ABA, trade groups file amicus brief urging Supreme Court to reverse ADA testers ruling

Americans With Disabilities Act
Acheson Hotels LLC v. Laufer
Date: June 12, 2023

Issue: Whether an Americans with Disabilities Act (ADA) plaintiff has standing to sue a company without having any intention of patronizing the business.

Case Summary: The American Bankers Association and a group of trade associations filed an amicus brief urging the U.S. Supreme Court to rule ADA testers do not have Article III standing to sue.

Deborah Laufer sued Acheson Hotels under the ADA, which requires hotel owners and operations to identify and describe accessible features of a hotel and guest rooms offered through its reservation services. Laufer is a self-proclaimed ADA “tester” who filed more than 600 ADA-related lawsuits in federal courts throughout the country since 2018. Testers often search for non-compliant websites and eventually file lawsuits in “plaintiff-friendly” jurisdictions. Under the Reservations Rule of the ADA regulations (28 C.F.R. § 36.302(e)(1)(ii)), hotels must provide information “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.” Laufer never intended to visit the hotel.

A Maine federal court dismissed the lawsuit against Acheson Hotels, concluding Laufer could not be injured by the lack of information on a website for a hotel she never planned to visit. On appeal, the First Circuit reversed. The First Circuit determined Laufer suffered a concrete injury in the form of alleged frustration and humiliation by not obtaining adequate information about whether the hotel could accommodate her. The U.S. Supreme Court agreed to review whether an ADA tester has Article III standing to sue a company for violating the ADA if the tester has no intention of patronizing the company.

Amici filed its amicus brief supporting Acheson Hotels. The brief highlighted serial tester plaintiffs have generated a surge in ADA litigation. Title III of the ADA asserts “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place or public accommodation.” The brief emphasized since 2013, there has been a 349% increase in ADA litigation. Amici also emphasized serial tester plaintiffs are even more prevalent in cases alleging violations of the Reservation Rule.

Additionally, Amici argued attorney-driven tester cases harm small businesses. According to Amici, several businesses have been required to fight through summary judgment and even a trial before obtaining a dismissal based on lack of standing. The brief highlighted that litigation costs businesses tens of thousands of dollars or more in legal fees responding to lawsuits in which no plaintiff was personally injured. Amici also contended abusive ADA litigations disproportionately impact small businesses. The brief explained many small business owners lack the time and resources necessary to defend a fact-intensive litigation and thus quickly pay to settle these cases, even when a plaintiff’s allegations of standing are suspect.

Amici also argued many tester cases clash with Article III’s personal-injury requirement. Article III requires an injury to “affect the plaintiff in a personal and individual way.” Amici emphasized Laufer had no intention to ever visit Acheson Hotels’ property, never received false information, and never suffered discriminatory treatment based on her disability. For these reasons, Amici contended Laufer never suffered a particularized injury.

Bottom Line: Laufer’s response brief is due Aug. 2, 2023.

Documents: Opinion