Supreme Court punts question on ‘tester’ standing for ADA Title III violations | McAfee & Taft

After the U.S. Supreme Court agreed to hear a case on the propriety of “tester” standing (Acheson Hotels, LLC v. Laufer), interested parties have anxiously awaited the Supreme Court’s much-needed guidance on who may sue for alleged violations of Title III of the Americans with Disabilities Act.  However, when oral arguments occurred on October 4, 2023, questions set forth by the justices signaled that we may have to wait longer for this guidance. In its decision published on December 5, 2023, the nation’s highest court chose to decide this case on other procedural grounds, leaving the question regarding standing to be decided another day.

Factual background of Acheson Hotels, LLC v. Laufer

Deborah Laufer, the disabled plaintiff bringing the lawsuit that reached the Supreme Court, is a self-proclaimed “tester” of violations of Title III of the ADA. Laufer systematically searched the internet to find hotels that failed to provide adequate information about the hotel’s accessibility for disabled individuals on their websites in compliance with the Department of Justice’s Reservation Rule.  Where Laufer found alleged violations, she (through her counsel) would sue the hotels, offering to settle her claims for thousands of dollars in attorneys’ fees and remediation of the alleged violations. In the past five years, Laufer filed more than 600 of these lawsuits against hotels, with the hotels often settling the cases early in the litigation. Acheson Hotels was an exception to that rule, choosing instead to litigate whether Laufer could sue for the alleged Title III violations where she did not intend to visit the hotel.

The trial court dismissed Laufer’s lawsuit, finding that she did not have standing to sue Acheson Hotels because she had no plans to visit the hotel and therefore suffered no injury as a result of their website lacking satisfactory accessibility information. The federal appeals court reversed, finding that Laufer’s lack of intent to visit the hotel did not prevent her from suing the hotel for the alleged violations.

After the Supreme Court opted to hear the case to determine the issue of whether an ADA “tester” has standing to challenge a hotel’s alleged Title III violations, Laufer dismissed her case with prejudice due to the suspension of one of her attorneys for violating his ethical obligations. Laufer also filed a suggestion of mootness with the Supreme Court, which the Supreme Court deferred until oral arguments occurred. The mootness question became a central focus of the oral arguments held on October 4, 2023.

Supreme Court’s decision

In its decision published on December 5, 2023, the majority of the court (comprised of Justices Barrett, Roberts, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh) chose not to address the main issue in the case (i.e., whether Laufer had standing to sue for the alleged Title III violations), and instead remanded the decision to the federal appeals court, directing that the case be dismissed as moot.

Justice Thomas, on the other hand, drafted a concurrence that addressed the standing question, and ultimately held that Laufer did not have standing to sue for the alleged violations because “her claim d[id] not assert a violation of a right under the ADA, much less a violation of her rights.”

Justice Jackson wrote a separate concurring opinion addressing the Supreme Court’s use of a certain procedural mechanism to vacate the First Circuit’s decision.

Takeaways

Although the Supreme Court did not provide a majority opinion deciding the specific issue of whether a self-proclaimed “tester” has standing to assert alleged violations of Title III of the ADA, Justice Thomas (through his concurring opinion) determined that Laufer did not have the required standing where, among other things, she sought to vindicate the rights of others and not her own. Although not binding, Justice Thomas’s opinion may influence lower appellate and district courts to narrow the scope of who may bring lawsuits for alleged violations of Title III of the ADA.

While we wait for the court to hear another case addressing the standing question, entities qualifying as places of public accommodation under Title III of the ADA should ensure that they are complying with Title III’s requirements. This includes ensuring the accessibility of their websites and other digital properties, as lawsuits alleging these violations continue to rise and have been brought by “testers” similar to Laufer in the Acheson Hotels, LLC lawsuit.

  • Acheson Hotels, LLC v. Laufer, 601 U.S. —, — S.Ct. — (2023)

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