Civil rights “tester” asks court to dismiss case
on Jul 28, 2023 at 3:54 pm
This article was updated on Aug. 10 at 11:10 a.m.
Lawyers for a self-appointed civil rights “tester” have asked the Supreme Court to dismiss her case as moot – that is, no longer a live controversy. Deborah Laufer, who has physical disabilities and vision impairments, told the justices that she has voluntarily dismissed her case in the district court after an attorney who represented her in other cases was disciplined by a federal court in Maryland. But lawyers for the hotel company that Laufer is suing urged the justices to go ahead and decide the case, telling them that they “should not pull the rug out from under” the company “when it is on the cusp of its day in this Court.”
In a brief unsigned order on Aug. 10, the court declined to dismiss the case. The justices indicated, however, that they could still consider whether the case is moot at the oral argument on Oct. 4.
Laufer filed her lawsuit in federal court in Maine against Acheson Hotels, alleging that the website for an inn that Acheson operates there did not contain enough information about the inn’s accommodations for people with disabilities. That dearth of information, she contended, violated the Americans with Disabilities Act.
The district court threw out Laufer’s lawsuit, holding that she did not have a legal right to sue because she had no plans to visit the hotel and therefore was not injured by the lack of information on the hotel’s website. But when the U.S. Court of Appeals for the 1st Circuit reinstated her lawsuit, Acheson Hotels went to the Supreme Court, which agreed to decide whether Laufer can sue. The case is scheduled for oral argument on Oct. 4.
In its brief on the merits, filed on June 5, Acheson Hotels renewed its argument that Laufer does not have a legal right to bring the lawsuit. It argued that, in any event, the case should be dismissed because the hotel’s website now indicates that its rooms are not accessible for people with disabilities, so that Laufer has received the information she sought.
In a 10-page filing earlier this week, lawyer Kelsi Brown Corkran of the Georgetown University Law Center asked the justices to dismiss Laufer’s case as moot. Corkran cited recent disciplinary proceedings in a federal court in Maryland against Tristan Gillespie, who has filed over 600 lawsuits under the ADA on behalf of Laufer and other “testers.”
A report issued on June 30 by three federal judges recommended that Gillespie be suspended from practicing before the Maryland court for six months. It noted that Gillespie had filed as many as 16 “tester” complaints in one day, each seeking $10,000 in attorneys’ fees even though it was “highly improbable” that he had actually spent that much time on each lawsuit. The report found that Gillespie had violated the rules governing the conduct of lawyers “not once, or twice, but hundreds of times,” and that he had “litigated his cases with his clients as an afterthought” – failing, for example, to keep his clients up to date on settlement agreements or to inform them of his decision to dismiss over 100 cases when facing the prospect of disciplinary action.
In considering factors that might weigh in favor of a lighter sanction for Gillespie, the report acknowledged that Gillespie had not acted on his own, but instead “at the direction of his boss, Thomas B. Bacon,” who represented Laufer in the 1st Circuit and in opposing Supreme Court review. (Corkran’s filing indicates that Bacon no longer represents Laufer in the Supreme Court.) The panel believed that Gillespie had “joined a pre-existing scheme that raises serious ethical concerns—including repeat clients, a compromised investigator, and a method for extracting unwarranted attorneys’ fees from targeted hotels based on a well-worn settlement script.”
Gillespie was not involved in the dispute that is currently before the Supreme Court, Corkran told the justices, while Corkran and her team only became involved in the case after the justices granted review. But Laufer nonetheless opted to voluntarily dismiss her case in the district court so that the allegations against Gillespie do not become a distraction “from the merits of her ADA clams and everything she has sought to achieve for persons with disabilities like herself.” Because she has dismissed her district court case, Corkran contended, there is no longer a live controversy for the Supreme Court to decide. And because Laufer is responsible for the fact that there is no longer a case for the justices to decide, Corkran continued, the 1st Circuit’s decision in her favor should not stand.
Adam Unikowsky, the lawyer for Acheson Hotels, countered that it would be “extraordinarily unfair to” the company, as well as a “disaster for the rule of law,” to dismiss the case now. “Laufer’s litigation program,” Unikowsky contended, “was recently revealed to have been an unethical extortionate scheme, and the unapologetic purpose of Laufer’s effort to moot this case is to ensure that she or similar plaintiffs can continue pursuing similar schemes” by avoiding a ruling from the Supreme Court in Acheson’s favor, which would block all such “test” cases nationwide.
If Laufer’s case is dismissed, Unikowsky suggested, Acheson could be sued again, even though it has spent substantial resources defending against her lawsuit. And more broadly, he added, it will “set the precedent that it is perfectly fine for the plaintiff to abandon her case at the last minute to avoid an adverse ruling.”
There is no specific timetable for the justices to act on Laufer’s request. Laufer’s brief on the merits is due on Aug. 2.