Can an individual who proclaims oneself as an Americans with Disabilities Act “tester” and has no intention to visit a place of public accommodation legally challenge that place of accommodation for failing to provide information on disability accessibility?
This case asks the Supreme Court to decide on the Article III standing question where a self-appointed Americans with Disabilities Act (“ADA”) “tester” challenges a hotel reservation website’s failure to disclose information about disability accessibility. Petitioner Acheson Hotels, LLC argues that Respondent Deborah Laufer lacks standing because she failed to assert any concrete, stigmatic, or emotional injury resulting from the missing accessibility information. In opposition, Laufer contends that Acheson’s discrimination against disabled people is the exact type of harm Congress intended to prevent by enacting the ADA. While Acheson further asserts that the case is moot because the website now complies with the ADA regulations, Laufer counters that she suffers continuing injury from third-party websites. The outcome of this case will affect the balance between protecting small businesses from excessive litigation and ensuring tester-plaintiffs’ role in effectively enforcing the ADA regulations.
Questions as Framed for the Court by the Parties
Whether a self-appointed Americans with Disabilities Act “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.
Respondent Deborah Laufer is disabled within the meaning of the Americans with Disabilities Act (“ADA”). Laufer v. Acheson Hotels, LLC. at 264. She relies on a wheelchair or cane to move around and has visual impairment. Id. at 263. Her disabilities require accommodations such as special accessible parking, wheelchair-friendly passageways, lowered surfaces, and bathroom grab bars. Id. When Laufer visited the website of The Coast Village Inn, a public accommodation in Maine that Petitioner Acheson Hotels, LLC (“Acheson”) operates, she discovered that the website lacked sufficient details about the accessibility of the Inn’s rooms and facilities. Id. at 263–64. Thirteen other third-party websites also failed to provide such information. Id. at 264.
Laufer filed a claim against Acheson in the District of Maine, alleging that Acheson discriminated against her in violation of the ADA and sought declaratory and injunctive relief as well as attorney’s fees and costs. Id. at 265. The ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, . . . or accommodation by any person who owns . . . or operates a place of public accommodation.” Id. at 264. Under the ADA, a regulation regarding hotel reservations (“the Reservation Rule”) requires a “public accommodation operating a place of lodging” to “identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail.” Id. Such information should allow individuals with disabilities to evaluate independently whether the public accommodation meets their accessibility requirements. Id.
Laufer declared herself as an ADA “tester” and tested ADA compliance of numerous hotel-booking websites across the country. Id. at 265. Her monitoring led her to file hundreds of ADA lawsuits. Id. Pointing to these suits, Acheson contended that Laufer had “no real intention” of making a reservation at Acheson’s Inn and thus moved to dismiss. Id. In opposition, Laufer amended her complaint by providing concrete plans to visit Maine. Id. The district court dismissed the case due to lack of Article III standing. Id.
Laufer appealed to the United States Court of Appeals for the First Circuit. Id. The court reversed the district court’s decision and held that Laufer has Article III standing. Id. at 278–79. The court held that Laufer’s claim regarding Acheson’s failure to provide accessibility information in compliance with the regulation is plausible enough to confer jurisdiction. Id. at 267. The court then held that denying accessibility information can be an actionable Article III injury, regardless of the plaintiff’s intention to “use the information for anything but a lawsuit.” Id. at 271. The court further decided that the informational injury resulted in Laufer’s “feelings of frustration, humiliation, and second-class citizenry.” Id. at 275. With this decision, the court took one side of a circuit split—the First, Fourth, and Eleventh Circuits upheld Article III standing in cases sharing similar facts with Laufer, while the Second, Fifth, and Tenth circuits reached the opposite conclusion. Id. at 270–71. The court also held that Laufer had standing for injunctive relief, determining her “plans to revisit the websites” constituted a likely future injury. Id. at 277. Acheson appealed the First Circuit’s decision, and the United States Supreme Court granted certiorari on March 27, 2023. Brief for Petitioner, Acheson Hotels, LLC at 1.
