Supreme Court Dismisses Disability ‘Tester’ Lawsuit

A civil rights ’tester' had sued a hotel claiming it failed to post accessibility information online but never planned to visit the hotel.
Supreme Court Dismisses Disability ‘Tester’ Lawsuit
Associate Justice Amy Coney Barrett stands during a group photo of the Justices at the Supreme Court in Washington on April 23, 2021. (Erin Schaff/AFP via Getty Images)
Matthew Vadum

The Supreme Court dismissed on Dec. 5 the case of a serial lawsuit filer who sued more than 600 hotels over their alleged failure to post disability accessibility information on their websites.

Activists say such “testers” are only helping to enforce the provisions of the Americans with Disabilities Act (ADA), which they say hotels do not observe unless they are pressured to do so. The ADA is a 1990 federal civil rights law that prohibits discrimination based on disability.

The hotel industry counters that some activists abuse the ADA and burden small businesses by initiating dubious lawsuits demanding disability accessibility information.

The case, Acheson Hotels LLC v. Laufer (court file 22-429), was heard by the court on Oct. 4. In a unanimous decision on Dec. 5, the court threw out the case, ruling it was moot.

The respondent, Deborah Laufer, is a self-identified civil rights tester who challenged hotels’ failure to make information about accessibility to disabled people publicly available, even though she had no intention of visiting the hotels she targeted.

Ms. Laufer, who has vision problems and physical disabilities, has brought hundreds of lawsuits against hotels across the country under the ADA, which requires hotels to post information online about their accessibility to people with disabilities.

Ms. Laufer brought suit in federal district court in Maine, claiming that the website for an inn that the petitioner, Acheson Hotels, operated there contained insufficient information about what accommodations the establishment provided for disabled people.

The district court sided with Acheson Hotels, holding that Ms. Laufer lacked legal standing to proceed because she did not actually intend to visit the hotel and therefore could not suffer harm because of the dearth of website information.

However, the U.S. Court of Appeals for the 1st Circuit disagreed and reinstated her lawsuit, concluding that the denial of accessibility information was adequate grounds for legal action.

The fact that “Laufer had no intent to use the information for anything but a lawsuit doesn’t change things,” the court stated.

There is a split among federal courts of appeal on the issue of tester standing. Three have rejected tester standing on identical facts, while one held that Ms. Laufer’s allegations, if true, would establish standing.

Complicating matters, after Ms. Laufer filed suit, Acheson Hotels updated the accessibility information, a move the Biden administration argued in a June 12 brief may have mooted the case that was pending before the Supreme Court.

Ms. Laufer’s attorney, Kelsi Brown Corkran of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center in Washington, asked the court to declare the case moot.

The Supreme Court denied the request to dismiss the case as moot on Aug. 10 but provided that: “The question of mootness will be subject to further consideration at oral argument in addition to the question” of her standing to bring the lawsuit.

During oral arguments on Oct. 4, the attorney for Acheson Hotels, Adam Unikowsky of Jenner and Block in Washington, urged the Supreme Court to press on with the appeal.

“The court should not bless a legal strategy of filing large numbers of lawsuits, settling almost all of them, and abandoning the rare case that threatens to create adverse precedent so as to facilitate the filing of another round of lawsuits,” he said.

Justice Clarence Thomas said that because Ms. Laufer had withdrawn her suit: “Why should we decide this? It seems as though … it’s finished.”

Mr. Unikowsky replied that Ms. Laufer “hasn’t promised not to bring new suits in the future. And if she doesn’t, another plaintiff presumably will.”

Justice Amy Coney Barrett wrote the court’s opinion (pdf) in the case.

“Deborah Laufer has sued hundreds of hotels whose websites failed to state whether they have rooms accessible to the disabled. As the sheer number of lawsuits suggests, she does not focus her efforts on hotels where she has any thought of staying, much less booking a room.

“Instead Laufer systematically searches the web to find hotels that fail to provide accessibility information and sues to force compliance with the Americans with Disabilities Act[.]

“Ordinarily, the hotels settle her claims and pay her attorney’s fees. But some have resisted, arguing that Laufer is not injured by the absence of information about rooms she has no plans to reserve. Only plaintiffs who allege a concrete injury have standing to sue in federal court. Laufer, these hotels have argued, is suing to enforce the law rather than to remedy her own harms,” Justice Barrett wrote.

After one of Ms. Laufer’s attorneys was disciplined for misconduct regarding her lawsuits, she voluntarily withdrew her lawsuit against Acheson Hotels.

Acheson Hotels argued the Supreme Court should deal with the case because the issues involved were important and needed to be resolved.

Although the Supreme Court is “sensitive to Acheson’s concern about litigants manipulating the jurisdiction of this Court,” the court is “not convinced, however, that Laufer abandoned her case in an effort to evade our review,” the justice wrote.

“She voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer. She represented to this Court that she will not file any others. Laufer’s case against Acheson is moot, and we dismiss it on that ground. We emphasize, however, that we might exercise our discretion differently in a future case.”

The ruling by the U.S. Court of Appeals for the 1st Circuit was vacated and the case was remanded to that court “with instructions to dismiss the case as moot.”

The Epoch Times has reached out for comment to attorneys representing Ms. Laufer, Acheson Hotels, and the U.S. Department of Justice.