SCOTUS Case: Acheson Hotels, LLC v. Laufer (Part 1)
Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.
It is the issue of the Americans with Disabilities Act (ADA) case of Acheson Hotels, LLC v. Laufer, to be heard before the United States Supreme Court (SCOTUS) on Wednesday, October 4.
Background: Read the 2020 USA Today article, “Woman files about 500 lawsuits across the U.S. as ‘tester’ of disability compliance.”
The latest status is that, on August 10, the SCOTUS denied Respondent Deborah Laufer’s request that it dismiss the case as moot.
ADA Tester? I recalled that I first learned what a tester of disability compliance in 2006 was. Living in Sykesville, Maryland, I followed the activities of “ADA Shakedown Artist” Marilynn Phillip of Hampstead, Maryland, who uses a wheelchair because of post-polio syndrome and severe osteoporosis. Professor Phillips of Morgan State University filed lawsuits against several businesses in the borough of Gettysburg, Pa., because they lagged far behind compliance with the ADA.
In 2013, a federal court in Pennsylvania stated, “An ADA tester is an individual with a disability who repeatedly visits places of public accommodation with the dual motivation of verifying ADA compliance along with availing himself or herself with the goods and services available.” The other name of the “ADA tester” is “a serial ADA lawsuit filer.”
Also, I recalled that former Sen. Orrin Hatch (R-Utah) wrote his opinion in the USA Today on July 26, 2020:
“The purpose of the ADA is to bring persons with disabilities into the economy—not to destroy the businesses they would go to in the first place. In this regard, drive-by lawsuits violate the spirit of the ADA. Worse still, they pit the disability and business communities against each other, threatening to undermine the partnership that has made the law so successful. That’s why curbing excessive litigation is key to securing the legacy of the ADA.”
According to the U.S. Small Business Administration, there are 33,185,550 small businesses in the United States. But I have no idea whether these businesses are aware of ADA drive-by lawsuits and the new virtual-thru lawsuits.
Serial ADA lawsuit filers and “drive-by disability activists” still use the ADA.
“Drive-by” litigation? Some serial ADA filers have never even set foot onto the property to determine any architectural barriers for disabled individuals. For example, the serial ADA filer drives around spot violations with accessible parking spots and signs without even getting out of the car.
“Virtual-thru” litigation? For example, the woman mentioned above living in Florida visited the websites or third-party online booking sites for hotels and motels in Maine. She then filed lawsuits without seeing these properties in Maine.
For nearly two decades, unscrupulous lawyers and serial plaintiffs have not sought to increase access or eliminate barriers for persons with disabilities. Instead, their demand letters describe overly technical or potential infractions and demand thousands of dollars to settle at a price point slightly less than the cost to retain counsel. For example, a 59-inch-tall accessible parking sign, instead of the 60-inch minimum, may result in a business’s liability.
Sen. Hatch exclaimed, “Consider that in 2019 alone, 11,053 ADA Title III lawsuits were filed in federal court — a record-breaking number that has more than doubled in the last five years.” The number of 2021 Federal ADA Title III filings was 11,452. The number for 2022 has dropped to 8,694, but it will likely rebound in 2023.
On January 11, Rep. Ken Calvert, R-CA, reintroduced the ACCESS Act, H.R. 241, legislation designed to help small businesses comply with the Americans with Disabilities Act (ADA) and protect them from serial litigants.
“The ACCESS Act would alleviate the financial burden small businesses are facing, while still fulfilling the purpose of the ADA. Any person aggrieved by a violation of the ADA would provide the owner or operator with a written notice of the violation, specific enough to allow such owner or operator to identify the barrier to their access. Within 60 days, the owner or operator would be required to provide the aggrieved person with a description outlining improvements that would be made to address the barrier. The owner or operator would then have 120 days to remove the infraction. The failure to meet any of these conditions would allow the suit to go forward.”
However, H.R. 241 is likely not coming out of the House committee this session.
Back to the SCOTUS: It is exciting to know that Respondent Deborah Laufer’s request to ask the SCOTUS to dismiss this case. At the same time, nine civil rights organizations filed a friend-of-the-court brief urging the Supreme Court to support Respondent. Here are the names of these organizations: (Click the link to read its statement.)
Lawyers’ Committee for Civil Rights Under Law
Howard University School of Law Civil Rights Clinic
Small business owners are urged to read the 279-page ADA Standards for Accessible Design (2010 Standards), which combines the information in one easy-to-access location, and its ADA Update: A Primer for Small Business.
To Be Continued for Part 2