By Minh N. Vu & John W. Egan

Seyfarth Synopsis:  SCOTUS’s refusal to clarify standing requirements for “tester” plaintiffs in ADA Title III lawsuits means it’s business as usual for the plaintiffs’ bar. 

Yesterday, SCOTUS issued its decision in Acheson v. Laufer which – to the disappointment of private businesses and the defense bar – leaves unanswered the question of whether individuals who visit websites and businesses for no other reason than to evaluate their compliance with Title III of the ADA (i.e., so-called “testers”) have standing to bring a lawsuit.  While SCOTUS said it had the discretion to decide this very important question of tester standing, on which the U.S. Courts of Appeals are divided, it declined to do so because Laufer mooted the case by dismissing it at the District Court (along with all her other pending ADA Title III cases) after SCOTUS said it would review the case.  At oral argument two months ago, Defendant Acheson had urged SCOTUS to decide whether Laufer had standing nonetheless, pointing out that Laufer should not be permitted to evade a potentially unfavorable decision (and manipulate the Court’s jurisdiction in the process), by voluntarily dismissing her case with prejudice. 

Justice Barrett authored a brief opinion for the majority in which Chief Justice Roberts, and Justices Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined.  That opinion credited Laufer’s claim that she had dismissed her lawsuit because one of her former attorneys had been sanctioned, rather than to evade the Court’s review.  The majority noted that Laufer represented to the Court that she would not file any other cases but emphasized that the Court might exercise its discretion differently in a future case. 

In his opinion concurring only in the judgment, Justice Thomas found Laufer’s explanation implausible and concluded that she dismissed her case as a “transparent tactic for evading review” by the Court.  He pointed out that the sanctioned attorney had never served as her counsel in the case.  He added: “[W]e have needlessly invited litigants to follow Laufer’s path to manipulate our docket.  We should not resolve this case about standing based upon mootness of Laufer’s own making.”  Justice Thomas went on to conclude that Laufer did not have standing because the alleged violation on the website (i.e. deficient accessibility information about the hotel) caused her no harm, as she never had any interest in staying at the hotel.  He then described the dangers of ADA testers who seek to vindicate the public interest, but do not have the accountability of the Executive Branch.  Without a violation of her own rights, he explained, Laufer was able to, without any discretion required of a government official, “surf the web” to ascertain compliance of hotels she had no intention to visit and obtain monetary settlements from businesses seeking to avoid substantial defense fees.  Justice Thomas concluded that these activities go far beyond the role for private plaintiffs that Congress envisioned in ADA Title III cases.     

Justice Thomas did join the majority with regard to the judgment which was to remand the matter with an order to dismiss and vacate the decision by the First Circuit Court of Appeals.  Justice Jackson, writing separately, agreed with the majority that the case was moot but wanted to leave in place the First Circuit Court of Appeal’s “pro-tester” ruling.

SCOTUS’s failure to settle the issue of tester standing should be very frustrating to private businesses which, in the past five years (2018-2022), have been hit with an average of 10,468 ADA Title III federal lawsuits a year.  Thousands of those suits are filed by tester plaintiffs whose stated desire to patronize the businesses they sue is highly questionable.  Few businesses have the resources to litigate a case all the way to SCOTUS.  Most businesses settle early to avoid incurring legal fees.  Thus, it is unlikely that this question will reach SCOTUS again for many years, especially when – like Laufer – plaintiffs can evade review by voluntarily dismissing their cases when faced with a potentially unfavorable judgment that could impact their future filings.

The bottom line is that tester plaintiffs and their attorneys will continue to bring cases in those jurisdictions where the standing rules are less demanding such as the Fourth and Eleventh Circuits.  Tester plaintiffs in the Second, Fifth, and Tenth Circuits will continue to face stricter standing requirements.  Meanwhile, the Court of Appeals for the Ninth Circuit is contemplating whether to reconsider its decision in Langer v. Kisor which favors tester plaintiffs.  The Ninth Circuit had put on hold its decision on the Petition for Rehearing en banc to see how SCOTUS would rule in Acheson, and the court is now likely to move forward with its decision soon.

