Case Preview: Acheson Hotels, LLC v. Laufer - Considering ADA “Tester” Standing

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Chayila Kleist:  Hello and welcome to this Federalist Society webinar call. Today, September 6, 2023, we’re delighted to host a case preview of Acheson Hotels v. Laufer, a case considering ADA tester standing that is set to be heard by the Supreme Court next month. My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program as The Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, we’ll keep our introductions today brief, but if you’d like to know more about either of our guests today, you can access their impressive full bios at fedsoc.org.

 

Today, we’re fortunate to have with us as our moderator, Mr. Joel Nolette, who is an associate at Wiley Rein LLP, where he advocates on behalf of corporate and individual clients in a broad spectrum of complex litigation matters. Prior to joining Wiley Rein, from 2019 to 2021, Mr. Nolette clerked for the Honorable Raymond Gruender of the U.S. Court of Appeals for the Eighth Circuit, and from 2021 to 2022, he clerked for the Honorable Timothy Kelly of the U.S. District Court for the District of Columbia. Now, while there’s certainly more that could be said, for now, I’ll leave it there, and I’ll look to him to introduce our other speaker of the day.

 

A last note for our audience, before I get off your screens, if you have any questions throughout the program, please submit them by the Q&A feature, likely found at the bottom of your Zoom screens, so that our speakers will have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Mr. Nolette, the floor is yours.

 

Joel Nolette:  Thank you so much for that kind introduction, Chayila. It is my pleasure today to be able to moderate this discussion featuring Karen Harned, whose resume is -- speaks for itself, and I will just cover the highlights.  As Chayila said, the full CV is available at The Federalist Society website.  But Karen Harned is President of Harned Strategies LLC. Previously, she served as the Executive Director at the National Federation of Independent Business, their Small Business Legal Center, a post which she held from 2002 to 2022. Prior to joining the Legal Center there, Ms. Harned was an attorney at a Washington, D.C. law firm, specializing in food and drug law, where she represented several small and large businesses and their respective trade associations before Congress and federal agencies. Ms. Harned, thank you so much for taking the time to be with us today.

 

Karen Harned:  Thanks so much for hosting me, Joel.

 

Joel Nolette:  Yeah, our pleasure. Well, just to kick us off, we’re obviously talking about Acheson Hotels v. Laufer and going to be exploring tester standing as well as the -- sort of the -- maybe the bigger issue lurking in the background that arise under Article II and the very interesting amicus brief that you all filed in this case. Just to get us started, if you could, please, set the table. And what’s the statutory and regulatory background in which this case rises under?

 

Karen Harned:  Right. So everybody, I would hope, is familiar with Americans with Disabilities Act, and a lot of focus typically is on Title II, which deals with people with disabilities in the workplace. But this case concerns Title III, and under that statute, every business or place of public accommodation is supposed to ensure that their business is accessible to the disabled. And so, there’s been a lot -- and it needs to be readily achievable, not unduly burdensome. That’s been a lot of where you’ve seen litigation over the years, especially when you’re talking about historic buildings or older buildings because those buildings typically do not have to do anything major until they do any sort of renovation, but any sort of renovation’s going to put them in the category where they’re going to have to meet certain parameters. And so, the bottom line is all disabled persons should be having equal access to public accommodations, just like those of us that are not impaired. And so, that is the backdrop of this particular case.

 

The other issue, I guess I should say, with regards to this one, is there is a regulatory requirement that falls from the statute with regards to places of lodging, which this deals with because that’s -- Acheson Hotels is obviously a hotel. And that is called the reservation rule, and it basically says that any person that’s disabled should have equal access to the ability to make reservations and also to learn what accessibility -- amenities are at that hotel prior to showing up there and finding out that they don’t have what they need for their particular disability. So that rule is also in play here, and it’s called the reservation rule.

 

Joel Nolette:  Fantastic. Thank you so much. So with that in mind, that brings us to the parties in this case, as you already alluded to briefly. Could you tell us a little bit about Ms. Laufer, on the one hand, the plaintiff in the district court proceedings, and then Acheson Hotels, on the other hand?

 

Karen Harned:  Right. So Deborah Laufer is, not surprisingly, a disabled American, and she can’t walk more than a few steps without assistance. She needs to use a wheelchair, cane to move around. She also has limited use of her hands and is visually impaired. And so, she needs special accessible parking, has to use passageways wide enough for her wheelchair, things like that. Slipping requirements are important for her when she’s trying to get in and out of a place.

 

And then, Acheson Hotels operates the Coast Inn Village -- Coast Village Inn and Cottages in a small town on Maine’s southern coast, and it -- it gets reservations both on its website but also through third-party platforms, like Expedia and the others. And so, that -- yeah, that’s that, with regards to who there are. Do you want me to get into the facts of the case?

