Driving the news:
On December 5, 2023, the United States Supreme Court issued an opinion in Acheson Hotels, LLC v. Laufer, declaring it moot – dismissing the case. The case was initially poised to address the question of whether individuals known as ADA “testers” possess the constitutional standing required to file lawsuits against companies for alleged ADA violations.
This means that legally, the issue of ADA tester standing is still undecided in the United States. Testers visit business websites solely to assess compliance with the Americans with Disabilities Act’s web accessibility standards.
Why it matters:
The core question here is if, to initiate an ADA lawsuit in federal court, the individual bringing the suit suffered some injury-in-fact, or actual harm. Testers may argue that injury-in-fact occurs once they meet barriers to accessibility or are unable to access information as required by the ADA. Opponents may argue that if the tester never intended to purchase a business’s goods and services that the tester was not harmed in the first place, and therefore has no right to bring a lawsuit.
The case:
The case’s resolution was preempted when Deborah Laufer, the plaintiff and an ADA tester, voluntarily withdrew her lawsuits. As a result, the Supreme Court opted not to weigh in on the legitimacy of ADA testers’ lawsuits, leaving the issue unresolved.
This action is one of hundreds filed by Laufer against hotels, alleging that the hotels’ websites failed to provide facility accessibility information as required by the ADA. One of the key issues was whether or not Laufer had suffered an injury that would give her standing to bring the lawsuit. The case, originally filed in federal court in Maine, was dismissed for lack of standing because Laufer had no intention of staying at the hotel. Laufer appealed the decision to the First Circuit Court of Appeals, which ruled in Laufer’s favor. Acheson Hotels appealed that decision to the United States Supreme Court.
Laufer then informed the Supreme Court that she had dismissed all of her hotel lawsuits, including the case against Acheson Hotels, rendering the case before the Supreme Court moot. She claimed she dismissed the cases because one of her former attorneys, Tristan Gillespie, had been suspended from practicing law by the District Court in Maryland for unethical behavior. Laufer reasoned that Gillespie’s suspension and alleged misconduct would “distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself.” Acheson Hotels argued that the dismissals were a manipulation of jurisdictional rules to avoid the Supreme Court ruling.
On December 5, 2023, the United States Supreme Court decided unanimously that Acheson Hotels, LLC v. Laufer was moot because Laufer’s dismissal of her case against Acheson Hotels meant there was no ongoing controversy to rule on.
Why this case dismissal leaves core issue unresolved for businesses:
In situations where a split develops in the Courts of Appeals’ legal interpretations, the Supreme Court may step in. Currently, courts are split over whether or not ADA testers have standing in the context of digital accessibility cases. With the Supreme Court declining to address the question in the Acheson case, it is still unclear whether a website’s barriers to access or lack of information satisfy the injury-in-fact requirement.
The Supreme Court’s unwillingness to decide the issue means that in order to evaluate relative risk being sued by ADA testers, businesses must look to the Courts of Appeals for the circuits where they do business.
Fourth Circuit:
- Covers businesses in Maryland, Virginia, West Virginia, North Carolina, and South Carolina.
- Being unable to access information on a business’s website is enough to allow standing, even if the tester never actually intends to patronize the business.
Second, Fifth, Tenth, and DC Circuits:
- Cover businesses in Connecticut, New York, Vermont, Louisiana, Mississippi, Texas, Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and The District of Columbia.
- These jurisdictions require more than just a claim of being a tester, such as a concrete intent to visit or purchase goods from a business.
First and Eleventh Circuit:
- Covers, respectively, businesses in Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico and Alabama, Florida, and Georgia.
- Previously ruled that testers had standing, both in cases involving Laufer. After the Supreme Court’s decision and Laufer’s dismissals, the Circuit’s decisions upholding tester standing were vacated.
- Businesses in the First and Eleventh Circuits, and in other jurisdictions not mentioned above, are left in an uncertain situation without the Supreme Court or federal appellate court guidance, which leaves the issue for individual judges to decide.
What businesses need to know:
Ensuring digital accessibility is critical in every state, but those outside the jurisdictions of the Second, Fifth, Tenth, and DC Circuits need to be especially wary. Here, ADA testers have the standing to initiate lawsuits without the need to sufficiently allege interest in a product or service or demonstrate actual personal harm resulting from inaccessibility. The process is straightforward: testers simply copy a business’s website URL, paste it into an online accessibility checker, and generate a report. If the report indicates non-compliance, it can serve as the basis for a lawsuit. Therefore, for businesses operating in jurisdictions where ADA testers have standing, facing a lawsuit could be just a few clicks away. This underscores the importance of proactively ensuring that digital properties are accessible to all users, to mitigate the risk of legal action.