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

Synopsis:  SCOTUS denies serial plaintiff’s attempt to dismiss her case and avoid the court’s consideration of a critical legal issue in ADA Title III lawsuits – tester standing.

U.S. Supreme Court Building
U.S. Supreme Court Building

As we reported several weeks ago, serial plaintiff Deborah Laufer tried to evade the U.S. Supreme Court’s (SCOTUS) consideration of a very important legal issue —the standing of testers — by dismissing her case in the district court and then asking SCOTUS to dismiss her case as moot.  She claimed that she was dismissing all of her pending ADA Title III lawsuits because she did not want the allegations of misconduct against her prior counsel, Tristan Gillespie, to “distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself.”

Acheson Hotels, the Petitioner in the SCOTUS proceeding, vigorously opposed the dismissal request, arguing that Laufer was “abandoning her case to pave the way for Laufer and similar plaintiffs to resume their campaign of extortionate ADA suits against unwitting small businesses without the hindrance of an adverse ruling from this Court.”  Acheson’s brief further argued that the “Court should not reward Laufer’s effort to insulate lower-court rulings upholding ‘tester’ standing from Supreme Court review.” 

Just yesterday, SCOTUS issued the following Order:  “The respondent’s request that the Court dismiss the case as moot at this time is denied. The question of mootness will be subject to further consideration at oral argument in addition to the question presented.” 

In short, it seems SCOTUS may well consider the very important question presented by this case:  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.  Laufer had to move forward with filing her brief on the merits on August 2, 2023 and the matter is now fully briefed.

Oral argument is set for October 4, 2023.

By Minh N. Vu

Seyfarth synopsis:  The opening brief in Acheson Hotels v. Laufer, the first case to reach the U.S. Supreme Court in more than 18 years, was filed today.

Today, Petitioner/Defendant Acheson Hotels LLC filed its opening brief in the first ADA Title III case before SCOTUS in over eighteen years.  In our view, the decision in Acheson v. Laufer will either (1) open the floodgates for individuals with disabilities to visit businesses they do not intend to patronize in order to test and sue them for ADA non-compliance, or (2) make it a little bit harder for such individuals to sue. 

As we discussed in an earlier post when SCOTUS granted Certiorari, the question before the Court is whether a person with a disability has standing to sue a business for non-compliance with ADA requirements if that person has no interest in ever patronizing that business.    

In Acheson, the plaintiff visited the hotel’s website and alleged that it was missing accessibility information required by the ADA.  The district court concluded that the plaintiff was not injured by the alleged violation and did not have standing to sue because she had no interest in patronizing the hotel.  The First Circuit disagreed and reversed, holding that an intent to patronize the business was not necessary for standing.  We think that SCOTUS granted Certiorari because the First Circuit’s decision does not align with its more recent decisions on standing and there is a bona fide circuit split on this issue.

While Acheson is a website case, SCOTUS’s decision will also be relevant to the standing analysis for cases involving alleged physical barriers because, to have standing to sue, plaintiffs must demonstrate a desire to return to the allegedly non-compliant facilities in the future.  If plaintiffs can satisfy this requirement by simply claiming that they intend to return as testers to evaluate compliance, all plaintiffs will seemingly be able to meet this requirement.  On the other hand, if SCOTUS determines that an intent to patronize is necessary, plaintiffs will need to work a little harder to allege facts demonstrating their desire to patronize the business in the future (prior visits, their reasons for visiting, proximity to their residence, etc.). 

Plaintiff/Respondent’s brief is due August 2, 2023.  No argument date has been set.

Edited by John W. Egan

By Minh Vu, Kristina Launey, and Susan Ryan

Seyfarth Synopsis: The decline in ADA Title III lawsuits that began in 2022 continues in 2023.  New York remains the filing hotspot.

