U.S. Supreme Court to Resolve Circuit Split Over Whether ‘Testers’ Have Standing to Pursue ADA Suits

The Supreme Court of the United States agreed to hear a case concerning a self-appointed “tester’s” standing to bring claims alleging a hotel violated the Americans with Disabilities Act (ADA) by failing to provide information on its website for guests with disabilities, even when the “tester” had no intention to stay at the hotel. Such claims brought by “testers” who comb websites and businesses’ bricks and mortar facilities for alleged ADA violations that they can turn into lawsuits have increased in recent years, causing challenges for businesses.

On March 27, 2023, the high court agreed to hear Acheson Hotels v. Laufer to decide the standing issue. Deborah Laufer, who is both visually and mobility impaired, and uses a wheelchair, cane, or other support for mobility, alleged that Acheson Hotels, LLC, which operates The Coast Village Inn and Cottages in Maine, did not provide sufficient information on accessible accommodations on its website in compliance with Title III of the ADA. Laufer is an advocate for individuals with disabilities and a self-proclaimed “tester” who combs websites looking for potential ADA violations. She has filed more than 600 federal lawsuits against businesses, alleging ADA violations.

In the Acheson Hotels case, Laufer alleged that when she visited the website for The Coast Village Inn and Cottages she found none of the required information on the hotel’s accessible rooms and there was also no option to book an accessible room. U.S. Department of Justice regulations provide that “places of lodging” must “[i]dentify and describe accessible features in the hotels and guest rooms” on reservation portals “in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.”

Standing generally refers to the ability of a litigant to seek relief in court. Article III of the U.S. Constitution requires federal litigants to have “standing” to bring their claims and to seek injunctive relief so that the busy federal courts are asked to resolve actual “Cases” and “Controversies” rather than hypothetical disputes about what a law may require. The Supreme Court has held that to establish Article III standing, plaintiffs must show: (1) that they have suffered an injury in fact, (2) that the injury is fairly traceable to the the defendant’s conduct being challenged, and (3) that the injury can be redressed by a court.

A district court tossed Laufer’s lawsuit for lack of standing, finding that she did not suffer any injury because she never intended to stay at the Coast Village hotel and the website was updated to state that it does not have any ADA-compliant lodging.

However, the First Circuit Court of Appeals reversed that decision on appeal, joining with the Eleventh Circuit Court of Appeals in a case involving the same plaintiff, holding that she did have standing. The First Circuit explained that the alleged failure to provide information required by the ADA caused a sufficient injury and that the plaintiff suffered that injury despite the fact that she never intended to actually stay at the hotel.

Acheson Hotels sought review by the Supreme Court, arguing that the case is of “immense practical importance” as testers have “collectively brought thousands of lawsuits under the ADA” in what has become a “cottage industry” with “uninjured plaintiffs” bringing suits of “questionable merit.” In addition to those bringing lawsuits as admitted “testers,” ADA litigation is rife with plaintiffs who claim technical violations of architectural standards or website accessibility standards that do not actually prevent the plaintiffs from fully enjoying the businesses’ offerings. Businesses often claim that these plaintiffs lack standing as well because the plaintiffs have not experienced “injur[ies] in fact.”

According to the petition for certiorari, there is a circuit split on the issue. Three circuit courts of appeals—the Second, Fifth, and Tenth—have rejected standing in “tester” cases, while the First and the Eleventh have held that allegations such as those in Acheson Hotels do establish standing.

Key Takeaways

The Supreme Court could provide much-needed clarity on the standing of “tester” cases in which the plaintiffs have no intention to take advantage of the services provided by a company alleged to have violated the ADA, and thus arguably have suffered no real injury. The business community will be interested to see if the Supreme Court also addresses general ADA standing issues that will help in those cases where ADA plaintiffs rest their case on technical violations of the law. The high court will likely hear arguments in the case in its 2023-2024 term with a decision likely by the close of the term in early summer 2024.

Ogletree Deakins’ Disability Access Practice Group will continue to monitor developments with the case and will provide updates on the Disability Access blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.