 

Joel Nolette:  Please, yeah.

 

Karen Harned:  Sure.

 

Joel Nolette:  So we have a Florida resident, a Maine hotel.

 

Karen Harned:  Yes.

 

Joel Nolette:  How did we get here in this case?

 

Karen Harned:  Right. So we’ve -- this case does concern what is called an ADA tester plaintiff, and Ms. Laufer is proudly one of those. A tester plaintiff is someone that really sees it as their job to help enforce the Americans with Disabilities Act, and I apologize because I should have, in the setting of the table, noted that the enforcement of the Americans Disabilities -- Americans with Disabilities Act does not just fall on the Department of Justice. It falls also on individuals. So it has a private right of action, and indeed, this statute, I would say, is primarily -- at least, the Title III; I can’t speak to Title II -- but primarily enforced by individuals, and -- like Ms. Acheson, and so, these tester plaintiffs really look at -- as their job, as their mission to ensure that every business is complying with the ADA.

 

And so, what she did in this case is she’ll go around, and she says that she’s done this. In fact, she’s filed 600 lawsuits under her name over the years, and she will look on the websites and see, “Is it -- is this particular hotel telling me whether or not they have the accessibility -- are they meeting the accessibility requirements I’m going to need? Are they giving me that information that’s required under this reservation rule?” In addition, she’ll look to see if the third-party platforms, if they are also ones that will support booking the certain establishment she wants -- or she says she wants to go, are they meeting those requirements. And so, she literally, as the plaintiff in the -- or I’m sorry -- the petitioner in the case says, is sitting at her home in Florida, looking at all these different websites to see if their ADA compliant, basically.

 

Joel Nolette:  Okay. So she’s doing that. She’s sort of exercising her role as an ADA tester, self-identified and proud to be an ADA tester. And so, she’s sitting at home in Florida, and she gets on the Acheson Hotels website and discovers that it doesn’t have the information — at least, allegedly — it doesn’t have the information that the reservation rule requires. So if you could then pick up the thread and -- so what happens next? She sues in the district court, and things go from there.

 

Karen Harned:  Right. So she sues in the district court, and Acheson Hotels immediately files a motion to dismiss, saying, among other things, that she has no intention of ever going to this facility, this inn. And so, therefore, she does not have a real injury, a concrete injury that would allow for this lawsuit to continue. So it really was a question of standing from the beginning in the district court. And so, the district court -- and it is not in question that she had no intention of going to the -- I’m sorry -- the Village Inn or whatever it’s called. Sorry. I’m so bad. But anyway, Village Inn, yeah, the Coast Village Inn -- that she had no intention of going there. That’s not in question. That’s not in doubt. So that’s, I think, important as we’re looking at this case moving forward, especially to the Supreme Court, eventually.

 

So the district court agreed with Acheson, straightforward, “You’re right. No particularized injury.” They go up to the First Circuit Court of Appeals, and there that court takes a completely different position. Relying on a case called Havens Realty, they say that, yes, this is actually an injury because, basically in the same vein as the Havens case, she was, as a disabled person, injured because she didn’t get the information she should have received. They do -- the First Circuit does really square this up with this case, Havens Realty, which I’m going to go into now, and there’s a real question as to whether or not those facts do pan out as far as being completely analogous.

 

But in Havens Realty, that concerned the Fair Housing Act of 1968, and it concerned a black American who had tried to -- who had gone on multiple occasions to a property, asking do they have any openings for them to rent a place there, and each time, unfortunately, this person was told, “No,” although, then, a white “tester” would come in, ask the same question, and be rented a place. And so, they did find standing there. They did find injury there because the injury in that case was misinformation, right, because when that black American went in to ask for a residence, they lied, and they said, “No, we don’t have anything.” And they knew it was a lie because they proved it up when they had a white tester go in.

 

And so, in this instance, she’s trying to say -- under this reservation rule, Ms. Laufer’s trying to say, under this reservation rule, that it’s the same thing. “We are allowed information on the website as to whether or not there’s -- what the accessibility and accommodations are for whatever place. And also, we’re allowed it on the third-party websites, and if they don’t have it straight up, we’re injured.” But as, I hope, a lot of our listeners have remembered, just two years ago, I think, the Supreme Court, in a case called Transunion, said it was not enough to just have a statutory violation. That’s not your key to the courtroom, right, that you had to have a concrete, particularized injury. And so, just saying, “Hey, I can check this box that this statute is -- somebody violated this statute, even though I wasn’t harmed,” that case that dealt with credit reporting and these people did not have any bad outcomes as a result of some mess ups with their credit reporting, but the statute was violated technically.

