SCOTUS keeps issue of “tester” standing alive, dismissing ADA website appeal as moot | Ballard Spahr LLP

On December 5, 2023, the Supreme Court of the United States in Acheson Hotels, LLC v. Lauferdeclined to substantively address a question businesses across the country have been eager to resolve: That is, whether a “tester” plaintiff has standing to sue a public accommodation under the Americans with Disabilities Act (“ADA”), despite having no intention of ever visiting the business.  Instead, the Supreme Court, in a 9-0 decision, dismissed the case as moot after plaintiff Deborah Laufer dropped the lawsuit following her attorney’s suspension from practicing law.

Laufer, a self-proclaimed “tester,” has sued hundreds of hotels across the country whose websites, she alleges, have failed to state whether they have rooms accessible to individuals with disabilities.  The Supreme Court confirmed Laufer’s tester status explaining that, “as the sheer number of lawsuits suggests, she does not focus her efforts on hotels where she has any thought of staying;” rather, she “systematically searches the web to find hotels that fail to provide accessibility information and sues to force compliance with the [ADA].”

Justice Amy Coney Barrett, writing the majority opinion, highlighted that Laufer has “singlehandedly generated a circuit split.”  As we reported earlier this year, the United States Court of Appeals for the Fourth Circuit found Laufer did have standing, joined by the First and Eleventh Circuits.  Meanwhile, the Second, Fifth, and Tenth Circuits have held that she lacks standing because she cannot allege a concrete injury.  The Supreme Court took the case from the First Circuit in order to resolve the clear split.

After the Supreme Court granted review, however, the U.S. District Court for the District of Maryland suspended Laufer’s lawyer for submitting inaccurate requests for attorneys’ fees.  Laufer subsequently voluntarily dismissed her lawsuits with prejudice, and filed a suggestion of mootness before the Supreme Court.  In response, Acheson Hotels, LLC urged the Court to resolve the circuit split now cautioning that the “standing issue might not come back anytime soon,” as hotels would be reluctant to take a case to the Supreme Court if a plaintiff can evade review by simply “abandoning a claim rather than risk a loss.”

The Supreme Court disagreed, explaining they were not convinced Laufer “abandoned her case in an effort to evade [its] review.”  While indicating that it may exercise discretion differently in a future case, the Supreme Court dismissed the case as moot and vacated the judgment of the First Circuit, with instructions to dismiss the case as moot.

In a concurring opinion, Justice Clarence Thomas agreed with Acheson Hotels, LLC, whom he acknowledged had “spent significant time and resources briefing a question that will now go unanswered.”  He was disinclined to “reward Laufer’s transparent tactic” for evading review and, instead, believed the Supreme Court can—and should—have addressed the question for which it granted certiorari, as there is no mandatory “sequencing of jurisdictional issues.”  He expressed the opinion that Laufer had failed to assert a violation of a right owed to her, did not have standing, but concurred because he would “vacate and remand, with instructions to dismiss for lack of standing.”  In a second concurring opinion, Justice Jackson agreed the case was moot, but disagreed with the Supreme Court’s decision to automatically vacate the First Circuit’s ruling because “[m]ootness and vacatur are distinct concepts.”

While Laufer has “disavowed the intention to file any more ADA tester suits,” the Supreme Court’s decision acknowledged that the issue of tester standing is still “very much alive.”  Federal district courts around the country remain bound by their respective Circuit Court’s precedent, and businesses across the country lack unified guidance as to whether they remain targets for serial-litigants.  As such, this decision will likely not deter forum-shopping by future tester plaintiffs, who increasingly file lawsuits against industry entities who maintain an online presence, and who will continue to avoid unfavorable courts.

The legal landscape involving website accessibility continues to evolve rapidly.  Attorneys in Ballard Spahr’s Accessibility Group regularly advise clients on digital accessibility matters in the quickly changing legal environment.  Not only do we represent clients in connection with litigation relating to digital accessibility, we also draft and review digital accessibility policies and procedures, providing clients with advice to avoid litigation.

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