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U.S. Supreme Court Grants Cert in ADA “Tester” Case

In late March, the United States Supreme Court granted certiorari involving a case that could have a nationwide impact on lawsuits brought under Title III of the Americans with Disabilities Act (“ADA”).  The case, titled Acheson Hotels, LLC v. Laufer, involves a hotel operator (petitioner) and a self-proclaimed ADA “tester” (respondent) and raises the following question:  Does an ADA “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?  In simpler terms, the case addresses whether a person who does not intend to visit a business can sue for failure to provide accessibility information on its website. 

The ADA states that “[i]t shall be discriminatory to afford an individual . . . on the basis of a disability . . . with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”  As permitted under the ADA, the Attorney General also requires hotel owners and operators to identify and describe accessible features offered, which has been referred to as the “Reservation Rule.”  Prevailing parties under the ADA can seek attorney’s fees.

According to the petition to the Supreme Court, the respondent has filed over 600 federal lawsuits since 2018 against hotel owners and operators, alleging that their websites are insufficiently clear about whether the hotels are accessible to persons with disabilities as required by the ADA.  However, the respondent did not intend to stay at any of the hotels she has sued, and thus is considered a “tester.”  There is currently a circuit split as to whether ADA “testers” can meet Article III’s requirement that they face a “plausible” injury that is “concrete and imminent,” which is necessary to establish standing.  The Second, Fifth, and Tenth Circuits have rejected the notion that testers have standing for various reasons, including in cases similar to the respondent’s, where there remains a question about how the information on the defendant’s website is relevant to her given that she had no intention to visit defendant’s hotel. 

Similarly, the Fourth, Sixth, and Seventh Circuits have also held that visually impaired “testers” lack standing to bring claims against certain credit unions for their websites’ purported violations of the ADA; like the aforementioned cases, the plaintiffs either had no intention to patronize the credit unions’ services or were not eligible to do so.

In contrast, the First Circuit, from which respondent’s case emanates, has held that “tester” plaintiffs have standing based on “informational injuries” resulting from a lack of information regarding the accessibility of certain places of public accommodation on various defendants’ websites. Likewise, the Eleventh Circuit has held that a “tester” has standing stemming from “emotional injury that results from illegal discrimination.”

Although Acheson Hotels involves hotel operators, businesses across industries are at risk of being targeted by lawsuits alleging that their websites are not compliant with the ADA.  The outcome of this case therefore has high stakes for any business that operates a website, as such lawsuits can be costly.  In fact, in seeking certiorari, the petitioner alleged that respondent’s lawsuits have primarily targeted small hotel operators which effectively are forced to settle given the high costs of litigating these cases and the attorney’s fees claimed, which tend to be staggering. 

In addition, some states have statutes that enable a litigant to collect damages in addition to attorney’s fees.  In California, disabled persons have historically advanced claims under both the Unruh Civil Rights Act (Unruh) and the ADA to ensure access to physical places of public accommodation.  Unruh provides that “all persons” are entitled to “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”  Unruh enables a plaintiff to recover statutory damages of $4,000 per violation.  In contrast, the ADA only allows a plaintiff to seek injunctive relief and attorney’s fees.  Under certain circumstances litigants are incentivized to sue in California to maximize their damages awards.

In fact, since the 1990s, California courts have been inundated with lawsuits filed under Unruh and the ADA targeting restaurants, hotels, medical facilities, and educational intuitions, among others, to ensure that they have adequate facilities to meet the needs of disabled patrons.  Similar lawsuits have also targeted businesses’ websites alleging that they are not accessible to the hard of hearing and visually impaired.

But a recent California Court of Appeal case, Martinez v. Cot’n Wash Inc. (Cal. Ct. App. 2022) 81 Cal.App.5th 1026, is expected to limit the reach of Unruh lawsuits.  In Martinez, a visually impaired plaintiff sued a cleaning products company that sold products exclusively through its website, alleging that the website was inaccessible to him.  The Court of Appeal clarified that, consistent with the Ninth Circuit Court of Appeals’ interpretation of the ADA, “a place of public accommodation” for purposes of Unruh also must have a nexus to physical place of public accommodation.  Therefore, in California federal and state courts, ecommerce-only merchants are not susceptible to ADA or Unruh claims based on website inaccessibility.  This contrasts with the approach of courts in other federal jurisdictions, including the Second Circuit, which are permissive of such lawsuits even in the absence of a nexus between the website and a physical place of public accommodation.

While the regulatory framework around ADA compliance for websites is vague about what a website owner or operator must do to make its website compliant, most courts and litigants have coalesced around the Web Content Accessibility Guidelines (WCAG) 2.1 as the de facto compliance standard.

If you have questions concerning legal requirements in your jurisdiction or how to go about remediating a website or developing and implementing other accessibility policies, contact the Mintz Class Action team.

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Todd Rosenbaum

Member / Co-chair, Class Action Practice

Todd Rosenbaum is a Mintz litigator whose practice encompasses general commercial litigation, securities litigation, white collar criminal defense, government enforcement matters, and internal investigations. Todd represents clients at trial and appellate courts as well as arbitration.

Adam B. Korn

Sebastian A. Navarro is an Associate at Mintz who focuses his practice on complex civil litigation before state and federal courts. He works with clients across a variety of sectors, including real estate and education.