Later this week, the Supreme Court will be hearing a case that originated in Maine several years ago — Acheson Hotels, LLC, Petitioner v. Deborah Laufer.
After hearing oral arguments Wednesday, the Court will be tasked with determining whether a “self-appointed Americans with Disabilities Act ‘tester'” has standing to challenge a hotel’s “failure to provide disability accessibility information on its website,” even if she never intends to visit the hotel in question.
In 2020, Laufer sued Acheson Hotels — which owns and operates Coast Village Inn and Cottages in Wells — for violating the Americans with Disabilities Act for failing to provide appropriate accessibility information on their website and in their reservation system.
This lawsuit was originally one of seven that Laufer filed in Maine that year, and one of more than 600 that she has filed over the past few years — primarily against small hotels and motels across the country.
National press has also criticized Laufer for her association with lawyers who have acted in an ethically-questionable manner — including Tristan Gillespie.
Gillespie recently received a six-month suspension from the Maryland District Court for his work with Laufer on many of these lawsuits, wherein — among other things — he extracted inordinately-high attorney fees from the hotels and motels that were the subjects of these lawsuits.
It is important to note, however, that Gillespie was not directly involved with the particular case that is currently before the Supreme Court.
The Americans with Disabilities Act (ADA) requires that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns…or operates a place of public accommodation.”
In other words, the ADA protects disabled individuals from discrimination that would prevent them from gaining equal access to and enjoyment of “public accommodations,” including hotels.
Additionally, the ADA directs the Attorney General to develop regulations designed to carry out various provisions of the ADA.
One such rule that has been developed is the “Reservation Rule,” which requires that hotels “identify and describe accessible features in the hotels and guest rooms offered through its reservations 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.”
A business can found to be in violation of the ADA if they fail to accommodate disabled individuals “in policies, practices, or procedures, when such modifications are necessary.”
In 2021, Maine’s district court moved to dismiss Laufer’s lawsuit against Acheson Hotels on the grounds that she had no standing to bring a claim, as she had no plans to actually visit the hotel and therefore suffered no injury.
Laufer then brought the dismissal to the First Circuit Court of Appeals which reversed the lower court’s decision, arguing that she did have standing since her lack of intent to visit the hotel in question did not negate the presence of injury.
Acheson Hotels then filed a petition for a writ of certiorari with the Supreme Court nearly a year ago asking them to reconsider the Circuit Court’s decision.
The Supreme Court agreed to review the case on March 27 of this year. Generally speaking, the Court is asked to review somewhere in the neighborhood of 7,000 cases each year and only accepts between 100 and 150.
Earlier this summer — after news broke of Gillespie’s misconduct — Laufer attempted to have the Supreme Court dismiss her case as moot on account of the fact that “the
allegations of misconduct against Mr. Gillespie could distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself.”
She also stated that the lower court’s decision, which was in her favor, ought to also be vacated on the grounds of mootness. Laufer further noted that she is abandoning all other active ADA-related litigation in which she is involved.
Acheson Hotels responded to this request, arguing that the Supreme Court ought to “standing issue on which it granted certiorari.”
“Laufer’s litigation program 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,” Acheson Hotels wrote. “Permitting Laufer to pull the plug on the case at this point would be a disaster for the rule of law and would be extraordinarily unfair to Acheson.”
“Laufer is abandoning her case to pave the way for Laufer and similar plaintiffs to resume their campaign of extortionate ADA suits against unwitting small businesses without the hindrance of an adverse ruling from this Court,” Acheson Hotels argued.
On August 10, the Supreme Court denied Laufer’s request for dismissal, stating that they would reconsider the question of mootness at oral argument in addition to the legal question already at the center of this case.
According to the brief filed with the Supreme Court by Acheson Hotels, Laufer has had no intention to visit any of the 600-plus hotels against which she had filed claims over the past several years.
“In each lawsuit, she alleges that she intends to return to the hotel’s website and seeks an injunction that would require the hotel to add accessibility information,” the brief says.
While the brief penned by Acheson Hotels focuses on Laufer’s lack of intent to ever visit the hotels in question, Laufer’s brief argues that “a tester’s motive for encountering discrimination is irrelevant.”
Acheson Hotels’ brief also addresses a claim made by Laufer that she suffered from a “stigmatic injury” when visiting the website of a hotel that does not provide proper accessibility information.
Because, however, she does not claim to have personally been denied access to the hotel as a result of the missing disclosures, but rather that other travelers would be denied such access, Acheson Hotels argues that Laufer’s claim does not give rise to standing.
Laufer, on the other hand, cites case law to support her assertion that she has standing to sue Acheson Hotels simply because she encountered their non-ADA compliant website.
Laufer’s brief also notes that although Acheson Hotels attempts to “cast aspersions” against her case and the cases of other ADA litigants by portraying them as a “nuisance,” it is rare for businesses to comply with ADA requirements voluntarily.
In the lawsuit that is set to be reviewed by the Supreme Court later this week, Laufer is seeking injunctive relief against Acheson Hotels on account of the fact that she will again suffer stigmatic injury should she return to their website in the future.
Acheson Hotels responds by stating that this would be “self-inflicted” and therefore does not provide a basis for legal standing. Additionally, they note that she cannot “establish standing based on her anticipation of subjectively experiencing an emotional injury.”
“The reality of this case is that Laufer is not seeking to remedy her own injuries. She is seeking to enforce the law,” Acheson Hotels argues, referring to Laufer’s self-appointed role as an ADA-compliance tester.
Although Acheson Hotels has since updated its website to include the required ADA disclosures, Laufer argues — and the First Circuit agreed — that since she intends to visit third-party booking sites that do not yet include this information, her claim is not moot.
Acheson Hotels contests this line of thinking, arguing that any “case or controversy vanished” once their website was updated to include the relevant information.
The American Civil Liberties Union (ACLU) has come out in support of Laufer in this case, writing on their website that they have “joined the Legal Defense Fund and seven other civil rights organizations in a friend-of-the-court brief urging the Supreme Court to uphold ‘tester’ standing as a critical method for enforcing civil rights laws.”
“The amicus brief argues that civil rights testers suffer the same dignitary harm as any other victim of discrimination and that such dignitary harm has long been recognized as a sufficient injury to provide standing to sue,” the ACLU wrote.
Once the Supreme Court hears oral arguments for the case this Wednesday, it will still be some time before they formulate and release their opinion. While it is never formally announced in advance when the Court will release its opinion on a case, it is typically done at least two to three months after oral arguments are heard.