 

And so, the Court said, no, that’s not enough. You’re going to have to show that there’s real hurt and real cause of injury here. And so, that is really what is set up in this case is she -- what is her injury, and is it enough to get her Article III standing as a tester plaintiff? Yeah.

 

Joel Nolette:  Great. Yeah, yeah. So yeah, just to recap before we get to the Supreme Court proceedings, where we’re at now, yeah, so the critical issue that’s been percolating, both at the district court and the First Circuit, was the injury-in-fact prong of the standing analysis, which arises for the Article II case-or-controversy requirements, and without meaning this in any sort of pejorative sense, but it’s a gloss on the case-or-controversy requirement. It’s three criteria the Supreme Court has interpreted as consisting of a case or controversy.

 

And you identified two cases, Havens Realty and Transunion, and you mentioned the dates of those cases. I suppose one interesting thing, too, is that Havens Realty comes in the 1980s, which, in a way, precedes the sort of paradigmatic formulation of Article III standing in Lujan v. Defenders of Wildlife, which was a decision in the early ‘90s, where Justice Scalia, for the majority, sort of synthesized all these various threads of jurisprudence that the Supreme Court had developed up to that point in time into these three criteria, the key one, for our purposes, being the injury-in-fact requirement. And then, we have the Transunion case following that, right, which, if I remember correctly, one of the key lines was, “An injury in law is not an injury in fact.

 

Karen Harned:  Correct.

 

Joel Nolette:  And it’s an injury-in-fact requirement, so the Transunion case spoke of the need for downstream consequences of a bare statutory violation. You can’t just have a bare statutory violation. There had to be some real-world effect. So the jurisprudence may be a bit unsettled, for lack of a better word.

 

Karen Harned:  Right.

 

Joel Nolette:  So, okay, so one last sort of table-setting thing before we get to the merits, if you will, of the threshold standing issues before the Supreme Court. There’s been some interesting post certiorari developments and, in particular, with plaintiff’s counsel. Could you tell us a bit about what’s going on there?

 

Karen Harned:  Correct. So actually, one of the attorneys that has represented Laufer in the past, but not in this particular case, has recently been sanctioned by the Maryland Bar Court because they are basically a vexatious litigant. They’ve been bringing, as I mentioned, 600 of these cases, and so, as a result, they are not allowed to do this anymore. And in this space, I should say, that is not the first attorney to be called out. We’ve seen that happen in a number of occasions in California. This case, as a lot of the amicus briefs will indicate -- there -- with regards to the ADA and the private enforcement mechanism that is used there, you have seen a cottage industry that has developed over the decades of attorneys that are literally just doing the box check, have no intention of visiting the business, but as a tester plaintiff or even as whatever -- just as an attorney trying to make money, trying to get settlements, you see them filing these lawsuits.

 

And so, in a number of instances, you have seen courts come back and call out the vexatious litigant and say, “No, you can no longer file any of these cases.” I say, he did not represent her in this instance, though, I guess, her attorney may have some relationship with this person, but her view was it’s still needs to be mooted out because she really didn’t want the distraction of this whole vexatious litigant issue that’s in the background. And that’s not surprising because she wants to be able to continue to do this and is worried that’s not the best backdrop for -- that this Court is -- bad facts, in her mind, would make bad law. Right? She doesn’t want the Court to see how it’s been used, even though, honestly, that is, I think, part of the record now, anyway.

 

Joel Nolette:  Yeah. So right. There’s been a change, as far as midstream, of sorts, right, between the cert brief, the cert stage, with plaintiff’s counsel and then the merits stage. And I believe that she’s now represented by folks at -- actually at Georgetown Law and [inaudible 00:18:08] clinic at Georgetown Law. So they have -- in addition to filing an opposition brief on merits, they have filed a -- they’ve captioned a suggestion of mootness. Can you just tell us a little bit about what happened there?

 

Karen Harned:  Oh, yeah. So -- oh, I apologize. Oh, my gosh, I apologize, Joel. Oh, also -- oh, yes. I apologize. I’m getting this confused with something else. Yes. So the suggestion of mootness is her -- she asked for her case to be dismissed. And so, she says it’s no longer a viable case. But Acheson Hotels has said, look, we need this case decided because of the reasons I just noted, which is this has been going on for a while. We’ve seen a cottage industry develop, and quite frankly, there is a big circuit split on how these cases have been resolved, as to whether or not there is standing in these tester cases.

 

So if they don’t take this case, they’re going to have to take one because really, honestly, the Supreme Court’s the only ones that are going to be able to decide it, so that’s -- that is Acheson’s argument. That -- and so the Supreme Court said, look, we’re not going to moot it right now, but they are going to hear argument -- when they hear arguments of the case on October 4^th, they’re going to discuss it at that time.