STANDING BASED ON INFORMATIONAL INJURY
Acheson argues that Laufer cannot establish standing based on her alleged informational injury because she did not suffer concrete injury when she experienced no adverse consequences for failing to obtain the accessibility information. Brief for Petitioner at 16. Acheson refers to the holding in TransUnion LLC v. Ramirez and compares Lauer to the plaintiffs in TransUnion. Id. at 17. In TransUnion, the U.S. Supreme Court held that the plaintiffs lacked standing because they failed to identify adverse effects they suffered due to the defendant’s omission of information, violating the Fair Credit Reporting Act. Id. Acheson maintains that, like the plaintiffs in TransUnion, Laufer suffered no adverse effects by not receiving the information regarding Coast Village’s accessibility information when she had no plans to use Coast Village’s accessible features. Id. at 18. Acheson asserts that the Reservation Rule requiring hotels to disclose accessibility information is not an end but a means to make hotels accessible to people with disabilities who are planning to reserve rooms. Id. at 20. Thus, Acheson argues that Laufer cannot establish standing based on her right to information without alleging any impairment to her concrete interest in accessing hotel facilities. Id. at 20–21.
Acheson also notes that Laufer’s alleged informational injury is not a particularized injury needed to establish standing. Id. at 22. According to Acheson, the Supreme Court has held that a plaintiff must show that the plaintiff suffered a personalized injury to establish standing. Id. Asserting that the similarly situated people suffered the injury is insufficient. Id. Acheson contends that every disabled person in the country lacks access to Coast Village’s accessibility information, so Laufer must differentiate her injury from the impediment other disabled people face to establish standing. Id. at 23–24. Acheson asserts that Laufer cannot sufficiently differentiate herself by merely visiting a website because the general public can visit websites without intending to benefit from the information they provide. Id. at 24–25.
Acheson contends that Havens Realty Corp. v. Coleman does not support Laufer’s position. Id. at 26–27. In Havens Realty, the Supreme Court upheld the tester plaintiffs’ standing in alleging the defendant’s violation of the Fair Housing Act even though the plaintiff did not intend to rent the apartment they accused of such violation. Id. at 26–27. Acheson points out that, unlike plaintiffs in Havens Realty who invoked a statute that creates an injury-at-law, Laufer merely invokes an executive regulation, the Reservation Rule, which does not create an individual right to information and a private cause of action. Id. at 28–30.
Laufer counters that the deprivation of accessibility information is a concrete injury because it denied her equal treatment, so she need not prove adverse effects suffered by the deprivation to assert informational injury. Brief for Respondent, Deborah Laufer at 34-36. Laufer contends that the Supreme Court has held that Congress may stipulate legally cognizable injuries that exist in the real world but were previously unactionable. Id. at 36-37. Laufer also argues that the Supreme Court has recognized discrimination as a real-world injury made legally cognizable under anti-discrimination statutes, and courts must grant a plaintiff a cause of action based on the experience of discrimination prohibited by statutory provisions. Id. In addition, Laufer asserts that Coast Village discriminated against her by not complying with the required disclosure of accessibility information, which obstructed her full enjoyment of the inn’s reservation services and violated her right to be integrated into the public sphere. Id. at 38.
Laufer alleges that she can establish standing without intending to stay at the Coast Village, based on the language of the statutes giving a cause of action to any person who suffers discrimination because of one’s disability. Id. at 26. Laufer claims that Havens Realty supports her position that she has standing because, like the Fair Housing Act that expressly gave “any person” subject to discrimination prohibited by the statute the right to sue regardless of one’s motive, 42 U.S.C. Sections 12182(a) and 12188(a)(1) apply to “any person” denied access to services due to one’s disability regardless of one’s intent in accessing the services. Id. at 23-25.
Laufer also counters that she suffered a particularized injury when she personally experienced the informational barrier violating the Reservation Rule that prevented her from enjoying the reservation service as fully as non-disabled people would. Id. at 39. Laufer asserts that the Supreme Court and other courts have recognized a statutory right to publicly disclosed information. Id. at 20–21. Laufer argues that she suffered the exact harm the ADA and its regulations intend to prevent: disabled people’s unequal ability “to fully participate in all aspects of society” and to access public accommodations. Id. at 36. Laufer further contends that history and tradition have recognized that public accommodations’ discriminatory denial of services creates concrete injury. Id. at 41. Laufer maintains that the common-law cause of action has recognized as actionable the dignitary harms plaintiffs experienced due to innkeepers’ discriminatory treatment, even though the plaintiffs did not intend to book a room. Id. at 42–43.
