Supreme Court to hear case on ADA ‘tester’ of hotels

The U.S. Supreme Court has agreed to hear a case to decide whether a self-appointed “tester” of the Americans with Disabilities Act (ADA) can sue hotels over an alleged breach of the civil rights law.

This will be the first time the Supreme Court hears an ADA Title III case in over 18 years, potentially altering the litigation landscape.

In the Acheson Hotels, LLC v. Laufer case, Acheson Hotels asked, “Does a self-appointed Americans with Disabilities Act ‘tester’ have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?”

Acheson Hotels owns and operates Coast Village Inn and Cottages in Wells, Maine. The company was sued by disability rights campaigner Deborah Laufer, who has filed hundreds of federal lawsuits claiming that hotels do not disclose accessibility information on their websites. Laufer, who is visually impaired and uses a cane or wheelchair, sued Acheson in 2020, claiming that the hotel website failed to provide relevant information about accommodations for people with disabilities, such as identifying accessible rooms, as mandated under the ADA.

In the court papers, Acheson’s lawyers claimed that Laufer had filed over 600 lawsuits since 2018 targeting small hotels and bed and breakfasts and that the cost of litigating a case might put defendants into bankruptcy.

“A cottage industry has arisen in which uninjured plaintiffs lob ADA lawsuits of questionable merit while using the threat of attorney’s fees to extract settlement payments,” Acheson’s lawyers said.

Laufer’s lawyers claimed that the language of the ADA is meant for any disabled person and is, therefore, subject to discrimination on that basis to sue if an entity has violated the law.

Hotels usually don’t with ADA without being given notice, according to Laufer’s lawyers, who added that self-appointed “testers” like Laufer regularly seek to enforce since the law does not impose damages.

Reacting to the case, Laura Lee Blake, president & CEO of AAHOA, wrote on LinkedIn that ADA “tester” cases have more than tripled since 2013 and now amount to over 10,000 annual filings.

While supporting ADA’s intention and the right of individuals with disabilities to use properties, Blake said AAHOA members were “against nuisance lawsuits that enrich attorneys who use litigation or threats to extract settlement payments.”

“As small businesses, our hotels can’t afford to counter drive-by lawsuits by self-appointed enforcers — instead, that money would be better spent on improving our properties to make them more accessible,” Blake wrote.

Welcoming the Supreme Court’s decision to hear the case, the American Hotel and Lodging Association (AHLA) said Acheson Hotels v. Laufer was “all about frivolous lawsuits” by litigants “alleging harm by hotels they have no intention of ever visiting.”

“The justices have a chance to put a stop to this abuse of our legal system, and we are hopeful they will make the right call. A favorable decision by the Supreme Court will limit litigation to only those cases with true merit and provide peace of mind to hoteliers, who now live in constant fear of drive-by and click-by lawsuits from serial ‘tester’ litigants seeking to make a quick buck off hardworking small business owners,” said AHLA President & CEO Chip Rogers.

The Supreme Court’s action comes after the AHLA, the Restaurant Law Center, the National Federation of Independent Business Small Legal Center and five AHLA partner state associations filed an amicus brief in support of Acheson Hotels.

“Circuit courts are squarely divided on whether tester litigants who have merely visited a hotel’s website have standing to sue under the Americans with Disabilities Act. Until the Supreme Court reviews the case, the hotel and lodging industry is negatively impacted by the lack of clarity presented by the circuit split,” AHLA said.

A district court previously dismissed Laufer’s suit, ruling that she was not injured because she had no intention of visiting the hotel. The decision was later overturned by the U.S. Court of Appeals for the First Circuit, which stated that “Laufer’s feelings of frustration, humiliation and second-class citizenry” were “downstream consequences and adverse effects of the informational injury she experienced.”