By Minh N. Vu
Seyfarth Synopsis: SCOTUS grants certiorari on an ADA Title III case for the first time in 18 years to resolve a circuit split on whether an ADA plaintiff has standing to sue without having any intention of frequenting the business.
“Does a self-appointed Americans with Disabilities Act ‘tester’ have 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?” This is the question the defendant hotel asked the U.S. Supreme Court to decide in Acheson Hotels, LLC v. Laufer. Yesterday, the Supreme Court announced it would hear the case. This will be the first time the Supreme Court hears an ADA Title III case in more than 18 years, and it has the potential to reshape the litigation landscape.
The First Circuit Court of Appeals in Acheson held that the plaintiff was not required to have actually intended to patronize the defendant hotel to have standing (i.e., be eligible) to sue the hotel over whether its website provided sufficient information about the hotel’s accessible features. The Ninth, Eleventh, and Fourth Circuits have taken similar positions, finding that there is no need for a tester plaintiff to have an intent to patronize a business to have standing to file an ADA Title III lawsuit. The Second, Fifth and Tenth Circuits, in contrast, have held that a plaintiff’s encounter with an ADA Title III violation on a website of a public accommodation does not automatically confer standing, unless there are downstream consequences resulting from the violation. These courts require a plaintiff to show that the plaintiff wanted to patronize the public accommodation but could not because of the ADA violation on the website.
If the Supreme Court affirms the Acheson decision and paves the way for more plaintiffs to file lawsuits without ever having to leave their homes or even feign interest in patronizing the defendant business, then the number of ADA Title III lawsuits is likely to increase substantially. In 2022, federal courts saw the first decline in new ADA Title III lawsuit filings in the ten years that we have been tracking these statistics. Even then, there were 8,694 such lawsuits, compared to a high of 11,452 in 2021. On the other hand, if the Supreme Court adopts the approach of the Second, Fifth and Tenth Circuits, we doubt the lawsuits numbers will go down. High-frequency plaintiffs and their attorneys will just have to work a little harder to persuade the courts they really want to patronize those thousands of businesses they sue each year.
Edited by John Egan