 

Joel Nolette:  Yeah. It’s certainly a curious development.

 

Karen Harned:  Yeah.

 

Joel Nolette:  Ordinarily, if -- and Ms. Laufer went ahead and actually dismissed her case in the district court. And ordinarily, of course, mootness goes to federal courts’ Article III jurisdiction. And so, ordinarily, when a case becomes moot, especially if it’s on appeal, the solution is to vacate the decision below and remand with instructions to dismiss or what have you. The curious -- particularly curious thing in this case, in particular, is that, of course, the issue is standing, which is also a jurisdictional question, and courts have discretion that there is no necessary ordering of sort of jurisdictional issues when a court is presented with multiple ones. And so, if the court decides to resolve the case on standing grounds, it doesn’t have to reach mootness and vice versa. So in this instance, the Supreme Court has the discretion, if it wants to adjudicate the standing question, because, at the end of the day, all it’s ruling on is the scope of subject matter jurisdiction over this action.

 

Karen Harned:  Right.

 

Joel Nolette:  Now, there’s one more mootness wrinkle, which comes from the other side, and could be an -- potentially an alternative grounds of decision, if the Court decides not to reach any question. Could you tell us a bit about Acheson Hotels’ mootness argument in this case?

 

Karen Harned:  Correct. Yeah, so then, it -- although they say they want it decided, they also have said that there might be a mootness issue on their side because they took care of the problem. They now have this information on their website. As we’ll see in the arguments, though, it’s still not on all the websites on the third-party platforms, but it is on the Coast Village Inn’s website now.

 

Joel Nolette:  Right. So okay. So with all that on the table, and I feel like the table very well set, and some potential hurdles that could get in the way of what I’ll, maybe inaptly, call the determination on the merits. In reality, of course, the merits here is a standing question and not another true merits question. But so the issue before the Supreme Court now involves Article III standing and particularly the injury-in-fact requirement of Article III standing. As you mentioned, one thing that has -- is now clearly established is that Ms. Laufer has no intention of visiting the Coast Village Inn, so she is claiming injury, more or less, purely in her capacity as an ADA tester.

 

Karen Harned:  Right.

 

Joel Nolette:  So could you -- maybe it makes sense, although, of course, Acheson Hotels is the petitioner, and so, they -- they’re challenging the First Circuit’s determination that Ms. Laufer had standing. Maybe, if you could, sketch out for us Ms. Laufer’s position as to why she has standing and then explain Acheson Hotels’ counterarguments to her case for standing.

 

Karen Harned:  Right. Well, she says that she has standing, and honestly, one of her first arguments isn’t really as prominent, if at all, in the Supreme Court, but originally, she said with the reservation rule, that’s a straight up -- she’s required to get -- be able to have this information, and the information is whether or not it’s accessible. That box was not checked when she went on the website. So that’s one injury.

 

She also argues that it’s particularized to her because she’s disabled. She’s a member of the disabled community and, even though she wasn’t going to visit the inn, because she is a disabled person, the law is for disabled people. It still is particularized to her. And she also argues that there’s going to be a stigmatism for her every time she goes to this website and sees that they are not honoring her and not treating her equally like they would treat other people that are not disabled. And so, all of that is meant to, of course, prove that she’s feeling a particularized, concrete injury.

 

So Acheson really says, no, that is not how this works, that ADA is not a backward-looking statute. It’s forward looking, and you have to look at what’s actually going to happen here and what’s actually going to happen to the person. And the fact that she didn’t receive information on the accessibility of the Acheson -- of the hotel is irrelevant, right, because she had no intention of going there. So there can’t be a harm if you’re [inaudible 00:24:30] -- it was non useful information. It was information that was not ever going to be useful to her, so that doesn’t work. So the informational injury does not work to her. And it’s not particularized because she’s not personally harmed by it. She, again, has said, and it’s on record, that she wasn’t going to attend -- or go there, so she was not going to be harmed in that manner.

 

Let’s see. She also -- they do say -- I think they’re making the case that Transunion would govern here over Havens Realty, but they say even if you’re going to put that aside and go with Havens Realty, this is different because that -- Havens is distinguishable because the plaintiff in that case relied on a federal statute that personally entitled that person to information and granted her a private cause of action to vindicate that right. But Laufer’s, it’s a federal regulation. It doesn’t entitle her to information on a federal statute that does not -- it -- personally entitled her to information on a federal statute that does not grant her a cause of action to vindicate that right, that it was just -- that’s a -- so bottom line is with regards to -- and also on the emotional side, that person was -- you can make the argument probably for stigmatism more in the Havens than you could under Ms. Laufer -- or Ms. -- yeah, Laufer’s argument because that person knew they were being lied to and knew -- in this instance, it was a one-and-done, and it really was never going to matter to her because she was never going to go.

