Every business or nonprofit open to the public, regardless of size, must comply with Title III of the Americans with Disabilities Act (“ADA”).

The ADA permits a plaintiff to sue a business for failing to provide full and equal access to goods, services, and facilities. The ADA’s aim is laudable; however, plaintiff attorneys have begun exploiting its breadth. Plaintiff attorneys are bringing claims against businesses of all sizes on behalf of plaintiffs who may never actually intend to use the defendant’s goods, services, or facilities. These lawsuits may include allegations that a website is inaccessible to the visually impaired or that hotel beds are too high for the mobility impaired.

A single law firm may file dozens of nearly identical cases, using the same plaintiff, against similarly situated businesses in a short period of time. This type of ADA litigation has become an epidemic in certain parts of the country, including in the Western District of Pennsylvania. Every business is threatened by it.

The proliferation of these cases has raised basic but consequential questions of “standing,” the capacity of a particular party to bring suit. Courts, counsel, and businesses alike are asking – are a plaintiff’s “informational injuries” enough to expose businesses to suit under the ADA? May plaintiffs sue because they learn of a potential ADA violation – such as by visiting a website or calling a hotel’s front desk – or must they personally suffer a concrete injury arising from the noncompliance? The U.S. Supreme Court is stepping in to answer.

During the 2023-2024 term, the Court will hear the case of Acheson Hotels v. Laufer. The plaintiff, Deborah Laufer, sued Acheson Hotels LLC for failing to sufficiently provide information on its website about accessible hotel rooms, despite no indication that Ms. Laufer intended to patronize the hotel. Ms. Laufer is both visually and mobility impaired and had previously filed more than 600 federal lawsuits under the ADA.

The Supreme Court will decide whether “tester” plaintiffs – like Ms. Laufer who have not been directly injured but who seek to identify noncompliant businesses – have standing to bring ADA actions against businesses when they have no genuine intention to visit the defendant business or utilize its services. Federal circuit courts are split on the issue. The Supreme Court’s decision, no matter the outcome, will have significant implications for any business open to the public or operating a website within the United States.

If the Supreme Court upholds tester standing, businesses can expect an increase in the number of ADA claims filed in federal court. If the Supreme Court strikes down tester standing, businesses will benefit from experienced counsel who are ready to argue a lack of standing in the face of tester suits.

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