Monitoring Legal Tester Claims – So What’s Next for New Hampshire Businesses?

Brian Garrett headshot
Brian B. Garrett
Director, Litigation Department and Chair, Education Law Practice Group
Published: New Hampshire Business Review
January 12, 2024

Retail businesses and other public accommodations were denied much-needed guidance after the U.S. Supreme Court recently dismissed a case involving a serial “tester” plaintiff.  The disabled plaintiff, Deborah Laufer, had sued hundreds of hotels across the country, including numerous hotels in New England, alleging various violations of accessibility under the Americans with Disabilities Act (the “ADA”).  There was, however, a catch:  Laufer had no intention of actually staying at any of the hotels she sued.

Despite that catch, Laufer was incredibly successful in her suits.  Indeed, Laufer single-handedly created a split among U.S. federal circuit courts as to whether a legal “tester” has legal standing to sue places of public accommodation.  The Supreme Court initially agreed to hear the case—however, unforeseen circumstances discussed further below rendered the case moot, providing the Court with cover to toss the case.  As a result, all businesses must continue to navigate the uncertain legal terrain against other potential legal testers.

This article discusses the framework for Laufer’s cases and the basis for the Supreme Court’s (lack of a) decision, and then outlines practical steps businesses can take to protect themselves from copycat legal testers.

Laufer’s Winding ADA Lawsuits

Title III of the ADA prohibits discrimination against disabled individuals by any places of public accommodation, such as hotels, restaurants, independent schools, retail stores, or theaters.  Disabled guests who visit those public businesses must be provided the same access to the property, goods, and services as are offered to non-disabled guests.

Laufer, who uses a wheelchair, claimed that hotels across the country violated the ADA by failing to provide sufficient information on their websites regarding accessibility accommodations.  Laufer never actually visited the hotels, let alone booked a room or denied services—indeed, she never even notified the businesses of the problematic issues.  The ADA, however, does not require such physical presence or notice in order for a claimant to have standing, exposing the law to potential abuse.

The hotels Laufer sued predominantly settled the claims out of court; others that contested the claims often were unsuccessful in dismissing her claims for lack of standing—including cases heard in the U.S. Court of Appeals for the First Circuit, which covers New Hampshire.  An entire body of caselaw developed nationwide out of Laufer’s pursuits, ultimately leading to the Supreme Court granting a petition to hear one such case involving a Maine hotel.

After the Supreme Court agreed to hear the case, the matter took an unexpected turn.  A federal court in Maryland suspended Laufer’s attorney from practicing law for defrauding hotels by lying in fee petitions and during settlement negotiations, among other alleged misconduct.  As a result of the court’s sanctions order, Laufer voluntarily dismissed her pending lawsuits—including the one in front of the Supreme Court—and asked the Supreme Court to render the case moot.  The Supreme Court, in a unanimous decision, obliged.

Practical Steps for New Hampshire Businesses

Businesses in New England are particularly vulnerable to potential tester claims since the First Circuit has already ruled favorably on Laufer’s claims.  Therefore, such businesses would be wise to develop a plan to protect themselves from similar suits, with the understanding that they may never be fully immune.  Here are three steps business should consider taking:

  1. Conduct an ADA Compliance Audit.   As a first measure, businesses should review their physical premises and digital presence to determine whether they are in compliance with ADA standards and requirements.  Businesses can engage professionals with ADA expertise to assess these various landscapes, including general accessibility compliance. Consistent adherence to these standards can significantly reduce the likelihood of successful claims.
  2. Review and Update Policies. Companies should regularly review and update policies and procedures regarding ADA compliance.  Such policies should cover issues like handling customer accommodation requests, architectural barriers, and website accessibility.  These policies can be made readily available to employees and customers alike, thereby demonstrating a commitment to inclusivity and compliance.
  3. Employee Training. Even after engaging in comprehensive audits of policies and physical/digital premises, a business’ employees remain the front line for inquiries or issues relating to disabled customers.  Accordingly, companies should invest in employee training and education regarding how to handle accommodation requests consistent with the company’s policies and capabilities, and compliance with the law.  In addition, there should be open communication among employees and supervisors to promptly address customer concerns as a team.

Businesses should continue to monitor other legal “tester” claims, as similar lawsuits are quite likely to wind through the courts in the near future.  With luck, a future claim can provide more definitive guidance to companies.