The Supreme Court heard oral arguments this week in a case that centers on the alleged lack of accessibility information on hotel websites, as mandated by the Americans with Disabilities Act. The case – which was filed by disability activist Deborah Laufer in a federal court in Maine in 2020 – is being touted as capable of having a far-reaching impact on civil rights law. At issue before SCOTUS is whether “a self-appointed Americans with Disabilities Act (‘ADA’) ‘tester’ has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.”
Some Background: At the heart of the more than 600 lawsuits that Laufer has filed against hotels – including Acheson Hotels in the case at hand – is her allegation that by failing to provide accessibility information on their websites, hotels are violating a 2010 Justice Department regulation that requires reservation systems to include accessibility information. After the district court dismissed Laufer’s complaint on the basis that she failed to demonstrate an injury in fact, the U.S. Court of Appeals for the First Circuit revived the case.
According to the Boston-based appeals court, under the ADA, Laufer was entitled to information about accessibility that was not provided on Acheson Hotels’ website. Even if Laufer never intended to stay at the hotel, the panel for the First Circuit held that “she was still injured in precisely the way the statute was designed to protect.” The court’s decision conflicted with the determinations of other federal circuits, including at the Second and Tenth Circuits, which have held that “a plaintiff’s encounter with an ADA violation found on a website of a public accommodation does not automatically confer that plaintiff with standing to sue unless there are downstream consequences resulting from the violation,” per Seyfarth Shaw’s Minh Vu. “These courts require a plaintiff to show that the plaintiff wanted to patronize the public accommodation but could not because of the ADA violation on the website.”
The Supreme Court granted certiorari in March 2023, with Acheson arguing that Laufer cannot establish standing based on her alleged “informational injury” since she did not suffer concrete injury when she did not experience any adverse consequences for failing to obtain the accessibility information. During oral arguments on October 4, at least a few of the justices seemed to be leaning in favor of Acheson, with Justice Neil Gorsuch, for instance, stating that “spending the afternoon clicking through these [websites]” is not sufficient to establish standing. Justice Ketanji Brown Jackson similarly did not seem convinced, asserting that by simply checking hotels’ websites to see if the appropriate accessibility information is made available (and not being subject to discrimination at such hotels), Laufer might be more akin to an individual who has witnessed discrimination, as opposed to someone who has experienced it directly.
The Bigger Picture for Retailers & the ADA
The impact of the Supreme Court’s impending decision (should it decide that the case is not moot since Acheson has updated its website to adhere to the ADA) stands to extend to entities beyond the hospitality industry and affect other companies that provide public accommodations, including retailers, which have similarly been subject to a wave of ADA litigation. As the Chamber of Commerce and the International Council of Shopping Centers asserted in an amicus brief lodged with the court, the ADA has served as the basis for “serial litigation” waged against companies in the U.S. by a “a small cadre of tester plaintiffs and their counsel.” The impetus for such litigation, they contend, is “not to benefit disabled patrons who actually intend to frequent businesses,” but instead, is “driven by the economics of attorney’s fees.”
In a brief of their own, which they also filed in favor of Acheson, the Retail Litigation Center (“RLC”) and the National Retail Federation (collectively, the RLC”) argued that Laufer is “not unique,” as she joins “other serial ADA plaintiffs [who] have collectively brought staggering numbers of similarly troubling suits.” While some litigants, like Laufer, “seek out hotels with website listings they say are not compliant with [the ADA] despite having little or no actual connection with those hotels,” others have relied on “a range of legal theories to exploit the ADA.” For example, the RLC – whose members include Abercrombie, Apple, Gap, H&M, Levi’s Macy’s, Neiman Marcus, and Victoria’s Secret, among others – states that some litigants have sued retail stores “for not stocking Braille gift cards (which the ADA does not require stores to sell).”
If the Supreme Court does not “limit their ability to bring these lawsuits,” the RLC claims that “serial litigants like Laufer will keep exploiting the ADA to force settlements from businesses, and clog federal court dockets, with meritless and bad-faith lawsuits.” And unless the court “reaffirm[s] well-established and common-sense standing principles,” the trade groups further assert that it will “allow ADA serial litigants to continue bringing their lawsuits, [which] will open the door for other plaintiffs, and their lawyers, to exploit the same expansive standing rules to pursue other kinds of meritless litigation” – against an expanding pool of retailers – as well.
The case is Acheson Hotels LLC v. Laufer, No. 22-429 (U.S.)
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