Continuing the trend discussed in our 2022 blog posts here and here, the number of lawsuits filed in federal courts alleging violations of Title III of the Americans with Disabilities Act (ADA) is decreasing from its 2021 high.  2022’s final numbers showed 24.1% fewer cases filed than in the previous year.  Thus far into 2023, the numbers are even fewer.  4,081 cases were filed between January and June of this year, representing a 17% drop from the 4,914 cases filed between January and June 2022.

[Mid-Year ADA Title III Federal Lawsuit Filings 2017-2023: 2017: 4,127; 2018: 4,965, 20% Increase from 2017; 2019: 5,592, 12% Increase from 2018; 2020: 4,751, 15% Decrease from 2019; 2021: 6,304, 33% Increase from 2020; 2022: 4,914, 22% Decrease from 2021; 2023: 4,081, 17% Decrease from 2022]

The number of federal lawsuits filed in the first six months of this year is lower than the number of suits filed in 2017 for the same period.  That is quite a dramatic change. 

The drop in California federal lawsuit filings is just as stark:  California federal courts only saw 1,020 lawsuits for the first half of this year, as opposed to the first half of 2022 when there were 1,587.  That’s a 35.8% decline.

New York has continued to lead the nation in ADA Title III filings.  In 2022, the Empire State stood at 1,819 filings at the end of June and at 3,173 at year’s end.  2023’s mid-year tally is 1,477 cases.  This is fewer than last year, but still ahead of the other states by a significant margin.  Florida, coming in third, had 740 filings—about half of New York.

New York has been a hot venue for ADA Title III filings for years now:

[New York Mid-Year ADA Title III Federal Lawsuit Filings 2017-2023: 2017: 410; 2018: 1,026; 2019: 1,212; 2020: 756; 2021: 1,423; 2022: 1,819; 2023: 1,477]

Here are the top five states with the highest number of cases filed so far this year:

[2023 Mid-Year Federal ADA Title III Filings for Top 5 States: PA: 127; TX: 130; FL: 740; CA: 1,020; NY: 1,477]

What is the reason behind the decrease in federal ADA Title III lawsuits?  There are likely a number of factors.  First, in ADA Title III cases filed in California plaintiffs routinely add state law claims for statutory damages under the Unruh Act and Disabled Persons Act.  Many California federal judges have recently dismissed these claims for monetary damages right out of the gate on the theory that they are an end run around more stringent state court filing requirements. This has made federal court a less attractive venue for plaintiffs.  Second, one California firm that used to file many hundreds of cases each year had some legal troubles of its own then lost quite a few attorneys in the past two years and filed fewer cases as a result.  Third, one prolific Florida law firm stopped filing cases after one of its attorneys became the subject of a disciplinary proceeding and was recently suspended from the practice of law for six months.  Some of the unsavory findings from this disciplinary proceeding may have dampened the enthusiasm of some other plaintiff’s attorneys to file ADA Title III lawsuits.  Finally, earlier this year, the U.S. Supreme Court agreed to hear a case about the standing of serial plaintiffs which could make it harder for them to continue filing hundreds of lawsuits a year.  Attorneys representing these plaintiffs may be holding off on filing new cases while SCOTUS decides this issue.

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those from the count.

By Minh N. Vu

Seyfarth Synopsis:  The Plaintiff in Acheson v. Laufer dismisses her lawsuit with prejudice and asks SCOTUS to dismiss its pending review based on mootness.

In an unexpected and bizarre turn of events, Deborah Laufer, the plaintiff in the much-watched Acheson v. Laufer case pending before the U.S. Supreme Court (“SCOTUS”), has decided to dismiss that case and all of her other pending ADA Title III lawsuits with prejudice.  What is more, she filed a brief in the matter before SCOTUS stating that her case is now moot and should be dismissed.  The hotel defendant, Acheson, intends to oppose the requested dismissal.

