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U.S. Supreme Court Building
United States Supreme Court Building

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 Circuit. The situation is somewhat unclear in the First and Eleventh Circuits because – while those circuits had adopted a less demanding standard – the decisions adopting that standard have both been vacated on mootness grounds.  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.

MV at SCOTUS
Minh Vu at the Supreme Court of the United States

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.

Graphic of three judges.

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

tingey-injury-law-firm-DZpc4UY8ZtY-unsplash
The statue of justice Themis or Justitia

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

pexels-sora-shimazaki-5669619
Picture of scale and gavel.

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

By Kristina M. Launey, Minh N. Vu, and Susan Ryan

Seyfarth Synopsis: In 2023, the number of ADA Title III lawsuits filed in federal court declined but still exceeded 8,200 for a second year in a row.

From 2013 to 2021, federal court ADA Title III case filings climbed steadily to a staggering 11,452 in 2021.  The number of filings fell dramatically by 24% in 2022, and then declined another 5% to 8,227 in 2023.  That said, this is still a very big number and triple the number of cases filed in 2013 when we first started tracking these lawsuits.

Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023.

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023: 2013: 2,722; 2014: 4,436 63% increase over 2013; 2015: 4,789 8% increase over 2014; 2016: 6,601 38% increase over 2015; 2017: 7,663 16% increase over 2016; 2018: 10,163 33% increase over 2017; 2019: 11,053 9% increase over 2018; 2020: 10,982 1% decrease from 2019; 2021: 11,452 4% increase over 2020; 2022: 8,694 24% decrease from 2021; 2023: 8,227 .5% decrease from 2022]

For the second year in a row New York led the country in ADA Title III federal filings with 2,759 cases.  California came in second again with 2,380 filings, and Florida stayed in third place, with 1,415 cases.  Of these top three states, Florida was the only one that saw an increase in the number of federal suits from 2022 to 2023. 

Rounding out the top ten were Texas (224), Illinois (202), Pennsylvania (189), Tennessee (134), Missouri (121), Georgia (120) and New Jersey (115).  All of these states had fewer filings than in 2022, except for Illinois and New Jersey – both of which recorded their highest number of ADA Title III case filings since we began tracking filings in 2013.

Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2023 – December 31, 2023

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2023 – December 31, 2023:  New York: 2,759; California: 2,380; Florida: 1,415; Texas: 224; Illinois: 202; Pennsylvania: 189; Tennessee: 134; Missouri: 121; Georgia: 120; New Jersey: 115]

Two states leaving the Top 10 were Colorado and Massachusetts.  Colorado plummeted to only 33 cases, and Massachusetts saw 57 filings.  New to the Top 10 chart are Illinois and New Jersey.

At the other end of the spectrum, Alaska, Montana, Nebraska, North Dakota, South Dakota, West Virginia and Wyoming had no filings in 2023.  Each year, we have a slightly different list of states, but North Dakota wins the award for no ADA Title III filings going back to 2013. 

California, New York, Florida ADA Tile III Federal Lawsuits 2013-2023.

[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2023: California: 2013: 995; 2014 1,866; 2015: 1,659; 2016: 2,458; 2017: 2,751; 2018: 4,249; 2019: 4,794; 2020: 5,869; 2021: 5,930; 2022: 2,519; Florida: 2013: 816; 2014: 1,553; 2015: 1,338; 2016:1,663; 2017: 1,488; 2018: 1,941; 2019: 1,885; 2020: 1,208; 2021: 1,054; 2022: 1,350; New York: 2013: 125; 2014: 212; 2015: 366; 2016: 543; 2017: 1,023; 2018: 2,338; 2019: 2,635; 2020: 2,238; 2021: 2,774; 2022: 3,173; 2023: 2,380, 2,759, 1,145]

January (571) and December (553) were the least busy times for filings.  Considering the number of holidays at that time of the year, and the potential for bad weather in many parts of the US, that’s not surprising.  However, January 2022 was very busy with 850 filings.  August (842) was the busiest month of 2023, followed by March (774) and June (769) – both consistently high filing month in prior years as well.  Filings remained steady throughout the year, and consistent with the highs and lows of 2022 in roughly the 550-850 per month range.

Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2023 – December 31, 2023.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2023 – December 31, 2023: January: 571; February: 714; March: 774; April: 635; May: 618; June: 769; July: 704; August: 842; September: 703; October: 713; November: 631; December: 533]

What to make of this data?  Are ADA Title III filings going to continue to slow year over year? Or are we seeing the start of a plateau? Or will numbers come roaring back in 2024, making 2022 and 2023 the outliers?  Only time will tell, obviously, but here’s our thinking.

First, while we do not track state court lawsuit filings due to less reliability in reporting sources, we know anecdotally and from experience that some of the largest filers have moved to filing in state courts instead of federal courts.  We saw this in New York, in California, and even in states not historically high in Title III lawsuits like New Jersey.  The continued decrease in California filings is particularly striking (from an all-time high of 5,930 in 2021 to 2,380 in 2023).  We think there are a number of factors that have contributed to the decrease.  First,  many California federal judges are routinely dismissing state law claims for damages that plaintiffs like to add to their ADA lawsuits on the theory that they are an end run around more stringent state court filing requirements.  These actions have made federal court a less attractive venue for plaintiffs seeking to recover damages which cannot be obtained under the ADA.  Second, a prolific Southern California plaintiff’s firm split up several years ago resulting in fewer filings.   

In Florida, a prolific law firm stopped filing cases after one of its attorneys became the subject of a disciplinary proceeding and was 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.  Nationwide, it is quite possible that we’ll see an uptick in filings this year now that the SCOTUS punted on deciding whether plaintiff testers have standing to sue in Acheson v. Laufer.  SCOTUS will have another chance to consider the issue if it grants the Petition for Certiorari in Langer v. Kisor, however.

A note on our methodology: Our research involves a painstaking manual process of going through all federal cases that were coded as “ADA-Other,” manually culling out the ADA Title II cases in which the defendants are state and local governments, and categorizing them by state.  The manual process means there is the small possibility of human error.

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.