- The Supreme Court heard oral arguments Wednesday in Acheson Hotels, LLC v. Laufer, which considers whether an Americans with Disabilities Act (ADA) “tester” can bring lawsuits against hotels she does not intend to visit.
- The parties agreed there was no longer a live dispute, causing Ketanji Brown Jackson to question why they should “take on extra work” to address the question involved.
- Deborah Laufer asked the justices in July to deem her case moot after one of her lawyers, Tristan Gillespie, earned a six month suspension from the U.S. District Court for the District of Maryland bar for making misrepresentations to hotels during settlement negotiations.
All parties involved in the Supreme Court’s disability “tester” case agreed the dispute was “dead as a doornail,” leaving the justices wondering whether they should “take on extra work” to address the question at hand.
The Supreme Court heard oral arguments Wednesday for Acheson Hotels, LLC v. Laufer, which considers whether an Americans with Disabilities Act (ADA) “tester” can sue a hotel for failing to offer disability accommodations without ever visiting. But the justices were also faced with another issue: both sides of the case agreed there was no longer a controversy because the claims had been resolved and dismissed.
The plaintiff, Deborah Laufer, targeted over 600 hotel owners and operators with ADA lawsuits. In a move opponents characterized as an attempt to duck Supreme Court review, Laufer asked the justices in July to deem her case moot after one of her lawyers, Tristan Gillespie, earned a six month suspension from the U.S. District Court for the District of Maryland bar for making misrepresentations to hotels during settlement negotiations.
A disciplinary panel found in June that Gillespie — who demanded $10,000 in attorney fees to settle each case — routinely inflated the hours spent on hundreds of “boilerplate” complaints against hotels. Further complicating the matter, Acheson Hotels had updated its website to be ADA compliant.
“You’re asking us to take on extra work to end a case, when we all agree it has to be ended,” Justice Ketanji Brown Jackson told Attorney Adam Unikowsky, representing Acheson Hotels. She suggested the court could just vacate the lower court’s decision and dismiss the suit, without deciding whether Laufer had standing.
“I think the Court, apologies, should take on the extra work, Your Honor,” Unikowsky said. “The Court should have institutional concerns about abandoning cases at the last minute, especially if it’s going to set a template for future plaintiffs to do the same thing.”
Chief Justice John Roberts seemed to agree, expressing concern about plaintiffs’ “manipulating” the court’s docket.
“I’m as concerned as anybody about our workload,” Roberts said. “But which one is easier?…I think it’s a difficult question, particularly when you have a program of litigation like this around the country with people who may or may not have standing, [who] can manipulate the court’s jurisdiction right after the court has granted cert, mooting out the case.” (RELATED: Supreme Court To Hear Cases Challenging Red State Anti-Censorship Laws)
WASHINGTON, DC – JANUARY 31: A man walks up the steps of the U.S. Supreme Court on January 31, 2017 in Washington, DC. Later today President Donald Trump is expected to announce his Supreme Court nominee to replace Associate Justice Antonin Scalia who passed away last year. (Photo by Mark Wilson/Getty Images)
Leaving aside the fact that the case was “dead, dead, dead” — as Justice Elena Kagan put it — the justices eventually sought answers on the standing question.
In 1982, the Supreme Court ruled in Havens Realty Corp v. Coleman that testers could sue under the Fair Housing Act (FHA) over racial discrimination by landlords, even when they do not intend to rent the unit. The justices posed a number of hypotheticals trying to tease out how the precedent may apply in the digital world, where those visiting websites are not independently and directly asking for information.
Laufer’s lawyer, Kelsi Corkran, argued that more than a lack of information was at play: her dignity is harmed when businesses fail to provide such information, rendering her “invisible” and excluded from the marketplace.
Previously, a federal district court in Maine dismissed Laufer’s lawsuit based on lack of standing, while the First Circuit allowed it to proceed, finding her “feelings of frustration, humiliation, and second-class citizenry” were sufficient to sue.
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