Earlier this week, the U.S. Supreme Court announced it will hear the case of Acheson Hotels, LLC v. Laufer1 and finally resolve the question of whether “tester” plaintiffs have standing to sue a hotel company that fails to adequately describe the accessibility of the hotel on its reservation websites, as required by Title III of the Americans with Disabilities Act (“ADA”).
It’s a question that has divided the circuit courts for years, with the Fourth, Ninth, Eleventh, and (most recently) First Circuits answering the question in the affirmative and the Second, Fifth, and Tenth Circuits taking the position that a plaintiff must actually show an intention to patronize a hotel in order to establish “Article III standing,” which operates as a limit on a federal court’s jurisdiction.
Like the thousands of other Title III ADA actions filed every year, Acheson Hotels stems from the portion of the ADA and its implementing regulations that require hotel owners and operators to identify and describe accessible features of a hotel and guest rooms offered through its reservation services “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.” 28 C.F.R. § 36.302(e)(1)(ii).
Laufer is a self-proclaimed ADA “tester” who has filed more than 600 ADA-related lawsuits in federal courts throughout the country since 2018. Although the fact patterns of Laufer’s cases are often nearly identical, the Florida resident has obtained conflicting judgments, from coast to coast, that track with the entrenched circuit conflict. The district court in Maine initially dismissed the lawsuit against Acheson Hotels, concluding that Laufer could not be injured by the absence of information on a website for a hotel she never planned to visit. But, in October of last year, the First Circuit reversed, holding that Laufer suffered a concrete injury in the form of alleged frustration and humiliation by not being able to obtain adequate information about whether she could take advantage of the hotel’s accommodations.2 The First Circuit determined it was bound by the Supreme Court opinion in Havens Realty Corp. v. Coleman3 , a 1982 decision in which the Court held that a Black “tester” plaintiff had standing to bring a Fair Housing Act claim, even though she had no intention of renting an apartment.4
Over the years, tester plaintiffs like Laufer have formed a cottage industry of plaintiffs, and plaintiff’s attorneys, who comb the web looking for non-compliant websites and subsequently file lawsuits in plaintiff-friendly jurisdictions without ever visiting the place of public accommodation. The lawsuits purport to seek injunctive relief and attorneys’ fees, but are more often viewed as a tool to extract quick settlement payments from businesses that choose not to litigate or do not have the resources to litigate.
Since 2013, litigation under Title III of the ADA has more than tripled with approximately 10,000 cases filed annually. California, New York and Florida account for more than half of the filings.
The Supreme Court’s decision in Acheson Hotels will no doubt have a decisive effect on future ADA lawsuits, and could bring much needed relief to small businesses, who are routinely the targets of these lawsuits.
The Court is expected to hear oral argument in the fall, with a decision likely to follow in 2024.
Click here for: Petition for Writ of Certiorari
Click here for: Amici Curiae Brief
[1] Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022), cert. granted, No. 22-429, 2023 WL 2634524 (U.S. Mar. 27, 2023).
[2] Laufer, 50 F. 4th at 274-75.
[3] Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
[4] Laufer, 50 F. 4th at 271.