STANDING BASED ON STIGMATIC INJURY AND EMOTIONAL INJURY
Acheson argues that Laufer did not experience discriminatory treatment that inflicted stigmatic injury on her. Brief for Petitioner at 38. Acheson asserts that to allege stigmatic injury sufficient to establish standing a plaintiff must have suffered stigmatic injury directly resulting from being denied equal treatment. Id. at 41. Although Acheson acknowledges that failing to accommodate disabled people’s needs in accessing hotels constitutes discrimination, it maintains that Coast Village did not discriminate against Laufer by denying her access to its facilities when she never intended to visit the hotel. Id. at 40. Moreover, Acheson argues that Laufer failed to allege that she will continue to suffer from the frustration and humiliation she experienced on her first visit to the website. Id. at 44–45. Acheson contends that Laufer’s alleged emotional injury is not the type of harm traditionally actionable in American courts, and her claim of emotional injury has a weak support when she voluntarily inflicted injury on herself by revisiting the website. Id. at 45–46.
Laufer counters that the Supreme Court has recognized discriminatory treatment as an Article III injury, and a tester plaintiff has standing based on such injury even though the plaintiff voluntarily exposes oneself to discriminatory treatment to challenge a defendant’s unlawful discrimination. Brief for Respondent at 21. Laufer emphasizes that discrimination is a serious noneconomic injury because it stigmatizes members of disfavored groups by treating them as inferior, second-class citizens. Id. at 36. Laufer maintains that Congress enacted the ADA to integrate disabled people into all aspects of society. Id. Laufer argues that Coast Village’s website did not recognize the dignity of disabled people by excluding them from enjoying its online reservation services. Id. at 37. Nevertheless, Laufer asserts that Acheson wrongly dismisses such stigmatic injury as something Laufer could have avoided by calling the inn to receive the accessibility information. Id. at 37–38.
Acheson argues that Laufer does not have standing because her case is moot when she faces neither a forward-looking informational injury nor a future stigmatic or emotional injury. Brief for Petitioner at 51–52. Acheson notes that Coast Village’s website now states that its facilities are not ADA-accessible, so Laufer does not suffer a forward-looking informational injury in failing to find the same information on other reservation websites. Id. at 52. Moreover, Acheson maintains that Laufer suffers no future stigmatic injury because confirming that Coast Village is not ADA-accessible by visiting third-party websites has no adverse effect on her when she does not plan to visit Coast Village. Id. Finally, Acheson asserts that Laufer will suffer no additional emotional injury by viewing third-party websites that lack accessibility information when she already knows that Coast Village is not ADA-accessible. Id.
Laufer counters that whether Coast Village’s website complies with the Reservation Rule requires a merit analysis that is irrelevant in determining her Article III standing. Brief for Respondent at 49. Moreover, Laufer argues that Acheson cannot automatically moot a case simply by correcting its unlawful conduct because courts require defendants to show that the alleged wrongful behavior will not likely recur. Id. at 49–50. Finally, Laufer counters that third-party websites’ failure to disclose Coast Village’s accessibility information still inflicts injury on her because the websites treat her as inferior when she attempts to enjoy their reservation services. Id. at 50.
EFFECTS ON BUSINESSES
In support of Acheson, the Chamber of Commerce of the United States of America (“USCC”) argues that if testers have standing, small businesses will be disproportionately disadvantaged by tester-plaintiffs’ aggressive litigation tactics. Brief of Amici Curiae Chamber of Commerce of the United States of America et al. ("USCC"), in Support of Petitioner at 11. According to the USCC, small business owners often learn about the alleged violations of the ADA after being sued, but the lack of resources to defend themselves often leads to quick settlements. Id. at 12. Thus, USCC asserts that the tester-plaintiffs are incentivized to target small businesses for litigation due to the greater possibility of obtaining quick cash settlements. Id. at 12−13.
