U.S. Supreme Court punts on ADA tester lawsuit, but emphasizes issue is “very much alive”

Americans with Disabilities Act
Acheson Hotels v. Laufer
Date: Dec. 5, 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 U.S. Supreme Court dismissed an ADA tester as moot, but emphasized the circuit split over whether “testers” have standing “is very much alive.”

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 noncompliant 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, ruling 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. ABA and a group of trades (Amici) filed an amicus brief urging the Supreme Court to rule ADA testers do not have Article III standing to sue. Amici argued serial tester plaintiffs have generated a surge in ADA litigation, attorney-driven tester cases harm small businesses, and many tester cases clash with Article III’s personal-injury requirement.

After the Supreme Court granted review, a Maryland federal court suspended Laufer’s lawyer, Tristan Gillespie, from practicing law. Gillespie allegedly defrauded hotels by submitting inaccurate requests for attorneys’ fees. Following the suspension, Laufer voluntarily dismissed her pending suits with prejudice, and filed a suggestion of mootness before the Supreme Court. In response, Acheson Hotels urged the Court to resolve the circuit split. It explained the “standing issue might not come back anytime soon” because hotels would be reluctant to request Supreme Court review if a plaintiff can evade review by abandoning a claim.

In a unanimous decision written by Justice Amy Coney Barrett, the U.S. Supreme Court ruled the case was moot after Laufer voluntarily dismissed her pending suits. At the same time, the Court emphasized the circuit split created by Laufer was “very much alive.” In previous cases, the Second, Fifth, and Tenth Circuits held that she lacked standing to sue, while the First, Fourth and Eleventh Circuits held that pled standing. While the Court was sensitive to Acheson’s concern about litigants manipulating the jurisdiction of the Supreme Court, the Court explained it was “not convinced Laufer abandoned her case in an effort to evade” the Court’s review. Still, the Court noted it may “exercise its discretion differently in a future case.”

In concurrence, Justice Clarence Thomas explained he would have addressed the question of whether plaintiffs such as Laufer have standing to sue. Justice Thomas also theorized that the circumstances of Laufer’s withdrawal “strongly suggest strategic behavior on Laufer’s part” because Gillespie did not represent Laufer in her lawsuit against Acheson. In a second concurring opinion, Justice Ketanji Brown Jackson questioned the Court’s decision to vacate the First Circuit’s decision. According to Justice Jackson, “mootness and vacatur are distinct concepts.” Justice Jackson emphasized the parties did not provide any equitable basis for vacatur of the First Circuit’s decision. Justice Jackson therefore did not agree with imposing a vacatur remedy.

Bottom Line: With the Supreme Court declining to address tester standing, the issue and broad circuit split remains open.

Documents: Opinion