A closely watched case on the standing of testers in Americans with Disabilities Act cases was dismissed Dec. 5 as moot by the U.S. Supreme Court and the lower court decision vacated, dealing a blow to companies looking for clarity on the issue.
Acheson Hotels, which owned a bed and breakfast in Maine when it was sued, sought Supreme Court review of a 1st U.S. Circuit Court of Appeals decision that said a “tester” who had no intention of reserving a room at the inn nevertheless had standing to sue the company for not making information available on its website about the inn’s accessibility features.
The Supreme Court agreed to look into the question of standing to resolve a split among circuits over the matter, with the 1st, 4th and 11th circuits saying testers have standing, while the 2nd, 5th and 10th circuits saying they don’t.
Before the court heard oral arguments, though, the tester, a disabled person named Deborah Laufer who has filed and settled hundreds of similar suits, voluntarily dismissed this and her other pending complaints, citing the suspension of the lawyer she had been working with for fraud in an unrelated case. She also said she had no plans to file additional lawsuits against hotels on the matter.
The Supreme Court elected to keep the case on its schedule and hear arguments, and the appellant, Acheson Hotels, argued it’s important to get a definitive answer on the question of standing notwithstanding the dismissal of the case, because without it, companies could continue to be hit with complaints in the jurisdictions that have ruled in favor of standing. Laufer herself said the court should proceed with a decision on the issue.
But in its 9-0 decision, the court said Laufer’s dismissal makes the question moot.
“We are sensitive to Acheson’s concern about litigants manipulating the jurisdiction of this Court,” said Associate Justice Amy Coney Barrett, who wrote the majority decision. “However,” Laufer “voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer. She represented to this Court that she will not file any others. Laufer’s case against Acheson is moot, and we dismiss it on that ground.”
Although they concurred, justices Ketanji Brown Jackson and Clarence Thomas in separate opinions took issue with aspects of the ruling.
Jackson said the court should rethink its practice of automatically vacating lower court rulings when the case is deemed moot and instead first hear about any harm that would come from not allowing the party involved to appeal.
“Sound vacatur arguments must be rooted in fairness,” she said.
Thomas agreed the issue was moot and the lower ruling should be vacated, but said the court should have gone a step further and, on the substance of the issue, instructed the 1st Circuit to dismiss the case for lack of standing.
Although the ADA requires companies to make their places of public accommodation accessible, there is no requirement they make information about accessibility available, he said. That’s a rule the Department of Justice included in its ADA implementing regulations.
“The ADA prohibits only discrimination based on disability — it does not create a right to information,” he said.
In her majority opinion, Barrett said the court remains prepared to take up the question again; it’s just not doing it in this case.
“We emphasize … that we might exercise our discretion differently in a future case,” she said.
For companies, the ruling means that, in jurisdictions that give ADA standing to testers, it’s possible someone can sue the company for the absence of accessibility information on their website even if that person has no intention of visiting the physical place of business and without regard to the actual accessibility of the physical location.