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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 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.