Civil rights tester case heads to high court

Deborah Laufer is a self-appointed civil rights tester. From her home in Florida, Laufer – who has multiple sclerosis and uses a wheelchair or a cane to move around – combs the internet to look for hotels whose websites do not provide information about the accessibility of the hotel’s facilities. Since 2018, Laufer has sued over 600 hotels, alleging that the failure to provide information about accessibility violates the Americans with Disabilities Act. Laufer says that these lawsuits have prompted “countless hotels” to add information about accessibility to their websites. But one of the hotels that she sued argues that because Laufer never intended to stay there, she does not have a right to sue, known as standing. The court’s decision could be an important one not only for tester lawsuits brought under the ADA, but also for what it could say about the right to sue more broadly.

The reservation rule

Enacted in 1990, the ADA prohibits discrimination against people with disabilities by businesses that serve the public. Regulations issued pursuant to the ADA – known as the “reservation rule” – require hotels to describe the accessibility of their facilities through their reservation service “in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.”

Until August 2022, when it sold the inn to new owners, Acheson Hotels operated The Coast Village Inn and Cottages in Wells, Maine. In September 2020, Laufer sued Acheson in federal court, alleging that the inn’s website violated the “reservation rule” because (among other things) it didn’t identify accessible rooms or give her enough information to determine whether the inn was accessible to someone with a physical disability.

Acheson asked the judge to dismiss the case. Because Laufer was only a tester and did not intend to actually book a room at the inn, Acheson contended, she did not have standing. The district court agreed with Acheson and dismissed the case.

The U.S. Court of Appeals for the 1st Circuit reversed and reinstated Laufer’s lawsuit. Laufer, the court of appeals reasoned, alleges that under the ADA she had a right to information about accessibility that the hotel’s website did not provide. The hotel’s failure to do so, the court of appeals explained, gives Laufer the right to sue. Even if she never intended to stay at the hotel, the court of appeals concluded, “she was still injured in precisely the way the statute was designed to protect.”

The hotel went to the Supreme Court, asking the justices to weigh in. In a relatively rare move, Laufer agreed that the court should grant review, urging the justices to resolve the conflict among the lower courts over whether testers like her have standing. The justices agreed in March to take up the case.

Dueling arguments on tester standing and “informational” injuries

Defending the 1st Circuit’s decision, Laufer contends that the text of the ADA allows “any person” with disabilities to file a lawsuit if she is confronted by a barrier to accessibility and is therefore “subjected to discrimination on the basis of disability.” That, Laufer says, is exactly what happened in her case: When she visited Acheson’s website and realized that it did not provide information about accessibility, so that she could not “enjoy the service as fully as non-disabled people,” she was personally subjected to discrimination – even if she did not intend to stay at Acheson’s hotel.

The Supreme Court’s 1982 decision in Havens Realty Corp. v. Coleman, Laufer says, makes clear that a tester like her has standing to challenge discrimination. That case was brought under the Fair Housing Act by a Black woman who did not intend to rent an apartment, but simply wanted to see whether the realtor would tell her the truth about whether there were apartments available – which it did not. The Havens court explained, Laufer writes, that as long as the plaintiff “personally encounters the discriminatory treatment, she is injured ‘in precisely the form the statute was intended to guard against, regardless of her motive in the encounter.'”

In this case, Laufer argues, the ADA does not require a plaintiff to stay at a particular hotel, and it applies both to places of public accommodation and to the “services” that they provide. Her lawsuit, she stresses “is a challenge to Acheson’s failure to provide equal access to its online reservation system, which is a service Acheson provides in its capacity as a place of public accommodation.”

A “friend of the court” brief filed by fair housing groups and testers echoes Laufer’s argument, telling the justices that testers “are not inviting or anticipating discrimination” but instead try “and expect to confirm compliance with fair housing laws—the most common outcome of their tests.” If testers experience discrimination, the groups stress, this is not a self-inflicted injury. Instead, they have been harmed by the person who illegally discriminated against them.

Acheson counters that Laufer’s injury is purely an “informational” one: She was injured because the hotel’s website had failed to provide information about its accessibility. But in 2021, in TransUnion v. Ramirez, Acheson notes, the Supreme Court held that an informational injury that does not cause any harm cannot be the basis for standing. Because Laufer does not actually intend to use Acheson’s accessible facilities, it reasons, her failure to receive any information about those facilities does not give her a right to sue. Otherwise, Acheson asserts, “anyone—not just someone who uses a wheelchair—would have” a right to sue “for failure to provide accessibility information.”

Acheson also pushes back on Laufer’s suggestion that she has standing because she is harmed from the stigma of being unable to obtain the information she seeks. The Supreme Court, Acheson writes, has made clear that plaintiffs alleging a “stigmatic injury” have a right to sue only when their injuries have been “suffered as a direct result of having personally been denied equal treatment.” The hotel points to the court’s 1984 decision in Allen v. Wright, holding that plaintiffs could not challenge the Internal Revenue Service’s grant of tax-exempt status to racially discriminatory schools that their children did not attend, when the plaintiffs’ only allegation was that other students had been victims of racial discrimination.

