a-3(a) suggests that it was intended to alter the normal prudential rules on standing." (footnote omitted)). *fn8
The Court holds that the language of the enforcement provision of Title III of the ADA does not evince a congressional intent to eliminate a prudential barrier to the standing of an organization to sue to remedy injury it suffers as a result of discrimination against the disabled, where the organization is not itself being subjected to, nor is itself under threat of being subjected to, such discrimination. *fn9 The Court is guided by Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221 (3d Cir. 1998), in which the Third Circuit made clear that "Congress is presumed to incorporate background prudential standing principles, unless the statute expressly negates them." Id. at 227. In Conte Bros., the Third Circuit compared the language "any person" as used in the Endangered Species Act of 1973, with the language "any person who believes that he or she is likely to be damaged," as used in the Lanham Act provision at issue in that case. Id. at 228. While the former was described as "an authorization of remarkable breadth when compared with the language Congress ordinarily uses," the panel found it "significant" that the latter "limit[ed] the class of persons entitled to sue to those who can trace their injury to the . . . conduct proscribed by the act," and found no abrogation of prudential standing principles under the Lanham Act. Id.
The analysis in Conte Bros. is important because the enforcement provision of Title III is, if anything, more restrictive than the Lanham Act provision found not to negate prudential standing principles. In that regard, the language of § 12188(a)(1) does more than limit the class of persons entitled to sue to those who can trace their injury to proscribed discrimination; it limits the class to those who are being, or are under threat of being, subjected to proscribed discrimination. Thus, a comparison between the Lanham Act provision at issue in Conte Bros. and the ADA provision at issue here indicates both (1) that Congress did not employ language sufficient to abrogate prudential standing requirements under the latter, and (2) that Access Today's ability to trace its "frustration of mission" injuries to the proscribed conduct of the Defendants is not enough to demonstrate that it has been "subjected to" such conduct, as required by Title III. *fn10 Accordingly, prudential standing principles bar Access Today from enforcing the ADA on its own behalf. *fn11 The question to which the Court now turns is whether Access Today may enforce the ADA on behalf of its members.
C. ASSOCIATIONAL STANDING OF ACCESS TODAY
Defendants contend that Access Today lacks associational standing to represent its members for failure to satisfy the first and last prongs of the Hunt test, identified supra Part II.A.4. The Court has little trouble concluding that Access Today lacks associational standing to advance on behalf of its members damages claims under the anti-discrimination statutes of the Subclass States. Whether Access Today enjoys associational standing to assert claims for declaratory and injunctive relief under the ADA, or under the anti-discrimination statutes of the Subclass States, *fn12 is a closer question.
1. access today lacks associational standing to assert damages claims.
In Pennsylvania Psychiatric Society v. Green Spring Health Services, Inc., 280 F.3d 278 (3d Cir. 2002), the Third Circuit re-affirmed the relatively bright-line rule that "`that an association's action for damages running solely to its members would be barred for want of the association's standing to sue.'" Id. at 284 (quoting United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546 (1996)). The underlying premise of this rule is that "damages claims usually require significant individual participation" as would flunk the third prong of the Hunt test. Id. There may be an exception to the rule forbidding associational standing on damages claims where an association seeks only nominal damages on behalf of its members without reference to their individual circumstances. See Fla. Paraplegic Ass'n v. Martinez, 734 F. Supp. 997, 1000-01 (S.D. Fla. 1990).
In this case, however, Plaintiffs seek "compensatory damages" for violations of the Subclass States' anti-discrimination laws, (Am. Compl. Prayer ¶ l), which as a matter of state law, would need to be proven by reference to facts surrounding individualized incidents of disability-based discrimination suffered by Access Today's members at McDonald's brand restaurants in the Subclass States. See, e.g., Long v. Coast Resorts, Inc., 32 F. Supp. 2d 1203, 1208-09 (D. Nev. 1999) (observing that "[l]iability may not be found in a vacuum" and denying plaintiffs' motion for summary judgment as to liability for damages under Nev. Rev. Stat. § 651.090 where plaintiffs had "not show[n] that they were forced to seek accommodations elsewhere or even suggest[ed] that they were injured, monetarily, physically, or emotionally, by the [architectural barriers] which they saw"), rev'd on other grounds, 267 F.3d 918 (9th Cir. 2001); Boemio v. Love's Rest., 954 F. Supp. 204, 209 (S.D. Cal. 1997) (finding that wheelchair-confined plaintiff forced to urinate in parking lot due to inaccessibility of restaurant restrooms had failed to prove damages above statutory minima of Cal. Civ. Code § 52 where such experience was "certainly disconcerting" but plaintiff had not "soiled himself, been observed by others, ridiculed, accosted or physically injured" or suffered property damage or criminal sanctions for his behavior). Thus, the significant individualized participation that would be required of its members precludes Access Today from pressing compensatory damages claims on their behalf.
