Supreme Court Sidesteps Ruling on ADA ‘Tester’ Case... For Now

The Supreme Court earlier this month declined to address who has standing to sue a business whose website violates the Americans with Disabilities Act (ADA). In Acheson Hotels, LLC v. Laufer, the justices unanimously remanded the case back to the lower court with instructions to dismiss it as moot, sidestepping an examination of the merits of a case with national implications for hotels and potentially other public accommodations as well.

Background

Deborah Laufer is a prolific litigant with physical disabilities and vision impairments who has filed over 600 claims against various hotels for failing to include accessibility statements on their websites. Significantly, Laufer is a “tester” plaintiff who had no intention of staying at the hotels she sued. Rather, Laufer found her targets by combing the internet for hotel websites that did not provide sufficient information on accessible accommodations as required by the ADA. Hotels must include enough of their accessibility features on their websites so that a person with a disability can judge whether the hotel would be safe and usable. In this case, Laufer initially sued Acheson Hotels LLC, which operates The Coast Village Inn and Cottages in Maine, alleging that its website did not provide sufficient information on accessible accommodations available at the hotel.

A federal district court dismissed the lawsuit, finding Laufer lacked standing to sue because she had no plans to visit the hotel herself, thus suffering no injury as a result of the lack of information on the hotel website. Laufer appealed the ruling to the 1st U.S. Circuit Court of Appeals, which reversed the district court decision, concluding that Laufer’s lack of intent to book a room at Acheson’s hotel did not preclude her from suffering injury to establish standing.

In isolation, this case may seem insignificant. But similar cases filed by Laufer across the country have created a split among the Courts of Appeals. The 2nd, 5th, and 10th circuits have rejected Laufer’s standing in “tester” cases, while the 1st, 4th and 11th circuits have held that Laufer’s allegations such as those in Acheson Hotels are sufficient to establish standing. This circuit split prompted the Supreme Court to grant certiorari to hear Acheson Hotels.

Prior to oral arguments, however, Laufer voluntarily dismissed her suit claiming the case was moot. She sought to dismiss not only Acheson Hotels but also separately moved to dismiss with prejudice all other cases she currently had active or pending in federal court after one of her attorneys was suspended and admonished by the U.S. District Court of Maryland for lying in fee petitions and during settlement negotiations on another “tester” case.[i]

Acheson argued, somewhat unusually, that Laufer’s case should not be dismissed and that the Supreme Court should decide the merits of the standing issue. In its brief, Acheson argued, “[a] cottage industry has arisen in which uninjured plaintiffs lob ADA lawsuits of questionable merit, while using the threat of attorney’s fees to extract settlement payments. These lawsuits have burdened small businesses, clogged the judicial system, and undermined the Executive Branch’s exclusive authority to enforce federal law.”

The Holding

In its 9-0 decision, the Supreme Court vacated the case as moot. Justice Amy Coney Barrett wrote the case was moot because Laufer “voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer.” In so holding, the court sidestepped determining whether a tester is injured by the absence of accessibility information on a hotel website about rooms he or she had no plans to ever reserve or stay in to establish standing or if she was merely suing to enforce the law. Barrett noted “mootness is easy and standing is hard” but left the door open on the issue, stating it “might exercise [its] discretion differently in a future case.”

Concurring Opinion

In his concurring opinion, Justice Clarence Thomas wrote he would have held Laufer lacked standing and dismissed her case as a “transparent tactic for evading [the court’s] review.” Thomas focused on the fact that while a violation of the ADA may have occurred, Acheson did not violate Laufer’s rights or cause her to suffer any injury. Citing a law review article by late Justice Antonin Scalia, Thomas says the court should be asking Laufer, “[w]hat’s it to you?” He concluded that because no violation of Laufer’s personal rights had occurred, she lacked standing to bring the case and was instead attempting to vindicate a public right whose protection and enforcement is reserved for the discretion of the executive branch.

Takeaways

“Though Laufer’s case is dead, the circuit split is very much alive,” Barrett acknowledged in the majority opinion. The decision in Acheson means hotels in the 1st, 4th and 11th circuits can continue to be exposed to “tester” suits until the Supreme Court rules on the merits of the standing issue. Hotels and other businesses likely will settle the lawsuits “regarding it as pointless to challenge circuit precedent in this Court,” Barrett wrote, and risk a loss when a tester can simply dismiss their case as moot at their convenience to evade the Supreme Court’s review.

In light of Acheson, hotels and other public accommodations subject to Title III of the ADA should ensure their websites are up to date and compliant with applicable accessibility standards under federal, state and local laws to avoid claims by testers and aggrieved plaintiffs alike.

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