The Supreme Court of the United States (SCOTUS) issued its much anticipated ruling in Acheson Hotels, LLC v. Laufer vacating the matter as moot. Doing so, SCOTUS left private business owners grappling with the existing Circuit split as to whether “testers” under Title III of the Americans with Disability Act of 1990 (ADA) have standing to pursue alleged violations.
Unlike actual or potential patrons of a business or website, “testers” are individuals who visit a business or website for the sole purpose of assessing compliance with Title III of the ADA. “Testers,” typically, have no intention of utilizing the services of the business or website. While a disabled individual may allege to be both a potential patron and a “tester” (commonly pled as such in California), the precise question before SCOTUS was whether Deborah Laufer has standing to sue hotels whose website allegedly violated Title III of the ADA even though Laufer had no intention of booking a room at any of the hotels (i.e., just a “tester”).
In the context of websites, the “tester” theory of liability may be particularly problematic for private businesses as a ”tester” may troll hundreds of websites throughout the nation without ever having, or needing, an intention of using the services of that business (i.e., specifically looking for websites to find a violation and then sue). While the underlying rationale to “test” for ADA compliance may be a commendable approach, the “tester” theory of liability alone leads to serial plaintiffs suing hundreds of private businesses without any intention of ever being patron, just a plaintiff and for the benefit of the attorneys behind the “tester”.
Laufer is a prime example, filing nearly 600 lawsuits for alleged violations of Title III of the ADA and “singlehandedly generated a circuit split,” as Justice Amy Coney Barrett noted, with the First, Fourth, and Eleventh Circuits holding that she has standing to pursue “tester” liability compared to the Second, Fifth, and Tenth Circuits concluding that she lacked standing. The Ninth Circuit, which currently appears to be favorable to “tester” standing may be reconsidering its decision in Langer v. Kisor, now that SCOTUS has ruled.
The Laufer case perfectly tee’d up SCOTUS to address the split amongst the Circuits and provide private businesses with much needed clarity to decide whether an out-of-state resident may sue a small business, like an inn several states away, that she has no intention of ever visiting, for purported omissions on its website. Despite this much needed clarity and the potential elimination of thousands of Title III ADA “tester” lawsuits filed against private businesses in federal courts, SCOTUS left what appears to be a straightforward question unresolved.
While SCOTUS acknowledged that it had the authority to address jurisdictional issues of mootness and standing in any order it chooses, the Court ultimately decided that the matter was moot because Laufer voluntarily dismissed her pending lawsuits, including the case against Acheson, after her attorney was sanctioned by a lower court.
Without much needed clarity for private businesses and the defense bar, we expect to see “tester” cases pursued in the First, Fourth, and Eleventh Circuits, and probably, the Ninth while other Circuits are likely to see a decrease of such filings or at least the inclusion of theories of liability beyond just being a “tester”. SCOTUS could, of course, grant review of another matter to address this unresolved issue, but as Acheson cautioned the Court, should it do so, that plaintiff may follow Laufer’s playbook and voluntarily dismiss that case on the goal line.