2. access today enjoys associational standing to assert injunctive claims.
It is a closer question whether Access Today lacks associational standing to pursue claims for declaratory and injunctive relief. Defendants have challenged Access Today's ability to meet the first and third prongs of the Hunt test. These prongs are addressed in reverse order.
a. Individualized Participation of Access Today's Members on Injunctive Claims
Although it is usually the case "that requests by an association for declaratory and injunctive relief do not require participation by individual association members," Hosp. Council of W. Pa., 949 F.2d at 89, that rule is not invariable. In Pennsylvania Psychiatric Society, the Third Circuit expressed doubt as to whether certain claims for declaratory and injunctive relief, brought by an association on behalf of its members, could be established without significant individual participation. See 280 F.3d at 286.
In that case, an association of licensed psychiatrists brought suit against Green Spring Health Services, Inc. ("Green Spring"), an administrator of managed health care plans that had entered into individual contracts ("Provider Agreements") with its member psychiatrists to form a "provider network" of psychiatric services. Id. at 281-82. The association also sued various health maintenance organizations ("HMOs") that had contracted with Green Spring to provide the psychiatric services to the HMOs' subscribers. Id. at 281. The association sought damages, as well as declaratory and injunctive relief, on the grounds that Green Spring and the HMOs (collectively, the "managed care organizations" or "MCOs") had unfairly profited at the expense of the association's members by
refus[ing] to authorize and provide reimbursement for medically necessary mental health treatment; interfer[ing] with patients' care by permitting non-psychiatrists to make psychiatric treatment decisions; violat[ing] Provider Agreements by improperly terminating relationships with certain psychiatrists; and breach[ing] the contractual duties of good faith and fair dealing by failing to timely pay psychiatrists and by referring patients to inconvenient treatment locations, thereby depriving some patients access to treatment. Id. at 282.
The MCOs moved to dismiss the complaint for lack of the association's standing to sue on behalf of its member psychiatrists. Id. at 285. They argued that the medical coverage decisions on psychiatric care forming the basis for the association's allegations were "fact-intensive inquiries" that would flunk the third prong of the Hunt test. See id. The district court, canvassing the association's allegations, found that each would require "significant individual participation" by the association's member psychiatrists, and granted the MCOs' motion. Id. at 286.
On appeal, the Third Circuit "agree[d] that conferring associational standing would be improper for claims requiring a fact-intensive-individual inquiry," id., which included the association's claims for damages on behalf of its members, id. at 284, 286 n.6. As to the association's declaratory and injunctive claims, however, the Third Circuit reversed, basing its decision on allegations in the complaint which, taken as true, indicated that it might be possible for the association to establish those claims without significant individual participation:
[T]he Pennsylvania Psychiatric Society maintains the heart of its complaint involves systemic policy violations that will make extensive individual participation unnecessary. In effect, the Society contends the methods the MCOs employ for making decisions-e.g., authorizing or denying mental health services, credentialing physicians, and reimbursement-represent breaches of contract as well as tortious conduct. Therefore, insofar as its allegations concern how the MCOs render these decisions, the Society's complaint involves challenges to alleged practices that may be established with sample testimony, which may not involve specific, factually intensive, individual medical care determinations. If the Pennsylvania Psychiatric Society can establish these claims with limited individual participation, it would satisfy the requirements for associational standing. While we question whether the Society can accomplish this, at this stage of the proceedings on a motion to dismiss for lack of standing, we review the sufficiency of the pleadings and must accept as true all material allegations of the complaint and must construe the complaint in favor of the ...