Ms. Laufer’s stated reason for abandoning all of her pending ADA Title III lawsuits is the bizarre aspect of this recent development.  In her brief, she informed SCOTUS that an attorney who had represented her in the past in unrelated ADA Title III cases, Tristan Gillespie, had recently been suspended from the practice of law by the U.S. District Court for the District of Maryland for unethical behavior.  She told SCOTUS that she did not want “the allegations of misconduct against Mr. Gillespie” to “distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself.  She accordingly has decided to dismiss all of her pending cases with prejudice.” 

A review of the Order suspending Mr. Gillespie and Report and Recommendation (the “Report”) from the three-judge panel that presided over disciplinary proceeding reveals unsavory details of one law firm’s handling of its ADA Title III “tester” litigation.  The thirty-one page Report recounts that Mr. Gillespie worked for the Thomas Bacon P.A. firm when he filed hundreds of ADA Title III lawsuits on behalf of Laufer and another disabled individual while simultaneously working full-time as an Assistant District Attorney for Fulton County, Georgia.  The Bacon Firm had filed over 600 lawsuits on behalf of Laufer and nearly 200 for the other tester plaintiff.  In fact, Thomas Bacon of the Bacon Firm represented Laufer before SCOTUS until this most recent filing requesting dismissal of the matter.

Among other findings, the court in the Gillespie disciplinary proceeding found that Gillespie (1) inflated his hours in many fee petitions, (2) never discussed the terms of any settlement agreements with his clients (instead giving them to his investigator/“expert”, Daniel Pezza, to collect signatures), (3) dismissed over 100 pending ADA lawsuits before his disciplinary hearing without consulting with his clients who were the plaintiffs in the actions, and (4) made payments to his investigator and so called “expert” Pezza who also happened to be the father of Laufer’s grandchild, thereby raising the possibility that Gillespie was inappropriately sharing fees with Laufer, in violation of ethics rules.  The Report stated that the “arrangement smacks of purchasing an interest in the subject matter of the litigation in which the lawyer is involved” and was, therefore, “highly problematic.”  However, as Laufer’s relationship with Pezza did not come to light until the end of the investigation, the Court did not make any findings on whether Laufer received any money from Pezza.  Laufer submitted a Declaration in the SCOTUS matter denying that she ever received money from Pezza.

The Report is a must-read for lawyers representing ADA Title III serial plaintiffs as the Court examined in great detail the types of questionable practices that should be avoided, such as the making of demands for attorneys’ fees in settlement agreements that are much higher than the fees actually incurred.  Gillespie tried to argue that his inflated fee demands represented future fees to be incurred for monitoring compliance, but the court was not persuaded.

Returning to the pending lawsuit before SCOTUS, it is unclear whether the Court will dismiss this case – the first ADA Title III case to reach the high court in eighteen years — because it is moot.  While that is the most likely outcome under ordinary circumstances, the unsavory facts surrounding Laufer’s mass voluntary dismissal, along with the sharp conflict among the Courts of Appeals concerning the standing of ADA Title III “testers” to assert claims, present a strong case for SCOTUS to move forward with its review. 

Stay tuned for developments.

Edited by Kristina Launey and John Egan

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

Seyfarth Synopsis:  We predict another busy year on all fronts as DOJ continues to push its regulatory and enforcement agenda.

Photo showing hand holding a crystal ball

Lawsuit Numbers.  Last January, we predicted that roughly the same number of ADA Title III lawsuits would be filed in federal court in 2022 as in 2021, but halfway through 2022 it became apparent that the numbers would likely be substantially lower.  That downward trend continued, and while our diligent research department is waiting for the dust to settle for December numbers before we announce the total for 2022, we are certain that the final number for the whole year will be substantially less than the number of ADA Title III lawsuits filed in 2021.  We attribute that decrease in part to the fewer number of filings by one Southern California plaintiffs’ firm (the Center for Disability Access), after the Los Angeles and San Francisco District Attorneys filed a civil lawsuit against the firm alleging fraudulent conduct in connection with its lawsuit activities.  The trial court dismissed this lawsuit in August 2022, but the newly-elected San Francisco District Attorney filed an appeal in November 2022, so the matter is far from over.  Stay tuned for our final 2022 ADA Title III federal lawsuit count and more analysis in the coming weeks.