What Laufer is really trying to do is “enforce the law on behalf of other disabled persons,” Acheson tells the justices, but that is “the job of the Executive Branch, not Laufer.” And in any event, the hotel adds, it “has updated its website to state that its hotel is not accessible,” which means that Laufer has “received the information she seeks” and is no longer injured by her failure to receive it.

The Biden administration stakes out a middle ground. As a general matter, it agrees that tester lawsuits have an important role as “an essential complement to the federal government’s limited enforcement resources.”

But Laufer, the Biden administration concludes, does not have standing to bring her lawsuit because the ADA and the “reservation rule” only are intended to provide people with disabilities with equal access to the ability to make reservations – not a right to information. Therefore, someone like Laufer who “merely views a hotel’s online reservation service without intended to use the service to make or consider reservation lacks standing because she has not” actually been injured.

Broader consequences of the court’s decision

Acheson cautions that a ruling for Laufer will have even more far-reaching ramifications. If Laufer prevails and a plaintiff can establish the kind of injury needed to obtain standing simply by visiting a website, Acheson contends, “the law of standing would be dramatically expanded. “Any generalized injury could be transformed into a particularized injury” that would be enough for standing as long as the plaintiff was exposed to the harm on the website.

And more broadly, Acheson reminds the justices, its hotel and many others may not have their own lawyers and may not have been aware of the reservation rule. If testers like Laufer find hotel websites that do not comply with the reservation rules, it suggests, the better approach may be to simply call and ask.

“Friend of the court” briefs supporting Acheson make a starker point, arguing that tester lawsuits like Laufer’s are motivated less by a desire to enforce the ADA than by finances. A brief by the Chamber of Commerce argues that cases like Laufer’s are part of a “wave in abusive litigation” that is “driven by the economics of attorneys’ fees,” with “serial plaintiffs” (including Laufer) filed 67 percent of the “reservation rule” cases filed since the rule was issued in 2011. The Retail Litigation Center warns that if the lower court’s ruling is allowed to stand, “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.”

Laufer decries “Acheson’s villainization of Title III testers” as “both factually wrong and legally irrelevant.” Instead, she tells the justices, tester lawsuits like hers are “crucial to fulfilling the ADA’s goals” because most people with disabilities lack the resources to bring lawsuits challenging accessibility barriers, particularly when the ADA does not allow them to receive financial compensation for violations. And as a practical matter, she reasons, even if a would-be traveler with a disability identifies a violation of the “reservation rule” and files a lawsuit, the litigation would almost certainly take too long to actually benefit the traveler. What’s more, if the traveler did take the trip, she would no longer have standing under Acheson’s theory.

Is the case moot?

Despite the importance of the question presented in the case, both sides (and the Biden administration) have argued, although for different reasons, that the case is moot – that is, no longer a live controversy – and the justices therefore should not decide it.

In her merits brief, Laufer downplays accusations levied by Acheson and the “friend of the court” briefs about “serial” litigants and possible ethical concerns, dismissing them as “irrelevant” to the question before the justices and “ably addressed by our legal system.” “Courts,” Laufer wrote, “can impose monetary sanctions and disciplinary penalties against attorneys for unethical behavior, and state bar associations have a range of additional tools to punish attorneys who cross ethical lines.”

In July, Laufer asked the court to dismiss her case, and invalidate the 1st Circuit’s decision in favor, because she had voluntarily dismissed her case in the district court and cannot refile it. She explained that in a report issued in June, three federal judges recommended that Tristain Gillespie, an attorney who represented her in other ADA cases, be suspended from practicing before the Maryland court for six months because he had violated legal ethics rules “not once, or twice, but hundreds of times.” Although Gillespie was not involved in the dispute now before the court, Laufer told the justices, she did not want the allegations against Gillespie to become a distraction from the merits of her claims.

Acheson urged the justices to allow the case to go forward despite Laufer’s dismissal, telling them that it would be “extraordinarily unfair to” the company to throw out the case now. “Laufer’s litigation program,” it contended, “was recently revealed to have been an unethical extortionate scheme;” Laufer wants her case in the Supreme Court dismissed so that she can avoid a ruling in Acheson’s favor, which would bar “test” cases nationwide.

The justices declined to dismiss the case but indicated, in an unsigned order, that they could still consider whether the case is moot at Wednesday’s oral argument.

Meanwhile, a separate question is also lurking in the background – specifically, whether there is still a live controversy when the hotel has updated its changes to the hotel’s website, adding (among other things) a banner to make clear that its rooms are currently not accessible. The Biden administration agrees that the updates have “mooted Laufer’s claims to at least some extent” or at the very least “greatly diminished the practical significance of any remaining dispute between the parties.”

This article was originally published at Howe on the Court.