 

That’s really, I think, the bottom line of Acheson’s point here, and it’s really the point on the tester plaintiffs, generally, is they’re just out to -- they’re never going to -- they’re out to get what Transunion says you can’t, like a violation of law but not really of anything that’s personally going to injure them, impact them in a meaningful way. And I think that’s just the bottom line of what they would argue there. They also do note that there is a question as to -- well, I guess that’s -- yeah, I’ll leave it at that.

 

Joel Nolette:  Sure. And I suppose, complicating matters somewhat, it would be really clean to -- if Havens Realty was decided in the ‘80s and Lujan came in the early ‘90s and the law has gone in a different direction, it would be, maybe, a bit more straightforward to argue that Havens Realty is sort of moribund and should just be expressly overruled but has been de facto abandoned.

 

Karen Harned:  Right.

 

Joel Nolette:  Of course, complicating things, as Ms. Laufer points out, is that, in Transunion, the Transunion court cited to Havens Realty as a -- sort of an exemplary case where Congress has the ability to sort of elevate de facto harms into legally cognizable claims in federal court.

 

Karen Harned:  Right.

 

Joel Nolette:  They can say, okay, even if you couldn’t ordinarily sue for discrimination of common law; although, you could, in some instances. Parties get into that in their merits briefs. But even if you couldn’t, Congress is certainly free to make discrimination actionable by statute. And so, I suppose it’d be fair to say that there’s a bit of a tension, where Transunion is simultaneously citing to the -- Havens Realty and the principle that comes from Havens Realty while also, certainly as Acheson Hotels is arguing, seems to really be undercutting, at least, some of what Havens Realty has been cited for with respect to what is a sufficient injury in fact.

 

Karen Harned:  Right. And I should note, as somebody’s that been dealing with this for a number of years because, as you noted, in my background, I’ve represented small businesses, and honestly, they have been some of the biggest targets. In fact, this Coastal Village Inn, I’m suspecting, is a small business. They have been targeted a lot by these lawsuits, over the years by these tester plaintiffs, and when the Transunion case came out -- in fact, NFIB’s Legal Center, which I ran -- oh, sorry. Oh, my. Sorry. Oh, my goodness. Okay. Apologize for that. Anyway, when Transunion -- we -- at NFIB, we filed a brief on this whole issue because -- with these ADA tester suits in mind. And so, when that decision issued, we really saw it as, “Oh, my. This is going to really be a good thing when it comes to these ADA tester suits.” So it’s so funny that is now all coming to the fore now.

 

Joel Nolette:  Yeah, yeah, for sure. So okay. So we’ve -- I feel like we’ve sort of surveyed the Article III landscape and the core question before the Court. And it really is, as you’ve said, it’s going to be this question of stigmatic injury, that is -- Ms. Laufer and her opposition merits brief before the Supreme Court has really leaned heavily on having a stigmatic injury in the same vein as the -- that tester plaintiff in Havens Realty who was discriminated against by being lied to about availability housing based on her race. So that’s all under Article III, and that is the central question that is going to be before the Court, if it does, in fact, get to the standing question.

 

That said, you all had filed a very interesting amicus brief, which is looking at these issues really on a different axis, if I could put it that way, where -- and certainly a thread of Article III jurisprudence, one of the principles that the Court has leaned on when it has -- in glossing the case-or-controversy requirement and articulating these three criteria of standing, including injury in fact, is separation of powers. There is a concern that if unharmed plaintiffs are just given the right to get into court simply by virtue of the existence of a statutory violation, well, that would interfere with the executive branch’s ability to take care that the law is faithfully executed, which Article II, of course, commits to the executive branch. And your amicus brief explores this. Could you please go into detail and tell us about your arguments in the amicus brief?

 

Karen Harned:  Correct. So I am, as -- one of my positions is I’m Executive Director of the -- of what’s called the Center for Constitutional Responsibility, and one of our real concerns is separation of powers and separation of powers when it comes to enforcement and enforcement with regards to these new -- more and more, it seems like there are statutorily creative private rights of action for us as citizens to basically do the government’s job and enforce the statutes. ADA is a prime example of this. Clean Water Act and Clean Air Act actually also have those private rights of action that people have used over the years to enforce those laws.

 

And so, our argument is that we think there is a real constitutional problem with these, that this is a separation of powers issue because whether it’s in this case with her standing or -- under Article III, but even also under Article II, you’re now losing -- the Constitution requires that the executive is the one that is supposed to enforce our nation’s laws, full stop. And that -- the executive is the president and his legal officers. It is -- and in the states, the governor and their legal officers. And by letting the citizens do it, you’re losing a lot of things. You’re losing political accountability. You’re losing -- because just anybody can go and sue to enforce, and nobody really has a way of stopping that. Right? If they don’t like what’s happening, you can vote somebody out, but you can’t vote away a lawsuit.

