Breaking News

Court takes up civil rights “tester” case

The Supreme Court will decide whether a civil rights “tester” can bring a lawsuit challenging a hotel’s failure to provide information about its accessibility for people with disabilities when the “tester” has no intention to actually visit that hotel. That case, Acheson Hotels v. Laufer, was the only new case that the justices added to their docket for the 2023-24 term in a list of orders released on Monday morning.

The question of a tester’s legal right to sue, known as “standing,” comes to the court in a case filed by Deborah Laufer, who has brought 600 lawsuits against hotels around the United States. Under the Americans with Disabilities Act, hotels are required to make information about their accessibility to people with disabilities available on reservation portals. In this case, Laufer – who has physical disabilities and vision impairments – went to federal court in Maine, where she alleged that a website for an inn that Acheson Hotels operates in that state did not contain enough information about the inn’s accommodations for people with disabilities.

The district court threw out her lawsuit. It agreed with Acheson Hotels that Laufer did not have standing because she had no plans to visit the hotel and therefore was not injured by the lack of information on the website. But the U.S. Court of Appeals for the 1st Circuit reinstated Laufer’s lawsuit.

That prompted Acheson Hotels to come to the Supreme Court, asking the justices to weigh in. The company pointed to a division among the courts of appeals on whether cases like Laufer’s can move forward; indeed, Acheson Hotels noted, courts have reached different conclusions about whether Laufer can bring these kinds of cases. And the issue has “immense practical importance,” the company stressed, describing a “cottage industry” “in which uninjured plaintiffs lob ADA lawsuits of questionable merit, while using the threat of attorney’s fees to extract settlement payments.”

Laufer agreed that review was warranted, although she urged the justices to uphold the lower court’s ruling. The justices will likely hear argument in the case in the fall, with a decision to follow sometime in 2024.

Over a dissent by two justices, the Supreme Court declined to hear the case of Steven Donziger, a human rights lawyer who was challenging a federal district court’s appointment of three private attorneys as special prosecutors after the U.S. Attorney’s Office declined to pursue criminal contempt charges against him. Donziger was eventually convicted and sentenced to six months in prison.

The events giving rise to the contempt charges date back to 1993, when Donziger and other lawyers filed a lawsuit on behalf of indigenous peoples in Ecuador alleging that Texaco, which Chevron purchased in 2001, had dumped 17 billion gallons of crude oil into the Amazon rainforest. The plaintiffs won an $8.6 billion judgment against Chevron in a court in Ecuador. But in 2011, Chevron brought racketeering claims against Donziger and two of his clients in federal court in New York, alleging that they had obtained the judgment in Ecuador through bribery and fraud.

In 2014, U.S. District Judge Lewis Kaplan ruled for Chevron. He acknowledged that Donziger “began his involvement in this controversy with a desire to improve conditions in the area in which his Ecuadorian clients live.” But, Kaplan concluded, Donziger and his team “corrupted” the case – by, Kaplan said, eventually drafting the court’s judgment themselves, and promising the Ecuadorian judge $500,000 to sign it. Kaplan barred Donziger both from trying to enforce the judgment against Chevron and from profiting from it. Four years later, Kaplan also issued a $813,000 judgement against Donziger.

When Donziger refused to comply with court orders related to the injunction and the judgment against him, Kaplan referred his case to the U.S. Attorney for the Southern District of New York. But that office declined to pursue charges against Donziger, prompting Kaplan to appoint three private attorneys as special prosecutors.

Donziger argued that the appointment of those special prosecutors violated both Federal Rule of Criminal Procedure 42, which requires federal courts to appoint an attorney to prosecute criminal contempt charges when the government declines to do so; and the Constitution’s appointments clause, which gives the president the power to nominate, and the Senate the power to confirm, senior government officials.

The Supreme Court denied Donziger’s petition for review, with Justice Neil Gorsuch (in an opinion joined by Justice Brett Kavanaugh) indicating that he would have taken up the case. “However much the district court may have thought Mr. Donziger warranted punishment,” Gorsuch wrote, “the prosecution in this case broke a basic constitutional promise essential to our liberty. In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.”

The justices also called for the Biden administration’s views in two cases, Flagstar Bank v. Kivett and Cantero v. Bank of America, involving a similar question: whether federal banking laws supersede state laws that attempt to set the terms on which federally chartered banks may offer mortgage escrow accounts authorized by federal law. There is no deadline for the U.S. solicitor general to respond to the court’s call for its views.

The justices’ next conference is scheduled for Friday, March 31.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court takes up civil rights “tester” case, SCOTUSblog (Mar. 27, 2023, 10:52 AM),