On December 5, the Supreme Court issued a unanimous opinion by Justice Amy Coney Barrett in Acheson Hotels LLC v. Laufer dismissing the case as moot. Acheson concerned whether Article III of the Constitution provides “tester” plaintiffs standing to sue for alleged Americans with Disabilities Act violations, even when such plaintiffs have no intention of patronizing the business they are suing.

Laufer, a Florida resident with mobility issues and other impairments, sued Acheson Hotels, LLC, for failure to accommodate her disabilities under Title III of the ADA at one of its hotels—The Coast Village Inn and Cottages located in Maine. Laufer said that Acheson’s website violated an ADA regulation known as the “Reservation Rule” by failing to provide information that identifies the hotel’s accessibility features and allows for booking of accessible rooms. She also argued that Acheson was liable for the failure of third-party platforms, which take reservations for its hotel, to provide such information.

Laufer is a self-proclaimed “tester” plaintiff; such plaintiffs search out supposed violations of the ADA and then file lawsuits to remedy the alleged violation and collect fees. As is often the case with tester plaintiffs, Laufer openly admitted during the litigation that she had not visited the Coast Village Inn and Cottages and had no intention of doing so. The Supreme Court took the case to resolve a circuit split that Laufer herself generated with her many ADA lawsuits. The Second, Fifth, and Tenth Circuits have held that testers like Laufer do not have standing to sue, while the First, Fourth, and Eleventh Circuits have held that they do.

During merits briefing, Laufer filed a suggestion of mootness in the case on the ground that she had voluntarily dismissed her pending suits, including her suit against Acheson Hotels. Those voluntary dismissals came after a lower court suspended and sanctioned her lawyer for defrauding hotels by lying in fee petitions and during settlement negotiations. Her attorney also funneled money to Laufer’s grandchild for “investigatory work” he never performed, raising the possibility that Laufer and/or her attorney got a cut of the money.

Acheson Hotels argued that the Supreme Court may address jurisdictional issues in any order and urged it to resolve the standing issue before the mootness issue considering the circuit split and the fact the case had been fully briefed. The Supreme Court agreed that it could address standing rather than mootness, but it declined to do so based largely on Laufer’s representation that she would not be filing any more suits.

Justice Thomas wrote separately, concurring in the judgment only. He would have decided the standing question directly and concluded that Laufer lacks standing because she was not alleging a violation of her rights. In arguing that Laufer’s standing should be rejected, Justice Thomas repeated several of the Article II concerns raised in amicus briefs filed at the petition stage and when the Court granted certiorari by an organization I run, the Center for Constitutional Responsibility.

Among other things, Justice Thomas found it problematic that, “[r]ather than assert a violation of her own rights, Laufer casts herself in the role of a private attorney general, surfing the web to ensure hotels’ compliance with the Reservation Rule.” Quoting Lujan v. Defenders of Wildlife, the Court’s seminal modern standing case, Thomas said “‘[v]indicating the public interest . . . is the function of Congress and the Chief Executive,’ . . . not private plaintiffs.” Justice Thomas noted that, under Article II, “[t]he President is tasked with the duty to ‘take Care that the Laws be faithfully executed,’ and executive branch officials have discretion to choose whether and how to enforce the law.” It is not the job of tester plaintiffs, like Laufer, to enforce the law.

Justice Thomas agreed with the opinion of 11th Circuit Judge Kevin Newsom, who had heard one of the other six hundred cases brought by Laufer. In his concurring opinion in Laufer v. Arpan, LLC, Judge Newsom pointed out that Laufer and testers like her are unaccountable to the public, yet “‘exercise the sort of proactive enforcement discretion properly reserved to the Executive Branch.”

According to Justice Thomas, Laufer’s case “exemplifies the dangers” with unaccountable private parties wielding executive power. He noted that Laufer’s unconstrained methods for enforcing the law were quite different from how a government official likely would have enforced the ADA regulation at issue. Justice Thomas concluded that “[e]nsuring and monitoring compliance with the law is a function of a Government official, not a private person who does not assert a violation of her own rights.”

Justice Ketanji Brown Jackson filed a separate concurrence agreeing that the case was moot but disagreeing with the Court’s decision to automatically vacate the lower court ruling as the Supreme Court did here.

The Court’s dismissal of Acheson Hotels is unwelcome news for the thousands of businesses that have been sued by tester plaintiffs like Laufer. Indeed, seventeen business groups filed amicus briefs highlighting the real-world problems ADA tester litigation poses to businesses across industries, particularly small businesses.

 

That said, it seems inevitable the issue of ADA tester standing will make its way back to the Supreme Court. The Court acknowledged that the circuit split on the issue remains “very much alive.” 

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