Supreme Court Says Case Over ADA ‘Tester’ Standing Is Moot, But Issue is Still Alive
Wednesday, December 6, 2023

On December 5, 2023, the Supreme Court of the United States vacated a case over whether a self-proclaimed “tester” had standing to bring Americans with Disabilities Act (ADA) claims against a hotel that she did not plan to visit, finding the case was moot without addressing the highly-anticipated standing issue.

Quick Hits

The Supreme Court vacated an ADA case against a hotel by a plaintiff who did not intend to stay at the hotel as moot despite the hopes of the business community that it would reduce the overwhelming number of ADA lawsuits.
The decision did not address whether such a ‘tester’ plaintiff has standing under the ADA except to say the issue is still alive and without providing any indication for how the Supreme Court or any other court will resolve the tester standing issue going forward.
A concurring opinion by Justice Thomas suggested that the plaintiff lacked standing because the only injury she suffered was so-called “informational injury” that is not protected by the ADA.
The Supreme Court vacated Acheson Hotels v. Laufer as moot but said the circuit split over whether “testers” have standing “is very much alive.” The high court further vacated the First Circuit Court of Appeals ruling that the plaintiff, Deborah Laufer, who uses a wheelchair, did have standing to bring ADA claims.

Still, the ruling failed to answer key questions about whether testers, individuals who seek out potential claims for discrimination violations against businesses, have standing to bring such claims amid a legal strategy to barrage businesses with tester lawsuits that often allege mere technical rights violations with a goal of extracting settlement payouts.  

Despite once providing hope that the Supreme Court saw the Laufer case as a vehicle for reducing the overwhelming number of ADA lawsuits, including website accessibility lawsuits, when it accepted the case in March 2023, the dismissal of the case as moot does not offer relief for the business community and provides virtually no indication for how this Court (or any other court) will resolve the tester standing issue going forward.

Laufer, a self-proclaimed tester plaintiff who combed through various hotel websites searching for potential ADA violations, alleged that the website for The Coast Village Inn and Cottages in Maine, which was formerly owned by Acheson Hotels, LLC, did not provide sufficient information about its accessible accommodations in violation of Title III of the ADA and relevant U.S. Department of Justice regulations.

After the case was accepted by the Supreme Court, Laufer voluntarily dismissed her suit and asked the court to dismiss the case as moot. During oral arguments in October 2023, the justices questioned whether Laufer dropping her suit in addition to the facts that Acheson Hotels had already sold the hotel in question and the hotel’s current website is currently compliant with Title III, did not render the case moot.

But Acheson Hotels argued that the high court should decide the important standing questions while the issue was briefed and before the court as another appropriate case might not reach the high court anytime soon.

In the high court’s decision, Justice Amy Coney Barrett, stated that while the Court was “sensitive to Acheson’s concern about litigants manipulating the jurisdiction of” the Supreme Court, they were “not convinced … that Laufer abandoned her case in an effort to evade” the Court’s review. Still, Justice Barrett noted that the Court “may exercise [its] discretion differently in a future case.”

Justice Clarence Thomas stated in a separate concurring opinion that he would not dismiss the case as moot and would find that Laufer lacks standing to bring ADA claims. Justice Thomas argued that Laufer did not allege a violation of her rights under the ADA because “the ADA prohibits only discrimination based on disability—it does not create a right to information.

Justice Thomas distinguished Laufer’s claim from that in the 1968 Supreme Court case in Havens Realty Corp. v. Coleman, in which the high court held, in addressing the Fair Housing Act, that a “dignitary harm” a tester may experience from witnessing discrimination is an adequate harm to establish standing.

Justice Thomas argued that in Havens Realty, “a black tester” who was told there were no apartments available when a “white tester” was told there were “vacancies,” had standing because he had been “personally denied that truthful information.” The situation in that case “thus has no bearing on Laufer’s standing as a tester of compliance with the ADA, which provides no such statutory right to information,” Justice Thomas stated.

Next Steps

With the Supreme Court declining to address tester standing, the issue and broad circuit split remains open. At this time, it is unclear when the high court will have another opportunity to address it, and, if it does, if the plaintiff will effectively moot the case again by abandoning the claim that made its way to the Court. Additionally, while Justice Thomas’s concurrence suggested that Laufer did not have standing based on the facts of her case, the opinion did not reject “dignitary harm” as a basis for standing under Havens Realty.

 

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