Supreme Court Examines Standing In “Test” Cases Under The Americans With Disabilities Act

In Acheson Hotels, LLC v. Laufer, the Court is considering whether a self-appointed Americans with Disabilities Act (ADA) “tester” has 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. The ADA requires places of public accommodation to make “reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford services or accommodations to individuals with disabilities.” Consequently, hotel owners and operators must identify and describe accessibility features when they offer means of room reservation, providing enough detail for an individual with disabilities to independently determine whether an accommodation meets their needs.

Deborah Laufer, who believes that the Attorney General has not sufficiently exercised authority to investigate alleged violations, filed over 600 federal lawsuits against hotel owners and operators. She alleged that their websites lacked sufficient clarity on whether the hotels are accessible to persons with disabilities, even though she had not stayed, and expressed no intention to stay, at any of the hotels. She filed these suits as a self-appointed ADA “tester” and sought pre-enforcement injunctive and declaratory relief, as well as awards of attorney’s fees.

The district court dismissed the suit for lack of Article III standing, reasoning that Laufer was not injured by the lack of information on the website of a hotel she never planned to visit. But the First Circuit reversed.  It concluded that the denial of accessibility information constituted an actionable Article III injury. According to the First Circuit, her feelings of frustration, humiliation, and second-class citizenship were “downstream consequences” and “adverse effects” of the informational injury she experienced.

This case presents the Court with an opportunity to address a pressing issue for the bar: the proliferation of pre-enforcement challenges in federal court and the future of Article III standing.

The Court has increasingly demonstrated an openness to deciding weighty issues arising from litigation over the threat of injury from the potential enforcement of a state or federal law. The Court’s opinion last term in 303 Creative v. Elenis is among the most recent examples. Yet many of the Court’s most seminal cases also arose from pre-enforcement challenges and “test” cases, e.g., Epperson v. Arkansas, Doe v. Bolton, and NAACP v. Button – where, arguably, determining the constitutionality of the law trumped the exactitude of a concrete injury-in-fact.

That said, this case is heavy with the weight of problematic pre-enforcement actions. After the First Circuit reinstated her case, in an unlikely move for a victor, Laufer supported Acheson’s petition for Supreme Court review to resolve the standing issue omnipresent in these types of challenges. Later, Laufer changed course. She voluntarily dismissed her action in the district court and then asked the Supreme Court to dismiss this case. The Court declined and took up the mootness issue at oral argument.

During oral argument, Justices Thomas, Jackson, Alito, Kagan, and Sotomayor questioned whether the case should be dismissed as moot with a view to deciding the standing issue in a future “live” case. In the words of Justice Kagan, this case is “dead, dead, dead in all the ways that something can be dead” – a poor vehicle for deciding a critical standing issue.

Chief Justice Roberts voiced the opposite concern: dismissing the case as moot and not reaching the standing question may encourage a litigation strategy described as filing successive rounds of lawsuits with the intent to settle most, abandon those that may result in unfavorable rulings, and then file another round of actions with similar jurisdictional issues. Justice Barrett seemed to be of a similar mind, suggesting that the Court may be in the best position to stop successive litigation by addressing the recurring issue. Justice Kavanaugh suggested a middle ground, ruling on mootness and leaving the merits for a future case. 

When the Justices turned to the merits, they focused on the degree to which intent was dispositive of standing. Justice Sotomayor, for example, raised how, historically, people have put themselves into discriminatory situations in order to challenge policy. However, the Chief Justice and Justice Kagan were skeptical of standing here given Laufer’s declarations that she had no intent to stay at the hotel, distinguishing this case from other cases involving “actual discrimination” against a tester. The Chief Justice struggled to support standing for an informational injury based on information Laufer does not need because she does not intend to use it.

The case was argued on October 4, 2023. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information about this alert, please contact the authors of this alert, Chantel Febus, James Azadian, David Schenck, Christopher Sakauye, McKenna Crisp, Monika Harris, and Puja Valera.