ADA “tester” case dismissed by US Supreme Court | Commentary

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Earlier this month, this publication ran an article [1] about a website accessibility lawsuit then-pending before the Supreme Court of the United States. Since that article’s publication, the Court issued its opinion [2], which carries significant implications for the future landscape of website accessibility litigation under the Americans with Disabilities Act (“ADA”).

The case, Acheson Hotels, LLC. v. Laufer, involved a self-proclaimed serial “tester” plaintiff, Deborah Laufer, who admittedly had no intention of booking a room at a property then-owned by Acheson Hotels, LLC. Laufer, a frequent litigant who has initiated over 600 similar lawsuits across 22 states against hotels, motels, and other places of lodging, alleged that the website and online reservation system for the property lacked sufficient information about accessibility features of the property, in violation of the ADA.

Federal appellate courts across the country have been divided as to whether serial “tester” plaintiffs have suffered an injury sufficient to establish standing to sue in similar cases, and there was anticipation that a Supreme Court decision in this case would provide clarity and resolve the existing split among the appellate courts.

Following a dismissal by a federal district court in Massachusetts on the grounds that Laufer did not experience an injury, the US Court of Appeals for the First Circuit reversed the district court decision, finding Laufer had standing to sue Acheson Hotels. By the time the case reached the Supreme Court, Laufer had voluntarily dismissed her lawsuit and all other pending lawsuits (after her lawyer had been sanctioned by the district court), leading some to argue that the case against Acheson Hotels had become moot.

Acheson Hotels urged the Supreme Court to decide the issue of standing, irrespective of the perceived mootness of the case. This request aimed to limit future lawsuits, which are not only expensive and burdensome to defend, but frequently involve claims lacking merit, thereby placing a strain on both judicial resources and small businesses.

Unfortunately for Acheson Hotels and other places of lodging at risk of being targeted as a defendant in a website accessibility lawsuit, the Supreme Court never reached the issue of standing. On December 5, 2023, in an opinion written by Justice Amy Coney Barrett, the Supreme Court unanimously dismissed the case as moot, and in sidestepping the issue of standing, the Supreme Court emphasized “that we might exercise our discretion differently in future cases.”

Consequently, the split among federal appellate courts remains as to whether serial “testers” have experienced sufficient injury to establish standing to sue places of lodging based on purported informational deficiencies on websites under the ADA.

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] https://nydailyrecord.com/2023/12/04/ada-accessibility-lawsuit-reaches-the-supreme-court/

[2] https://www.supremecourt.gov/opinions/23pdf/22-429_h315.pdf