The Supreme Court considered on Oct. 4 the case of a serial lawsuit filer who has sued more than 600 hotels over their alleged failure to post disability accessibility information on their websites without intending to actually patronize the hotels.
This complex appeal, which is rife with twists and turns, is known as Acheson Hotels LLC v. Laufer (court file 22-429).
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 hotel industry counters that some activists abuse the Act and burden small businesses by lodging dubious lawsuits demanding disability accessibility information.
“A cottage industry has arisen in which uninjured plaintiffs lob ADA lawsuits of questionable merit while using the threat of attorney’s fees to extract settlement payments,” petitioner Acheson Hotels stated in court documents.
“These lawsuits have burdened small businesses, clogged the judicial system, and undermined the Executive Branch’s exclusive authority to enforce federal law.”
The respondent, Deborah Laufer, is a self-identified civil rights tester who challenges hotels’ failure to make information about accessibility to disabled people publicly available, even though she has no intention of visiting the hotels she targets.
Ms. Laufer, who has vision problems and physical disabilities, has brought hundreds of lawsuits against hotels across the country under the ADA, a 1990 federal civil rights law that prohibits discrimination based on disability.
The law 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 Acheson Hotels operated there contained insufficient information about what accommodations the establishment provided for disabled people.
The inn’s website states: “Please Note: Unfortunately, we do not have the capabilities to provide pet-friendly or ADA-compliant lodging. We apologize for the inconvenience!”
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.
Whatever “feelings of frustration, humiliation, and second-class citizenry” Ms. Laufer may have had are “downstream consequences” and “adverse effects” of the “informational injury she experienced,” according to the court.
There is a split among federal courts of appeal on the issue of tester standing. Three have rejected tester’s 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 pending before the Supreme Court.
And complicating matters even further, one of Ms. Laufer’s attorneys was disciplined by a lower court for professional misconduct in connection with the bulk filing of ADA lawsuits, which opposing counsel dubbed “an unethical extortionate scheme.”
On July 5, attorney Tristan Gillespie, local counsel in Maryland—working for Ms. Laufer’s then-attorney Thomas Bacon of Orlando, Florida, on her various ADA lawsuits—was suspended from practicing law for six months by the U.S. District Court for the District of Maryland for professional misconduct related to those lawsuits.
A three-judge panel issued a report days before on Mr. Gillespie’s conduct in filing more than 600 ADA lawsuits on behalf of Ms. Laufer and another individual.
“The report stated that Gillespie filed boilerplate ADA lawsuits against hotels for failing to provide sufficient accommodation information online. He immediately pushed for settlements that would award him high attorney fees.
“Gillespie routinely exaggerated time spent drafting near-identical complaints, billing over two hours for work that took minutes,” ALAB News, a publication that covers attorney misconduct, reported on Aug. 1.
Ms. Laufer’s new attorney, Kelsi Brown Corkran of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center in Washington, filed a brief with the Supreme Court acknowledging that the former attorney violated ethics and other rules, but that Ms. Laufer had not “engaged in any improper conduct and continues to believe that her claims against Acheson and other hotels are meritorious.
“But despite that, Ms. Laufer decided to dismiss all of her pending cases with prejudice,” the brief stated.
When a court agrees to dismiss a lawsuit “with prejudice,” the lawsuit is deemed to have been adjudicated on the merits and the plaintiff is not allowed to refile the same claim again in that court.
Ms. Corkran urged the Supreme Court to dismiss the case because there is no longer a live controversy for the justices to decide.
The attorney for Acheson Hotels, Adam Unikowsky of Jenner and Block in Washington, accused Ms. Laufer of participating in a bait-and-switch.
In a reply brief following the revelations about her previous counsel, he wrote that Ms. Laufer “has hatched an audacious plan. Laufer has decided to abandon her case against Acheson in an effort to persuade this Court not to decide the question on which it granted [review]: whether Laufer had standing to bring her suit.”
“Laufer is abandoning her case to pave the way for Laufer and similar plaintiffs to resume their campaign of extortionate ADA suits against unwitting small businesses without the hindrance of an adverse ruling from this Court.
“The Court should not reward Laufer’s effort to insulate lower-court rulings upholding ‘tester’ standing from Supreme Court review,” the attorney wrote.
“If the Court dismisses the case, Acheson faces the risk of being sued again. The Court should not pull the rug out from under Acheson when it is on the cusp of its day in this Court.”
On Aug. 10, the Supreme Court denied Ms. Laufer’s request to dismiss the case as moot 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, Mr. Unikowsky 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 has 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.”
Ms. Laufer’s position is that “any person with a disability with accessibility needs in America who visits a website can bring a lawsuit, so, presumably, another plaintiff will come forward … and start bringing the same claims.”
Justice Sonia Sotomayor said she didn’t understand the argument for moving forward.
She said that Mr. Unikowsky has admitted Ms. Laufer is not entitled to monetary relief and that the hotel in question is now owned by a different entity.
“So tell me why it’s not moot and tell me why we wouldn’t be just giving an advisory opinion,” she said.
Mr. Unikowsky acknowledged the controversy is “definitely moot at this point,” but instead of dismissing the case as moot, which would not set a precedent, the court should set a precedent by “simply saying … there was never a live controversy in the first place.”
Chief Justice John Roberts joined the conversation.
Justice Ketanji Brown Jackson asked: “Shouldn’t your answer be [to] moot the case and vacate the lower court ruling to the extent there is one against us?”
Mr. Unikowsky said that wouldn’t be “good enough … because first of all, the 1st Circuit’s case is still going to be persuasive authority to all district courts in the 1st Circuit who are going to know that if the case goes back up.”
Ms. Laufer also won a case in the U.S. Court of Appeals for the 4th Circuit that “remains binding precedent in that court,” he said.
“This case is different because it’s part of a broader litigation program of bringing hundreds and hundreds of lawsuits. That’s what, I think, makes this case unique.”
The respondent’s attorney, Ms. Corkran, told the justices that no one disputes that when the original lawsuit was filed the hotel didn’t provide accessibility information on its website “thereby excluding disabled people from using its online reservation services and engaging in unlawful discrimination under the ADA.”
Congress has recognized that “when places of public accommodation fail to take reasonable steps to make their services available to people with disabilities, they signal that disabled people are unwelcome participants in the marketplace and contribute to their day-to-day experience of being isolated, invisible, and ignored.”
If the Court reaches the standing question, it should reject the hotel company’s “argument that a disabled person does not experience that dignitary harm when she encounters the accessibility barrier on Acheson’s website, unless she also has travel plans that are thwarted by the discriminatory treatment.”
The lawyer said that in the years since the Supreme Court ruled in Havens Realty v. Coleman (1982), it has been recognized that discrimination inflicts a legally actionable injury “regardless of whether the plaintiff experiences any harm beyond the unequal treatment.”
“What it means to personally experience discrimination on the internet is a novel question, but … Havens requires a test that focuses on what the plaintiff experiences on the website, not her underlying motive in that experience or whether any downstream injuries result.”
Justice Brett Kavanaugh told Ms. Corkran: “I agree with you that discriminatory treatment is itself an injury under our precedents.”
But the other side argues that “there was no discrimination in the information provided because everyone was provided the same information,” he said.
Ms. Corkran said she disagreed because “the service itself has to be provided in a way that allows people with disabilities to use it in the same way as non-disabled people.”
The Supreme Court is expected to rule on the case by June 2024.
