Walter Olson
The Supreme Court today hears oral argument in Acheson Hotels v. Laufer, in which it will decide 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.
The constitutional breadth of Article III standing aside, the case is one that Congress could have long ago have defused simply by clarifying that a consumer who lacks genuine intent to patronize a business, or who could have gotten a defect in accessibility fixed on simple request to the business, has not suffered a cognizable legal injury from the problem.
In the meantime, the case spotlights the enduring phenomenon of mass‐production ADA complaint mills, which may file hundreds of lawsuits against Main Street or online businesses with cookie‐cutter complaint language, demanding a sum of money to go away that is often related to the cost of legal defense. While this is dressed up for its visit to the high court as “tester” litigation, it tends to be a good bit more cash‐driven than the activities of, say, law school clinics that send so‐called testers to apply for apartment vacancies to see whether landlords are treating applicants of one race less well.
I’ve written about ADA filing mills often at this site over the past decade. Here are a few examples: “New York Times Covers ADA Shakedown Lawsuits;” “Clint Eastwood, Lawyers, and the ADA;” “ADA’s Assault on the Web: Your Turn, Congress;” and “Lawyers Sue Retailers for Not Putting Braille on Gift Cards.”
Those in search of a deeper dive on the subject should check out my Cato blog Overlawyered, which ran from 1999 to 2000 and at which ADA filing mills were a recurring theme through a hundred or more posts.