 

And similarly -- or I don’t know if it’s similarly, but another argument is that it’s just an unconstitutional delegation, that the executive is the one that should be enforcing our nation’s laws, and it should not be up to the citizens. And so, that is the case that we make in that brief because there has been some activity, and there’s been some thoughts from the Court we’ve seen as recently as just last year in -- or last term in the Polansky decision where there does seem to be some openness to looking at whether or not some of these private rights of action — in that case it dealt with the Medicare fraud statutes that allow for relators to go in and sue on behalf of the government for violations — whether or not that’s -- meets the separation of powers principles by delegating out that enforcement authority to private citizens. So that is the case we make in our brief, and it'll be interesting to see if the Court bites on that one. Obviously, I hope they do and at least reference it some more. But we will see.

 

Joel Nolette:  Yeah, I would say in the merits briefing -- and I should have mentioned previously, but the government also has filed an amicus brief, and it’s actually seeking some argument time. Given — kind of to the point of your amicus brief — the attorney general’s very prominent role in enforcing the ADA, the attorney general has been delegated authority to promulgate regulations to implement the ADA, and it brings enforcement actions. But yeah, of course, that is, as the government points out, that is significantly complemented through private litigants and private lawsuits for under the ADA. But yeah, so the government has submitted a brief, arguing for -- basically agreeing with Acheson Hotels that there’s no -- the Court should find no standing here but asking for a much narrower holding and disagreeing with some of Acheson Hotels more broader arguments. That would certainly change the law a lot more or, at least, develop the law a lot more.  And I think the government currently -- clearly, based on its brief, would like to see.

 

One thing the government does point out in its brief is that this -- they do, in fact, respond to this, let me just put it that way, and they drop a footnote, sort of flagging the Article II concerns because it’s raised in Acheson Hotels’ merits brief, and they argue that the separation of powers considerations should be taken into account in the standing analysis. So well, all that’s fantastic, and thank you so much, Karen, for that -- all that information. Just briefly on this, to note and to invite your thoughts and comments before we turn to questions, but the doctrine of standing has had an interesting life as of late where, I think, it's fair to say that some of these -- some of the Supreme Court decisions have created strange bedfellows.

 

I can think of the Transunion case, which Justice Kavanaugh, if I’m recalling correctly, wrote the opinion for the Court and was joined by four other justices, and Justice Thomas wrote the dissent, and he was joined by, I suppose, what is typically considered the liberal wing, if you will, whereas Justice Kavanaugh was joined by the so-called conservative wing of the Court. And Justice Thomas has taken a position as the current standing doctrine is unoriginalist, and it has gotten away from what the case-or-controversy requirement actually requires within the original public meaning of Article III. All that said, you mentioned the Polansky case, and it was Justice Thomas in dissent in the Polansky case who -- that involved the qui tam provisions of the False Claims Act, or at least, his dissent did. And he sort of indicated that he believed the qui tam provision of the False Claim Acts violate Article II for the very reasonings that you’re sketching out, that it deputizes to private citizens the ability to enforce the law when that is kind of presumptively and exclusively the executive branch’s prerogative. And I believe Justice Kavanaugh and Justice Barrett -- or Justice --

 

Karen Harned:  They also suggested that it was ripe for review, so that is why -- another reason why we’re hopeful that our brief will resonate on that grounds in this particular case. And yes, you’re right. I’m sorry. I forgot to mention that was a critical part of the plaintiff’s -- or I’m sorry -- petitioner’s briefing here, and one of the things they said, which I did not note in the reasons why this is a problem, having the private plaintiffs, is you don’t get prosecutorial discretion. It’s just catch as catch can. It’s everybody’s out for themselves, and that’s really also not very helpful when you’re trying to enforce a law. It doesn’t get predictability, for one, as far -- and there are just -- again, accountability and other issues surround that.

 

Joel Nolette:  Yeah. Yeah, so this is -- it’s a very interesting issue, and I’ll just also add, I feel like Judge Newsom. Of course, a number of folks have been discussing this and exploring this, but I feel like Judge Newsom on the Eleventh Circuit has played an outsized role in, actually in a 2019 decision, the Sierra case, I believe, and then, more recently, in a case involving Ms. Laufer. I think it was Laufer v. Arpan LLC. That was in the Eleventh Circuit, which has since been mooted, but Judge Newsom wrote two concurring opinions that have really sketched out, certainly, his thinking on the Article II problems with deputizing private litigants to sort of enforce the law in the way that testers, more or less, do.

