Kevin J. Kearns is a summer law clerk at Washington Legal Foundation and a rising second-year student at Georgetown University Law Center.

UPDATE: On August 10, 2023, the Supreme Court denied the motion to dismiss the case as moot and oral argument will proceed as scheduled.

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An upcoming Supreme Court case, which may decide critical questions about the standing of Americans with Disabilities Act (ADA) testers, is at risk of being dismissed. In Acheson Hotels, LLC v. Laufer, all amici, including the United States, have argued that the plaintiff-respondent Deborah Laufer lacks standing to sue. As of July 24, Laufer dropped her claim, arguing that she does not want her previous attorney’s ethical violations to detract from the merits of her Supreme Court argument. Still, the Supreme Court should hear her case and clarify that neither she nor any other ADA tester not intending to lodge at a defendant’s public accommodation can establish standing.

Acheson Hotels, LLC v. Laufer

Deborah Laufer is both a determined disability rights advocate and a “serial litigant.” A Florida resident with mobility challenges, limited use of her hands, and vision impairment, Laufer has filed more than 600 ADA lawsuits against hotels and hospitality companies. As a self-proclaimed ADA “tester,” she checks companies’ ADA compliance by visiting their websites and suing the companies when she finds ADA violations. In each suit, she alleged that these companies’ website reservation systems lacked adequate information about room accessibility. Such inadequate information violates the “Reservation Rule,” an ADA regulation promulgated by the Department of Justice.

One of Laufer’s many lawsuits has arrived at the Supreme Court: Acheson Hotels, LLC v. Laufer. Laufer sued Acheson Hotels, a small business in Maine, after she found that its Coast Village Inn and Cottages lodging facility lacked accessibility information through its online reservation system. Yet, Laufer has no intention of visiting Coast Village. Thus, the question presented to the Supreme Court is whether an ADA tester has Article III standing to challenge a hotel’s failure to provide accessibility information on its website when the plaintiff has no intent to stay there.

The Issue of Standing: Lujan, Havens Realty, and TransUnion

Acheson Hotels hinges on Laufer’s standing to sue, or her ability to have a federal court adjudicate her claim and potentially grant a remedy. The Supreme Court considers standing a prerequisite under Article III’s mandate that federal courts hear only “cases or controversies.” The current Article III standing test comes from Lujan v. Defenders of Wildlife (1992). The Lujan test requires a party to prove that: (1) it suffered an “injury in fact,” which is a “concrete,” “particularized,” and “actual or imminent” violation of a legally protected interest; (2) the injury is causally connected and “fairly traceable” to the defendant’s conduct; and (3) the injury will likely be “redressed by a favorable decision.”

Despite her lack of interest in traveling to Coast Village, Laufer argues that she passes the Lujan test because she suffered an informational injury. The Supreme Court has previously recognized informational injuries as a basis for standing in several cases. Most notably, Havens Realty Corp. v. Coleman (1982) held that a tester had standing under the Fair Housing Act after an apartment company denied her honest information about housing availability because of her race. More recently in Spokeo, Inc. v. Robins (2016), the Court acknowledged that informational injuries can sometimes support standing if one’s statutory rights were harmed or seriously threatened. For example, Public Citizen v. Department of Justice (1989) and Federal Election Commission v. Akins (1998) involved plaintiffs suffering informational injuries. These plaintiffs were barred from adequately participating in judicial selection and the political process respectively.

In 2021, TransUnion LLC v. Ramirez elaborated on the standing doctrine. In a 5-4 decision, the Court held that a party must suffer concrete harm such as physical, monetary, or reputational harm to establish standing; merely identifying a violation of statute is insufficient. The majority clarified that informational injuries under the Court’s precedent involve adverse effects, often derived from not receiving information that by statute must be publicly disclosed. Although several dissenting justices believed that the majority limited the scope of standing, the decision harmonizes the Lujan test, Havens Realty, Public Citizen, and Akins, ensuring the judiciary hears only true “controversies” in which the plaintiffs suffered concrete harm.

Why Laufer Lacks Standing

To resolve this case, the Court must clarify the intent of the ADA’s intent and grapple with accompanying regulations about reservation systems. If the statute and rules were intended to provide an informational right to individuals with disabilities, and the Court decides that the violation of the ADA’s accompanying regulations grant standing, Laufer can sue. But if these provisions were designed to only protect those seeking to reserve a room through a hotel website, then she cannot.