For 2023, we think the number of lawsuits filed in federal court will increase as certain plaintiffs’ firms regroup and new plaintiffs and firms continue to enter the scene.

Physical Barrier Lawsuits.  If the past is any indication, lawsuits concerning physical access barriers at public accommodations facilities will continue to be the most common type of ADA Title III lawsuit.  Hotels, shopping centers, restaurants, and retail stores continue to be the most popular targets, particularly for those serial plaintiffs.  We continue to see lawsuits and demands from some serial plaintiffs whose disabilities are highly questionable.  The most common barriers alleged in these lawsuits pertain to accessible parking, loading zones, public restrooms, sales counters, accessible tables, and aisle width.

Website-Related Lawsuits.  In 2022, we continued to see large numbers of private lawsuits filed in federal and state courts, as well as demand letters, about website accessibility. We also saw the beginnings of renewed efforts by DOJ on the regulatory (discussed here and here) and enforcement front concerning accessible websites. A few notable court decisions issued in 2022, including an unceremonious end to the Winn-Dixie and Domino’s sagas, a few pro-defendant standing, class cert, physical nexus, and anti “serial plaintiff” decisions. What does 2023 have in store?  

Website Accessibility Lawsuit Numbers.  We are still finalizing our count of lawsuits filed last year in federal court concerning websites that are allegedly not accessible to the blind, but a preliminary peek suggests that  over 3250 such lawsuits were filed —  a significant jump from 2021. As in prior years, the vast majority of these lawsuits were filed by only a handful of law firms, overwhelmingly based in New York.  We predict the number of these suits filed in 2023 will be comparable to 2022.  We will be taking a closer look at this increase in another post later this month.

“Tester” Standing.  “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 has asked the U.S. Supreme Court to decide in Acheson Hotels, LLC v. Laufer.   The First Circuit Court of Appeals in Acheson had answered this question in the affirmative, putting it at odds with other circuits which have reached the opposition conclusion.  The Second and Tenth Circuits, for example, have held that a plaintiff’s encounter with an ADA violation found on a website of a public accommodation does not automatically confer that plaintiff with standing to sue 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.  

While Acheson is a case about the alleged lack of accessibility information on a website (i.e., a deficient content issue), the question presented is also relevant to lawsuits in which plaintiffs with disabilities claim they could not use/navigate a website due to digital barriers.  In the Second and Tenth Circuits, as noted above, these plaintiffs would have to show that they wanted to patronize the public accommodations but could not because of digital barriers on their websites.

The Supreme Court will decide whether it will hear the case in January 2023.

Online-Only Businesses.  Online-only businesses will likely see fewer ADA lawsuits in California in 2023 because in 2022, the California Court of Appeals agreed with the federal Ninth Circuit Court of Appeals that a “public accommodation” under the ADA must be a physical place where goods and services are offered.  (The California Supreme Court declined review of the decision.)  Thus, only websites that have a nexus to a business with a physical location where goods and services are offered to the public are subject to Title III of the ADA.  With both state and federal courts in California now aligned in their interpretation of the ADA on this issue, plaintiffs will face a significant barrier in suing online-only businesses in California for violations of the ADA or Unruh Act.  (In lawsuits based on disability discrimination, plaintiffs can establish violations of the Unruh Act by proving either a violation of Title III of the ADA or intentional discrimination.)