 

Karen Harned:  Right. Absolutely. No, it’s good. And I’m glad, just as a -- from a policy perspective, too, again, as somebody that’s a small business advocate, that this is finally coming to the fore because I really do think there needs to be some parameters put on this. I’m obviously showing my bias, but it really has become -- you just see it more and more where different groups are able to use a statute to make a cottage industry out of enforcement. And I’m not sure that’s [inaudible 00:39:53] -- I’m pretty sure that’s not what our Founders had in mind when they created our justice system.

 

Joel Nolette:  Great. Well, thank you, again, so much for sharing your thoughts and insights, and it’s a very interesting angle that seems to be an emerging issue that you all are flushing out in your amicus brief in this case. Before we turn to questions, I’d like to give you an opportunity for any final thoughts about the case or anything that hasn’t been said quite yet.

 

Karen Harned:  I think we’ve covered pretty much most of it. I would just say I really am hopeful that the Court doesn’t pick this on mootness because I really -- they are going to get -- they’re going to have to answer this question. This is a very live issue. I can’t remember how many different courts have already ruled on this, but the splits are significant. It’s at least three circuits, I think. And so, it’s -- they’re going to have to do it sometime, so since they’ve taken the case, I’m hopeful they will, in this instance, go ahead and say what the law is here on tester plaintiffs.

 

Joel Nolette:  Yeah. Yeah, time will certainly tell. That’s a great segue, in fact. A number of folks have asked questions, just about this -- the curiosity of mootness being an issue in a case involving standing where the Court -- again, the Court has discretion to decide which of those subject-matter jurisdictional doctrines it decides to address. But a few folks have asked, more or less, isn’t it -- wouldn’t it be strange for the Court to essentially, again, pass on the merits of the standing question, if the case is, in fact, moot, so -- which you’ve, more or less, just answered, but what -- I don’t want to put you on the spot to make a prediction, but why would the Court just not kick the case on [inaudible 00:42:13] grounds?

 

Karen Harned:  Oh, on standing grounds?

 

Joel Nolette:  On mootness grounds, and that --

 

[CROSSTALK] 

 

Karen Harned:  On mootness grounds. Sorry. Yeah. No, well, yeah, I think there are a lot of reasons why they would, and so, maybe they would make new mootness doctrine through this or say -- or I don’t know or just -- I don’t know. What’s the word? Bolster what’s already out there when it comes to mootness.

 

But I guess what we have seen recently is they are not shy to kind of color outside the lines on some of this stuff. Just last year, the West Virginia v. EPA case, that -- they issued a ruling on a rule that wasn’t even in effect. Right? And many of us liked that outcome, but that was an interesting posture there. And so, this wouldn’t be the first time that they’ve just -- this ended up being the vehicle, and they’re going to go ahead and bite the bullet.

 

Like I said, on this one, I actually think there are grounds for them to -- justifiable grounds for them to go ahead and just decide it because if not this case, it’s going to be another one. They’ve already accepted it. They’ve already done all the reading on it. The arguments on the tester issue are fully presented, I would argue. And so, why not just go ahead and do it. But it is very interesting that it -- that when they were asked to moot it out, they declined to do so, and so, that actually signals to me that they want to go ahead and just get this resolved.

 

Joel Nolette:  Yeah, the good news is that we -- well, we might have long to wait, I suppose, but at least, we’ll have some inclinations. Oral argument is scheduled for October 4^th, so there should at least be some more tea leaves to start reading beyond the one that you’ve already mentioned, which is them deciding to take mootness up with the merits of the standing issue as opposed to just resolving the case on that grounds.

 

We have one question in the queue here that -- maybe if you just want to -- if I can invite you to riff for a little bit, but there are certainly many private causes of action in the law, both state and federal, and of course, a number of state governments follow the federal separation of powers principles. They have a tripartite scheme, and the executive branch is tasked with law enforcement responsibility. What would -- if the Court does, whether in this case or the next case with this as maybe a jumping-off point -- what are some ramifications that you could see from the Court? Let’s say it develops Article II jurisprudence along the lines that your amicus brief argues for. What would be some of the ramifications and maybe some of the limiting principles? Where would plaintiffs not be affected versus where would the plaintiffs currently be affected if the Court certainly conceptualized things as Article II rather than Article III questions?

 

Karen Harned:  Right. Well, I definitely think -- look, if they went as far as we would suggest, then you don’t -- you have a nondelegation problem, and you’re not going to be able -- for example, citizen suits that are filed under the Clean Water Act or the Clean Air Act would no longer be able to go forward. Under the Americans with Disabilities Act, I think if -- I think the issue is if you’re harmed, right -- I don’t think that this would knock out every ADA lawsuit, but I do think it would knock out lawsuits where somebody is not harmed, as the test plaintiff in this instance. And so, depending on how they framed it, I think the issue really should be the only time a private citizen should have the ability to go into court — and this is Karen’s view of the world — is if they do have a particularized injury that is unique to them and is concrete, just as in -- the Transunion case says, and -- that no longer will the government -- it isn’t surprising, really, that the federal government was cheering on ADA lawsuits because that -- I’ve even heard that from state attorneys generals when, for example, is data privacy has been considered and whether or not there be a private right of action there. Oh, well, we need the enforcement help.