Havens Realty provides a good model for making this determination. The Fair Housing Act provided that it was unlawful for an entity “[t]o represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.” Therefore, the purpose of the statute was to share honest information with everyone. Justice Brennan accordingly found that a tester with no intent to rent an apartment still had standing, because she had been subjected to legally prohibited misrepresentation.

The intent of the ADA and its accompanying regulations indicates that Laufer lacks standing. The ADA’s accompanying regulations note that “any person who is being subjected to discrimination on the basis of disability in violation of the Act . . . may institute a civil action for preventive relief.” 28 C.F.R. 36.501(a). Per the ADA, “discrimination” against individuals with disabilities by places of public accommodation can include “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” 42 U.S.C. § 12182(b)(2)(A)(ii).

The “Reservation Rule,” the ADA regulation on which Laufer’s argument rests, clarifies this definition of discrimination in the context of hotel reservations. “With respect to reservations made,” public accommodations must “modify” their “practices” to “ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours” as others booking non-accessible rooms. 28 C.F.R. 36.302(e)(1)(i) (emphasis added). Hotels must also “describe accessible features in the hotels and guest rooms offered through its reservations service” well enough for any individual with a disability “to assess independently whether a given hotel or guest room meets his or her accessibility needs . . .” 28 C.F.R. 36.302(e)(1)(ii) (emphasis added). Finally, the “requirements in this section will apply to reservations made . . .” 28 C.F.R. 36.302(e)(3) (emphasis added).

The Reservation Rule’s purpose is thus to allow individuals with disabilities who are making reservations to do so with adequate information and without additional hurdles—not to provide information to the public or people with disabilities in general. In contrast, the Federal Housing Act sought to give all people the right to honest information about housing availability. Because Laufer never intended to make a reservation at Coast Village, she was not the subject of discrimination under the ADA, she never suffered a violation of a legally protected interest, and she suffered no adverse effects from any statutory violation. Although she claims to have suffered a stigmatic injury, namely the emotional harm derived from Acheson Hotels’ lack of information, she still lacks standing because she was not the subject of discrimination.

Why the Court Should Hear the Case

Although Laufer abandoned her claim against Acheson Hotels, the Supreme Court should still hear oral arguments for her case as planned on October 4. The Court has the authority to hear the case, and doing so would save the federal judiciary’s resources. And the claim presents issues of significant importance that divide the circuit courts.

The Court has the power to choose whether to dismiss a case on the grounds of standing or mootness. According to Sinochem International Co. v. Malaysia International Shipping Corp. (2009), any “federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” Therefore, it may exercise discretion to hear the case.

Further, it is costlier for the federal court system to dismiss this case on grounds of mootness than standing. ADA web accessibility litigation is exploding in the lower courts, with many suits initiated by serial litigants lacking legitimate standing. Research from Seyfarth Shaw shows there were 3,255 ADA web accessibility lawsuit filings in 2022, translating to a 400 percent increase between 2017 and 2022. Serial litigants other than Laufer, such as Samuel Love (more than 850 cases total) and Patricia Kennedy (more than 250 lawsuits in one jurisdiction), will continue to sap judicial resources by filing more claims without standing. Although Laufer argues that litigating the standing issue at the Supreme Court would be costlier than dismissing the case as moot, she does not acknowledge the massive judicial costs the lower courts are paying as this question remains unresolved.

The Supreme Court would also resolve significant issues plaguing the public if it decides that Laufer lacks standing. The litigation surge described above exacts a significant toll on small businesses, who are the most likely target of plaintiffs’ lawyers representing ADA testers without standing. Many of these small businesses cannot afford to litigate the issue of standing like Acheson Hotels, so they are forced to settle. Furthermore, it would signal to Congress that clarification of the ADA is necessary if the legislature wants to prioritize better enforcement of the issues Laufer and ADA testers raise.

Finally, there is a significant circuit split on the issue before the Court. The Second, Fifth, and Tenth Circuits do not grant ADA testers standing, while the First, Fourth, and Eleventh do. Even within each side of the split, there are inconsistent articulations of standing and the reasoning behind Havens Realty and TransUnion. The Court would be doing the federal judiciary and the public at large a great service if it decided to clarify that ADA testers lack standing.