A US Supreme Court case involving a “tester” plaintiff suing a hotel she had no intention of visiting for disability discrimination is raising fears that many similar suits could follow if the Supreme Court rules in her favor.
A pro-plaintiff ruling could also hurt many businesses that have an online presence, experts say.
While the plaintiff’s lawyer in the case — Acheson Hotels LLC v. Deborah Laufer — is optimistic about a positive decision, some labor lawyers believe the court will rule in the company’s favor.
The Supreme Court accepted the case in March, after the First U.S. Circuit Court in Boston overturned a U.S. District Court̵7;s dismissal of it, finding that Laufer had suffered “a concrete and particular injury,” giving her the right to sue under the Americans with Disabilities Act, even unless she planned to visit The Coast Village Inn and Cottages in Wells, Maine. An argument date had not been set.
The courts are divided on whether so-called testers can sue for disability discrimination. In addition to the 1st Circuit, the 11th US Circuit Court of Appeals in Atlanta and the 4th US Circuit Court of Appeals in Richmond, Virginia ruled in Laufer’s favor in separate cases.
However, the 2nd US Circuit Court of Appeals in New York ruled against another plaintiff in a similar case, and the 5th US Circuit Court of Appeals in New Orleans, the 10th US Circuit Court of Appeals in Denver and the US The Court of Appeals, District of Columbia Circuit, has ruled against Laufer in other cases.
The Supreme Court has previously ruled against a tester in a related matter. 1982, i Havens Realty Corp. v. Colemanthe Supreme Court ruled that a black tester who was investigating where he could rent an apartment had standing to sue.
“There is a very good chance they will rule in favor of the hotels, either by divorcing this case Haven’s or overthrow it altogether, says Kian Hudson, who is of counsel at Barnes and Thornburg LLP in Indianapolis.
The potential implications of the case are broad and extend beyond the disability discrimination context, he said. The question the court must resolve is whether the plaintiff can win damages for a technical breach or whether they need to show additional damage.
“The Supreme Court has taken different views on what actual harm means in different contexts, so it’s hard to know” how the court will decide the issue, said Steven J. Wells, a partner with Dorsey & Whitney LLP in Minneapolis. But “it would take a fairly broad reading of standing to find for the plaintiff,” he said.
David Raizman, a partner with Ogletree Deakins Nash, Smoak & Stewart PLC, said: “It is encouraging that the court is taking the case, and it may indicate that some of the justices may have some discomfort with a broad view of the testator’s position, but it it would be foolish to make too many predictions at this stage.”
Corporate lawyers say a decision in the tester’s favor would have far-reaching consequences.
Ruling in Laufer’s favor would “open the floodgates for lawsuits of all kinds,” said Minh N. Vu, a partner with Seyfarth Shaw LLP in Washington, who said she expects the Supreme Court to reverse the First Circuit.
“This case has profound implications for future problems that we will face in the digital age of the Internet,” said Sarah Elizabeth Spencer, an attorney at Christensen & Jensen PC in Salt Lake City, noting the extent to which people have access to the Internet for information and services. Ms. Spencer filed an amicus brief in support of Acheson Hotels with the Supreme Court on behalf of the Chicago-based DRI Center for Law and Public Policy, an advocacy group.
“Had Laufer shown up at Acheson’s hotel as a tester with bags in hand and asked about accessibility features, that’s very, very different,” Spencer said. This issue “is a slippery slope,” she said.
Laufer’s admission that she had no intention of going to the hotel means there will never be any likelihood of harm, said Sara H. Jodka, a member of Dickinson Wright LLP in Columbus, Ohio. “Our courts are not designed to deal with hypothetical disputes,” she said.
Martin H. Orlick, a partner with Jeffer, Mangels, Butler & Mitchell LLP in San Francisco, said he expects the Supreme Court to “require a higher burden” in these cases, where plaintiffs “have to come up with some concrete plans.” such as airline tickets, before filing a disability discrimination lawsuit.
Laufer’s attorney, Thomas B. Bacon, of Thomas B. Bacon PA in Orlando, Fla., said he is optimistic about the verdict. “The number of lawsuits out there is a direct result of everyone waiting until they get sued” before correcting disability discrimination cases, he said.