 

Well, I think the bottom line is if private rights of action as -- for the public welfare, the public good, just to -- and help the government enforce the statute, if that went away, I just think we’d have more accountability. We’d see -- I don’t know -- you would see less litigation as a result, but I think that’s a good thing because I think, more and more, as Congress is enacting, you are seeing litigation -- regulation through the courts through these private rights of action. You are seeing the citizens taking it up and doing what Congress doesn’t. And instead, what needs to happen is it needs to go back, and Congress needs to enforce. Congress needs to make the laws that -- or Congress needs to make the laws. The executive needs to enforce them, and in that way, we have true political accountability.

 

So I do think you would have a lot less litigation, but I think that would be a good thing because it'd be more accountable. Priorities would have to be followed when it came to enforcement because right now, honestly, I feel like with a lot of these statutes, it’s the wild, wild west, and they’re really used more to shake down a lot of people than to actually get good done. I’m not saying every instance of this kind of litigation is bad, but I would say most of it is because, from my experience, especially in the ADA space with small business owners, it’s all about getting them to settle. They don’t want to have a lawsuit. They just want to get the payout. And that is sad.

 

And in California, on the ADA side too -- sorry, but I’ve lived this for a while -- you now see a lot of -- minority business, in particular, are -- have these Title III lawsuits brought against them because the attorneys think it’s going to be an easier chance for them to get a win. So I don’t know. Bottom line, I just think it will make a more constitutional structure that the Founders envisioned if we just have the executives enforcing the laws. We all, as the electors, can say, “You need to do more on Clean Water Act. You need to do more on Clean Air Act. You need to do more on ADA.” We don’t need to be doing it ourselves and just going out after our personal vendettas. I don’t think -- I also personally think that just makes society a lot less civil, and I don’t think we need any more of that. But that’s, basically, my take on it.

 

Joel Nolette:  Got it. So would it be fair to say, just to recap again -- sounds like, if I can put it the way you did, in Karen’s view of world, folks that would be unaffected would be private litigants with private injuries. Somebody who had -- they themselves were, let’s just take the ADA, they themselves were prevented from having full enjoyment of a place of public accommodation in the same way that a nondisabled person would be. They would be unaffected. Where things would start being affected is those who are trying to bring lawsuits where it’s, yeah, the benefit may be strictly -- accrues to the public or primarily accrues to the public, and I suppose you might have some line drawing problems to hash out, if the jurisprudence were to go this way. But it’s somebody suing because the Mississippi River needs to be cleaned up, but they live in California, and they never go to the Mississippi River. And they just are worried about pollution in the Mississippi River. It would be that sort of lawsuit that becomes problematic under an Article II framework, in Karen’s view of the world.

 

Karen Harned:  Correct. Yeah, again, if you have -- if it’s a particularized injury that is actually happening to you, that’s one thing. But it’s this roving attorney general where we’re all deputized to run away and enforce the laws. There are, sadly, more and more of those lawsuits, and I think they’re problematic and constitutionally suspect, and I would love to see the Supreme Court weigh in on that.

 

Joel Nolette:  Fantastic. Well, very good. Well, Karen, any parting thoughts before we wrap up. I do see our time is running short here.

 

Karen Harned:  Yeah. No, this has been great. It’s been great with you, Joel, and thank you for your wonderful observations. And I -- it’ll just -- this is an interesting case. It’ll be interesting to see if we get a real quick, okay, it’s bye, or if we get an answer to the question here on standing. So only time will tell.

 

Joel Nolette:  That’s right. Well, Karen Harned, again, thank you so much for taking the time to lend your expertise and shed some insight on this interesting case, a fascinating Article III case with Article II kind of looming and, I dare say, looming large in the background. So again, oral argument will be October 4^th, and then, we’ll see. Sometime between then and late June, early July, we should have some, hopefully, some answers on the direction which the law’s going to go here.  All right, so with that --

 

Chayila Kleist:  With that, I’ll wrap it up. Thank you both so much. Really appreciate it and you joining us today to share your time and expertise. Thank you also to our audience for joining and participating. We welcome listener feedback at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events, like another webinar happening in just a half hour, I think, which will be a case preview of Harrington v. Purdue Pharma. With that, thank you all for joining us today. We are adjourned.

 

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