For the past year, businesses and attorneys alike have been impatiently awaiting the U.S. Supreme Court’s decision on whether a “tester” plaintiff – a person with a disability who examines compliance with the Americans with Disabilities Act (“ADA”) – has standing to bring a lawsuit when a place of public accommodation is allegedly out of compliance with the ADA. Unfortunately, the unanimous opinion issued by the Court on December 5, 2023 kicked the can down the road on this critical issue, leaving us longing for more.

The case, Acheson Hotels, LLC v. Laufer, involved a plaintiff who has sued hundreds of hotels whose websites allegedly failed to specify what, if any, accessible options and amenities were available to persons with disabilities. As such, Laufer alleges she was denied equal enjoyment of Acheson Hotels’s accommodations.

Plaintiffs who mass-file these types of lawsuits are commonly referred to as “serial plaintiffs.” It is typical for these lawsuits to contain identical, or very similar, allegations. While the United States Department of Justice enforces Title III of the ADA on a broad, systemic scale, lawsuits filed by serial plaintiffs often result in court decisions that may fill in contours of the law where the DOJ has failed to issue guidance and regulation.  Unfortunately, not all courts view these issues alike, resulting in circuit splits.

In briefing and oral arguments, Acheson Hotels argued that Laufer lacked standing to bring her claims, as she had no genuine intention of ever booking a stay at an Acheson Hotel and therefore suffered no injury. Laufer herself has caused a circuit split on the issue: The Second, Fifth, and Tenth Circuits all ruled Laufer lacked standing, as she admittedly had no intention of visiting the hotels she was suing[1], while the First, Fourth, and Eleventh Circuits ruled a plaintiff’s tester status alone doesn’t defeat standing.

Unfortunately, the Supreme Court refused to rule on the merits of Acheson Hotels’s standing argument, instead holding Laufer’s claims had become moot after she voluntarily dismissed her pending lawsuit with prejudice. The Court noted, however, that standing and mootness were both jurisdictional issues and could be decided in any sequence.  As such, the court left open the door for another lawsuit like Laufer’s to find its way up to the Supreme Court again, possibly resulting in some long-awaited clarity on the standing of tester plaintiffs.

As we’ve noted before, the lack of guidance by the DOJ or the U.S. Supreme Court can make it challenging—and expensive—to resolve these types of cases swiftly. However, the best defense is a good offense and businesses should consider proactively engaging in the following steps:

• Refresh your team on the Web Content Accessibility Guidelines (“WCAG”) 2.1 accessibility requirements. While the DOJ has neglected to officially adopt WCAG as a benchmark for ADA compliance, case law indicates courts may defer to its guidance.
• Have an accessibility compliance officer or consultant review your business’s websites and mobile apps to ensure individuals with disabilities can access information with commonly used assistive technology, such as text magnification or screen reading software, and proactively fix any concerns.

• Continue to monitor your company’s online presence on a regular basis to ensure continuous compliance.

• Hotels and Restaurants – take special care! Ensure that your websites and reservation portals are updated with information concerning accessibility of your properties – from the dining room to the common areas and everything in between.

[1] Laufer v. Looper, 22 F.4th 871, 878 (10th Cir. 2022) (“Ms. Laufer has conceded, however, that she has no concrete plans to visit Craig, Colorado, or to book a room at the Elk Run Inn.”)

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