Hotel Reservations Websites.  In late 2020 and early 2021, the aforementioned Center for Disability Access filed over 550 lawsuits in federal court alleging that hotels had failed to disclose sufficient information about the accessibility of their hotels as required by ADA regulations.  After suffering over 90 defeats in district court and then in the Ninth Circuit Court of Appeals, the firm voluntarily dismissed nearly all of these suits in 2022.  In its decision, the Ninth Circuit endorsed the interpretation of the regulation that had been implemented by lodging industry leaders back in 2012 when the regulation became effective. While we saw a very small handful of these cases filed in 2022, new lawsuits of this type are unlikely because most U.S. hotels comply with the Ninth Circuit’s direction.

U.S. Department of Justice Enforcement Actions. Last January we predicted the DOJ would be busy enforcing the ADA in 2022, and we were right.  The DOJ filed two enforcement lawsuits under Title III:  One concerning architectural barriers at Wrigley Field in Chicago and another against a number of eyecare facilities for refusing to provide transfer assistance to patients who use wheelchairs.  The DOJ also entered into at least fifteen settlement agreements or consent decrees in 2022 resolving many different types of alleged ADA Title III violations. These resolutions included a multi-million dollar settlement with a rideshare app company to resolve claims that the company failed to waive wait time charges for passengers with disabilities, a settlement with a Rhode Island university regarding its student medical leave policies, a settlement with a New York university regarding accessible student housing, and settlements with three retailers concerning the accessibility of their vaccine appointment scheduling websites.  The DOJ also filed one Statement of Interest in which it maintained that plasma donation centers are places of public accommodation covered by Title III of the ADA.

The DOJ was equally busy enforcing Title II of the ADA, which imposes obligations similar to Title III of the ADA on state and local governments.  One of the most notable ADA Title II resolutions was the DOJ’s comprehensive agreement with UC Berkeley about its website and other online content.  Other universities, both public and private, should take note.

All of these enforcement activities are set out on the DOJ’s website.

Regulatory Developments.  We will see continued rulemaking activity by DOJ and the U.S Architectural and Transportation Barriers Compliance Board (Access Board) on website accessibility, medical diagnostic equipment, and kiosks in 2023.

Websites: As we previously reported, the DOJ announced in July 2022 that it would be issuing a Notice of Proposed Rulemaking (NPRM) (essentially, a draft regulation) in April 2023 setting forth the accessibility requirements for state and local government websites under Title II.  This has just been pushed back to May 2023.  Given its dismal track record of issuing any regulations on the subject of accessible website for the past decade (including many missed deadlines), it will be interesting to see if DOJ actually meets this revised target date.  If DOJ does issue proposed regulations for state and local government websites under Title II of the ADA, it is likely the agency will later using those as a framework for regulations covering public accommodations under Title III of the ADA.  

Medical Diagnostic Equipment: DOJ has also announced that it will be issuing a Notice of Proposed Rulemaking for Medical Diagnostic Equipment in April of this year.  This rule, if finalized, would make the Standards for Medical Diagnostic Equipment (MDE) previously issued by the Access Board into binding legal standards for health care providers covered under Title III of the ADA.  Health care providers should be on the lookout for this NPRM and be ready to comment on the proposed rule. 

Self-Service Kiosks: Meanwhile, the Access Board will be busy this year reading public comments filed in response to its Advance Notice of Proposed Rulemaking (ANPRM) on the accessibility of self-service kiosks.  It recently announced that a proposed rule will issue by November 2023.  As we explained in a prior post, the Access Board is responsible for issuing technical standards which are not legally binding on public accommodations until the DOJ incorporates them into its regulations through a separate rulemaking process.  Thus, the Access Board’s ANPRM, and subsequent proposed rule, for self-service kiosks is the first step of a lengthy regulatory process.


2023 will likely be another busy year in the ADA Title III space.  We will be here to provide our insight into the latest developments.  Happy 2023 from The Seyfarth ADA Title III Team!

Edited by Kristina Launey