By Minh N. Vu and John W. Egan

Seyfarth Synopsis:  SCOTUS asked revealing questions in yesterday’s Acheson v. Laufer oral argument, but left attendees wondering whether the Court will provide much-needed guidance on the so-called “tester standing” issue for which it granted certiorari.

The U.S. Supreme Court (SCOTUS) heard oral argument yesterday in a case arising under Title III of the Americans with Disabilities Act (ADA) for the first time in eighteen years to decide whether a “self-appointed [ADA] tester” has standing to challenge a place of public accommodation’s alleged failure to provide legally required disability accessibility information on its website, even if she has no intention of visiting that business.  However, at least half of the argument focused on whether the Court should decide this issue at all because Plaintiff/Respondent Laufer dismissed the underlying lawsuit after SCOTUS granted Defendant/Petitioner’s request to consider the question.  

Some background is in order.  The Plaintiff/Respondent, Deborah Laufer, filed a lawsuit (one of over 600 similar lawsuits she had filed according to her Petition for Certiorari) alleging that she visited the website of the Defendant/Petitioner Acheson Hotel (“Acheson”), and found it was missing information regarding accessibility features of the hotel required by the ADA.  She admittedly had no intention of ever visiting the hotel and had reviewed the website for no reason other than to test its compliance with the ADA regulations.  

The district court concluded that encountering the ADA violation without any intent to visit the hotel was not sufficient for Laufer to establish the injury required for her to have standing to pursue the case.  The U.S. Court of Appeals for the First Circuit disagreed and reversed, holding that an intent to visit the business was not necessary for standing.  Laufer’s encounter with the allegedly deficient information on the website was a sufficient injury to establish standing to sue, the First Circuit ruled.

After SCOTUS agreed to hear the case, Laufer dismissed her case in the district court and then asked SCOTUS to dismiss her case as moot.  Acheson vigorously opposed the request, arguing that Laufer had deliberately abandoned her claims to avoid a potential decision overturning the First Circuit’s very plaintiff-friendly standing precedent.  SCOTUS declined that request, stating that the issue of mootness would be considered at oral argument, along with the original question presented.  Then, on September 20, 2023, to further her mootness argument, Plaintiff filed a brief informing SCOTUS that the property at issue had been sold and Acheson no longer owned the hotel.

This was the state of play going into the oral argument yesterday, with counsel for Acheson, Laufer, and the United States presenting their arguments to the Court.

The two issues that dominated the argument were:

  1. Should the Court address whether Laufer had standing as a tester or simply declare the matter moot and not address the standing issue?
  2. On the standing question, when has a plaintiff suffered an injury sufficient to have standing when the violation is on a website?

Justice Thomas teed up a vigorous round of questioning by almost all the Justices on the mootness issue by asking Acheson’s counsel why the Court should decide the standing issue now that the case is moot.  Justices Sotomayor, Jackson, and Kagan seemed most inclined to declare the matter moot and not address the tester standing issue.  Justice Kagan said it felt “unjudicial” to consider a case that was “dead as a doornail” and said the case was “dead, dead, dead” in “all the ways a case can be dead.” 

Chief Justice Roberts, on the other hand, seemed concerned that a plaintiff could manipulate the process to keep SCOTUS from addressing the tester standing issue.  Justice Barrett seemed to share his concern, noting that Laufer had voluntarily dismissed the judgment she received in the Eleventh Circuit in a different case which had the effect of reducing (but not eliminating) the number of conflicting appellate circuit decisions on the question of tester standing.  Justice Alito suggested that a decision from SCOTUS on the issue was important given the split among the circuits on the issue of tester standing.  The viewpoints of Justices Gorsuch and Kavanaugh were not readily apparent.  Despite the apparent differences of opinion among some of the Justices on whether they should decide the tester standing issue, they and the parties appeared to agree that SCOTUS has the authority and discretion to address it, even if the case is moot.

On the issue of tester standing, the Justices posed a flurry of hypotheticals to counsel for the parties and the United States to ferret out their positions.  Under what circumstances does a plaintiff encountering a violation on a website suffer an injury sufficient to establish standing?  Counsel for Laufer took the position that encountering a violation on a website is itself sufficient to establish standing irrespective of the intent for visiting the site and any consequences flowing from that encounter.  The United States seemed to take a similar position.  Acheson disagreed.  Not surprisingly, the liberal Justices seemed more open to a less demanding standard for standing than their conservative counterparts.

SCOTUS concluded oral argument with no clear indication of whether or how it will rule on the tester standing issue, but it was clear that some Justices support a substantive ruling on the issue to clarify the law now.  As ADA specialists, we do hope the Court will address the question, as clarity and uniformity of the law are important for plaintiffs and defendants alike.

Edited by: Kristina Launey