The United States Supreme Court concluded on Tuesday that it won’t resolve Acheson Hotels LLC v. Deborah Laufer, the case that would have determined whether accessibility “testers” had the right to sue hotels they had no intention of staying in for not complying with the Americans with Disabilities Act.
The court heard oral arguments in the case in October, but complications surrounding Laufer’s lawyer, Tristan Gillepsie — who was suspended from practicing law by a Maryland court — led the Supreme Court to pass on making a decision.
After Gillepsie was sanctioned, Laufer voluntarily dismissed all her pending ADA cases, according to the Supreme Court’s opinion. With the case unresolved, however, other “testers” are still able to sue hotels.
Hotel industry leaders, many of whom have expressed concern about accessibility testers, had mixed reactions to the decision.
A long-awaited decision
Laufer first sued Maine-based hotel group Acheson Hotels in 2020, alleging its websites weren’t up to standards set by the Americans With Disabilities Act — despite having no plans to stay at the properties in question. Laufer, an activist, is what many call a “tester,” someone who combs businesses’ websites for ADA violations with the intention of suing.
According to the Associated Press, Laufer has filed more than 600 federal lawsuits against hotel owners and operators. Critics of the practice call this kind of serial litigation “drive-by lawsuits.”
The Supreme Court intended to decide whether Laufer had standing to sue, having originally stepped in to make a determination after the case divided several other courts.
“Laufer has singlehandedly generated a circuit split,” wrote Justice Amy Coney Barrett in the court’s opinion, issued Tuesday. “The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it. We took this case from the First Circuit to resolve the split.”
But after the nation’s highest court agreed to consider the case, Barrett wrote, it “took an unusual turn.”
In July, the United States District Court for the District of Maryland suspended Gillepsie for “defrauding hotels by lying in fee petitions and during settlement negotiations,” in Barrett’s words. The court found that the lawyer had demanded $10,000 in attorney’s fees per case despite using “boilerplate” complaints.
In response, Laufer voluntarily dismissed her pending suits, and filed a suggestion of mootness. The Supreme Court decided to proceed with hearing oral arguments regardless.
Now, the court has said it agrees with Laufer’s mootness suggestion, with Barrett writing that the court would prefer not to resolve “a difficult question in a case that is otherwise over.”
Industry reaction
The news is a mixed bag for hotel industry leaders.
“Tester lawsuits, in which plaintiffs file hundreds of legal complaints against hotels seeking quick settlements, have become a cottage industry in the United States. In this case, a hotel decided to fight this scheme and in doing so shed light on the extortive practice,” said Chip Rogers, president and CEO of the American Hotel & Lodging Association, in a Tuesday statement.
“While we would have welcomed a broader ruling, the Supreme Court today sent a message to other serial litigants against ‘manipulating the jurisdiction of the [Supreme Court],’ and revealed how the court ‘might exercise its discretion differently in a future case,’” Rogers added. “Because Acheson and the hotel industry fought back, the plaintiff dismissed hundreds of suits against hotels and vowed to the court she would never again bring these types of claims.”
Rogers said Laufer’s case dismissals “will bring some solace to small business hoteliers who for years have been victimized by drive-by and click-by tester lawsuits.”
Laura Lee Blake, president and CEO of the Asian American Hotel Owners Association, described the decision as a “great disappointment.”
“This decision leaves a critical issue unresolved and denies clarity to lower courts grappling with the legal standing of ‘testers’ in ADA cases,” Blake wrote in a post on LinkedIn. (Blake previously told Hotel Dive that Acheson Hotels LLC v. Deborah Laufer is “a big case that we are watching on behalf of our members.”)
“Regrettably, for all hoteliers, the answer has been left undecided,” Blake continued. “We urge all hotel owners to continue to ensure that your reservation websites are fully ADA compliant to avoid being named for alleged violations by activist testers, who have no plans to reserve a room or visit your hotel.”
The Washington, D.C.-based nonprofit National Disability Rights Network, meanwhile, welcomed the decision.
“The Americans With Disabilities Act is the foundation of disability rights and protections in the United States,” said Marlene Sallo, the organization’s executive director, in a statement. “Any attempts to weaken our ability to enforce it would be disastrous for people with disabilities.”
“The Supreme Court’s decision means we can continue to pursue our mission to ensure all Americans can fully participate in community life,” Sallo added.
Though the issue remains unresolved, Barrett hinted at the possibility of a future decision in the closing of her opinion.
“Laufer’s case against Acheson is moot, and we dismiss it on that ground,” Barrett wrote. “We emphasize, however, that we might exercise our discretion differently in a future case.”