In support of Laufer, Disability Antidiscrimination Law Scholars (“Scholars”) contend that compliance with the ADA is not excessively burdensome for hotels, as the law only requires hotels to take reasonable steps, like according adding a “Frequently Asked Questions” section to the websites. Brief of Amici Curiae Disability Antidiscrimination Law Scholars, in Support of Respondent at 11. Similarly, the Disability Rights Education & Defense Fund and seventeen organizations (“DREDF”), in support of Laufer, argue that the ADA is a balanced statute with minimal requirements for private businesses, allowing flexibility to address discrimination without incurring significant costs. Brief of Amici Curiae Disability Rights Education & Defense Fund et al. ("DREDF"), in Support of Respondent at 24−25.
BURDEN ON THE COURTS
The Restaurant Law Center and other associations (“Restaurant Law Center”), in support of Acheson, assert that a significant amount of “unnecessary and ambiguous litigation” will lead to congested courts if testers are allowed to challenge websites’ accessibility. Brief of Amici Curiae Restaurant Law Center et al., in Support of Petitioner at 8−9. Restaurant Law Center highlights the ambiguities in defining website accessibility under the ADA, enabling testers to include various allegations in their complaints to create disputes that must go to trial. Id. at 8. Furthermore, Atlantic Legal Foundation and DRI Center for Law and Public Policy (“ALF”) contend that granting standing for Laufer will have significant implications beyond the scope of the ADA, leading to a flood of lawsuits. Brief of Amici Curiae Atlantic Legal Foundation et al., in Support of Petitioner at 10. ALF asserts that granting standing for Laufer will set a precedent for future plaintiffs to sue for missing, seemingly insignificant information online, regardless of whether the withheld information caused any harm. Id. at 20.
The DREDF, in support of Laufer, asserts that the increasing amount of ADA litigation is insignificant because the number of ADA cases filed remains consistently low compared to other civil case types. Brief of DREDF at 24−25. Furthermore, DREDF argues that the current legal system already offers various ways to deal with serial litigation and has several tools to manage the number of cases to alleviate court congestion. Id. at 32−33. Thus, DREDF states that eliminating tester standing as a whole is an excessive and unjustified response. Id. at 32.
ENFORCEMENT OF ADA REGULATIONS
In support of Acheson, Retail Litigation Center, Inc. et al. (“RLC”) argue that granting testers standing will hinder the government’s reasonable ADA enforcement because private plaintiffs, unlike the government, need not consider the public’s interest in challenging businesses’ ADA compliance. Brief of Amici Curiae Retail Litigation Center, Inc. et al., in Support of Petitioner at 10. RLC also contends that ADA lawsuits filed by serial litigants prioritize settlements without considering whether the business has resolved the reported issue. Id. at 21. Similarly, in support of Acheson, the Center for Constitutional Responsibility (“CCR”) asserts that the court granting testers’ standing will exacerbate issues with private law enforcement by giving tester-plaintiffs authority akin to federal law enforcement without imposing the same level of accountability and legal constraints, which can lead to small or minority-owned businesses unfairly targeted. Brief of Amicus Curiae Center for Constitutional Responsibility, in Support of Petitioner at 16−17.
In support of Laufer, Fair Housing Organizations and testers (“FHO”) argue that tester-plaintiffs are crucial in enforcing civil rights statutes, and the executive branch has long relied on testers to ensure the full enforcement of anti-discrimination laws. Brief of Amici Curiae Fair Housing Organizations et al. ("FHO"), in Support of Respondent at 19. FHO also asserts that the testers play a significant role in upholding policies that Congress prioritizes by identifying and addressing systemic discrimination often left unchallenged. Id. at 20−22. Also, the Scholars, in support of Laufer, contend that private lawsuits are crucial in enforcing the ADA because businesses often do not comply with regulations unless they face the real threat of legal action. Brief of Scholars at 28. The Scholars argue that private enforcement efforts by testers are vital because the government lacks resources to comprehensively assess hotel compliance nationwide and remind operators of their long-standing obligations. Id. at 29.
- The Editorial Board at The Wall Street Journal, A Gambit to Duck Supreme Court Review, The Wall Street Journal (August 7, 2023).
- Karen Harned, Exiting the ‘Constitutional Twilight Zone’, National Review (July 11, 2023).
- Lucy Trieshmann, Hotel Accessibility Reaches the Supreme Court, American Civil Liberties Union (August 14, 2023).
- Michelle Uzeta, Acheson Hotels v. Laufer: Debunking Common ADA Enforcement Myths, Disability Rights Education & Defense Fund (July 28, 2023).