Supreme Court “punts” in ADA “tester” case
by James J. Dean
If you are a place of public accommodation under the ADA – such as a hotel, restaurant, school, college, doctor’s office, accountant, realtor, store, car dealership or other business open to the public – you may be sued by an ADA “tester” for disability discrimination even though that person has no plans to visit your establishment or do business with you.
In Acheson Hotels, LLC v. Lauffer, the U.S. Supreme Court had an opportunity to change that. Unfortunately, on December 5, 2023, the Court “punted” the case because the “tester” who filed the lawsuit voluntarily dismissed her case during the appeal. That is unfortunate. Serial ADA “tester” litigation has become a cottage industry. As the United States Chamber of Commerce pointed out in its amicus brief in the case:
Litigation under Title III of the ADA (which prohibits discrimination on the basis of disability in places of public accommodation) has exploded over the past several years. Case filings have more than tripled since 2013 and now count more than 10,000 filings annually. These cases are unique not only in their explosive growth, but also in their geographic distribution. More than half of ADA Title III cases are filed in just three states: California, New York, and Florida.
In the Acheson Hotels case, the plaintiff, Deborah Laufer, used a wheelchair and lived in Florida. She sued Acheson Hotels after viewing its website and claiming that the website lacked information required by ADA regulations. Ms. Laufer sued Acheson Hotels even though she had no intention of going there. Ms. Laufer had sued hundreds of hotels that she had no intention of visiting (she sued over 600 hotels in the five years leading up to this case). She often offered to settle immediately for $10,000 in attorney’s fees and corrective action. Significantly, Ms. Laufer dropped her case against Acheson Hotels after one of her lawyers was sanctioned for lying about his attorney’s fees in court fee petitions and in settlement negotiations. The attorney was demanding $10,000 in attorney’s fees per case even though he was using “boilerplate” complaints.
When faced with an ADA accessibility lawsuit, many commercial establishments, especially smaller businesses, feel pressured to settle quickly to avoid the costs of litigation – even when they do not believe they violated the ADA. This is especially true in ADA “tester” litigation, which will continue to be filed in large numbers in Florida. However, there are defenses to ADA claims, and not all “testers” can satisfy the legal requirements to bring a lawsuit.
So, what should businesses do? First, check your websites and facilities to ensure compliance with the accessibility requirements of the ADA. Second, if an ADA claim is made against you, check your insurance policies to see if the claim is covered by insurance. And third, consider consulting legal counsel about your rights and defenses.