ADA accessibility lawsuit reaches the Supreme Court

Listen to this article

The Supreme Court of the United States recently heard oral argument in a case that could significantly impact the proliferation of website accessibility lawsuits under the Americans with Disabilities Act (“ADA”). The Court in Acheson Hotels, LLC. v. Laufer is being asked to resolve the question of whether Deborah Laufer, a self-proclaimed “tester” plaintiff who admittedly had no intention to book a hotel room at the property, has suffered an injury sufficient to maintain a viable disability discrimination lawsuit against Acheson Hotels, which concedes that its online reservation system did not provide adequate information concerning the accessible features of the property.

The ADA

Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”[1] It generally requires places of public accommodation to be readily accessible to and usable by individuals with disabilities.[2]

In recent years, a highly debated and litigated topic has been the accessibility of websites and mobile applications in the context of e-commerce and places of lodging. As a result, in 2022, the US Department of Justice (“DOJ”) issued guidance on website accessibility, explaining how businesses open to the public can ensure their websites are accessible to people with disabilities, in accordance with the ADA.[3]

The DOJ is charged with enforcement of the ADA, but private litigants are often the main enforcers.[4] The ADA allows any person subject to discrimination on the basis of a disability to institute a civil action for injunctive relief and to recover attorneys fees’ as the prevailing party, the latter of which appears to be driving the thousands of lawsuits filed by serial tester plaintiffs against small businesses in recent years.[5]

According to legal counsel for Acheson Hotels, “for these small businesses, the cost of litigating an ADA case — plus a potential fee award — could push them into bankruptcy,” which frequently and unfortunately results in situations in which most small business owners are compelled to settle even meritless lawsuits due to the expense and burden associated with litigation.

The Case

Laufer is a serial litigator who has filed more than 600 lawsuits in 22 different states against hotels, motels, bed-and-breakfasts, and other places of lodging, claiming the businesses’ websites or online reservation systems lack adequate information regarding the accessibility features. Laufer, who allegedly suffers from multiple disabilities, alleged in her complaint that Acheson Hotel’s failure to provide sufficient information on its website concerning the accessible features of the property, particularly with respect to wheelchair access, denied her equal access to and enjoyment of the property in violation of the ADA. Consequently, on September 24, 2020, she filed ADA lawsuits against seven hotels in Maine, including the Coast Village Inn and Cottages, which is owned by Acheson Hotels.

A federal district court dismissed Laufer’s complaint against Acheson Hotels on the basis that Laufer did not suffer an injury (because she is a serial tester plaintiff who had no intention to book a stay) and, therefore, Laufer lacked standing to pursue her claims. Thereafter, on appeal, the US Court of Appeals for the First Circuit reversed the district court’s decision, finding that Laufer, despite having no intention to book a stay at Acheson Hotel, nevertheless had suffered an information injury sufficient to satisfy the standing requirement.

Federal appellate courts across the country have been split on the issue. The First and Eleventh Circuits have maintained that tester plaintiffs have standing to file ADA Title III lawsuits, even if they do not intend to book a room at the hotel. In contrast, the Second, Fifth, and Tenth Circuits have rejected ADA tester standing on the same facts. On cases containing similar facts, the Fourth, Sixth, and Seventh Circuits have ruled that ADA tester plaintiffs must demonstrate an interest and intent to book a room at the hotel to have standing.

In November 2022, Acheson Hotels petitioned the Supreme Court to hear the case, not only to overturn the First Circuit’s decision against Acheson Hotels, but also to resolve the conflicting decisions by federal appellate courts. Laufer subsequently sought to voluntarily dismiss her case after her lawyer was suspended from the practice of law due to repeated ethics violations, and she argued in this regard that her decision to voluntarily dismiss the case rendered the issue moot, such that there was no longer a case or controversy for the Court to decide. The Court denied Laufer’s request and agreed to hear the case.

During oral argument, several of the Justices, both liberal and conservative, expressed skepticism that Laufer was subject to discrimination merely by visiting websites for hotels, motels, and other places of lodging. Justice Gorsuch opined that to establish discrimination, a plaintiff may need to “have some further engagement rather than just spending the afternoon clicking through these things.”

It remains uncertain if the issue of whether Laufer has standing or otherwise suffered discrimination will be addressed, especially given hints from several Justices that the case might be considered moot. In this regard, during oral argument, Justice Thomas asked legal counsel for Acheson Hotels why the Court should decide the case, stating that “it seems as though it’s finished.” Justice Alito also weighed in, stating that the case “is dead as a doornail” because Laufer dismissed her lower court case and because Acheson Hotels no longer owns the Coast Village Inn, which has since revised its website to acknowledge a lack of ADA compliance. And Justice Kagan suggested the case was “dead dead dead in all the ways that something can be dead.”

Acheson Hotels urged the Court to rule on the standing issue regardless of whether the parties agree that the case is moot in hopes of curtailing future lawsuits, which, again, are costly and burdensome to defend, often involve meritless claims, and drain judicial resources. If the Court rules that the case is moot or that Laufer had standing to sue Acheson Hotels, other serial plaintiffs and their law firms operating in this space will likely continue the onslaught of ADA lawsuits against small businesses. If the Court decides the issue of standing in favor of Acheson Hotels, it will be a significant victory for hotels, motels, and other places of lodging, which have been a primary target in these lawsuits, specifically during the COVID pandemic, when these businesses were already struggling to keep the doors open.

Regardless of how the Court rules, its decision in Acheson Hotels v. Laufer is expected to have broad implications on the future of ADA website accessibility litigation.

Rob Thorpe is a partner at Barclay Damon who represents employers in all types of labor and employment matters and frequently defends businesses in website accessibility lawsuits. Martine Wayne is an associate in Barclay Damon’s Labor & Employment and Commercial Litigation Practice Areas.

[1] 42 U.S.C. § 12182(a).

[2] 42 U.S.C. § 12101 et seq.

[3] Guidance on Web Accessibility and the ADA | ADA.gov.

[4] Americans with Disabilities Act | U.S. Department of Labor (dol.gov).

[5] 42 USCS § 12188 et seq. (1990).