Supreme Court Justice Neil Gorsuch (left) talks with Chief Justice John Roberts on the steps of the Supreme Court following his official investiture at the Supreme Court on June 15, 2017, in Washington, DC. | Win McNamee/Getty Images
The Supreme Court hears a civil rights case straight out of a right-wing fever dream.
Deborah Laufer has filed more than 600 different lawsuits — many of which, according to a federal court in Maryland, appear to follow the same pattern. The defendants are typically small hotels, and Laufer accuses them of failing to comply with a federal regulation requiring that they disclose on their websites whether their rooms are accessible to people with disabilities.
She also has a remarkable penchant for hiring ethically challenged lawyers. One, Tristan Gillespie, was suspended from the bar of that same Maryland court, in large part because of a scheme where he would use Laufer’s cases to squeeze money out of these hotels for work that he never did. Another, Thomas Bacon, was, according to the court, Gillespie’s “boss” and the mastermind of a “scheme that raises serious ethical concerns.” Another former lawyer, Daniel Ruggiero, was recently forbidden from practicing law for a year due to an unrelated scheme targeting homeowners with unpaid mortgage bills.
Acheson Hotels v. Laufer, one of Laufer’s many cases, is now before the Supreme Court. (The case will be argued on October 4.) It reads like the sort of horror story that business lobbyists tell lawmakers in order to sell them on tort reform. It involves a perennial plaintiff and lawyers who appear to have profited from a scheme to shake down small business owners — at least one of whom, Gillespie, is the subject of a blistering federal court opinion disciplining him for unethical behavior.
But behind the absurd facts underlying the case are fairly high stakes. They involve “testers,” civil rights plaintiffs who volunteer to face discrimination so that someone may challenge a discriminatory business’s behavior in court. There are very good reasons why Laufer — whose many lawsuits more than push the limits of the federal courts’ jurisdiction — should not be allowed to file these suits. But, in the worst-case scenario for civil rights advocates, a Supreme Court dominated by conservative Republicans may not only shut down Laufer’s vast array of lawsuits. They may also do considerable harm to civil rights writ large.
It’s hard to assess how likely this outcome is, beyond the fact that the current crop of justices frequently changes the law to benefit conservative causes. But there is, at least, a real risk that a majority of the justices are so angered by Laufer’s blizzard of lawsuits, and by the behavior of some of her lawyers, that they hand down a far-too-sweeping decision cutting off many meritorious challenges to discrimination.
“Testers,” briefly explained
In Havens Realty v. Coleman (1982), the Supreme Court considered a fairly ordinary case involving “tester” plaintiffs. A civil rights organization sent two individuals, one Black and one white, to “test” whether two apartment complexes would discriminate between these two individuals. Sure enough, the white tester was told that apartments were available for rent, while the Black tester was allegedly lied to and told that no units were available.
As a general rule, no one is allowed to file a federal lawsuit unless they have been injured in some way by the defendant they are suing — a requirement known as “standing.” Havens Realty held that the Black tester had standing to sue the apartment complexes because she was allegedly treated differently than white testers, a classic case of racial discrimination.
These testers are often the best, or even the only, way to smoke out discrimination that may otherwise go undetected or unsanctioned. Most families that inquire about renting an apartment will simply walk away if they are told that none are available. Even if they suspect discrimination, moreover, they are unlikely to be able to prove it unless they happen to know about a family of a different race that received a different response from the same landlord. And even if they are sure that they were turned away unlawfully, they may not be willing or able to track down a lawyer and file a lawsuit.
Laufer, for her part, claims she is no different than the testers in the Havens Realty case.
A federal regulation, known as the “Reservation Rule,” requires hotel websites to “identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” Not all hotels are actually required to offer accessible rooms, but this regulation is supposed to ensure that no one books a room and travels to a faraway town, only to learn that they cannot use the room they’ve booked.
Laufer’s brief describes her as a “Reservation Rule ‘tester’” who “tests online hotel reservation systems for compliance independent of travel plans, and then seeks injunctions requiring noncompliant hotels to abide by the Rule.” Essentially, she searches the internet for hotel websites that don’t comply with the Reservation Rule, and then files lawsuits against hotels that do not adequately lay out how accessible their rooms are.
Significantly, Laufer does not appear to have any intention to actually stay in most of these hotels.
The lawyers representing her in the Supreme Court (who, to be clear, are not the same lawyers who’ve been accused of unethical behavior while representing her) argue that Laufer’s actions are “legally indistinguishable from the standing challenge this Court rejected in Havens Realty.” Similarly to Laufer, the testers in Havens Realty “had no intent to rent an apartment in the complex, but rather inquired for the purpose of testing whether the realtor would provide her with accurate information.” And yet the Supreme Court determined that these testers had standing to sue in Havens Realty.
But there is one very important difference between Laufer and the Havens Realty testers. The Supreme Court has long held that litigants do not have standing to raise “generalized grievances” in federal court — that is, a federal plaintiff must not only assert that the defendant has injured them in some way, they must also allege that they’ve been injured in some way that is not shared by the public at large. As the Court put it in Lujan v. Defenders of Wildlife (1992), this injury must be “particularized.” It must be specific to the actual plaintiff.
In Havens Realty, the Black tester made an inquiry to a specific landlord and was allegedly lied to because of her race. That’s a particularized injury, specific to this one individual, and not shared by other people.
Laufer, by contrast, alleges that she is unable to find information online that is also unavailable to everyone else in the world. Thus, under cases like Lujan, she does not have standing to bring her lawsuits, absent something more.
There should be no question, in other words, that the Supreme Court will dismiss the Acheson Hotels case because Laufer lacks standing. The question is whether the Court will use this case as a vehicle to roll back standing for testers who bring stronger cases where, like the Black tester in Havens Realty, they experienced an injury that isn’t shared with millions of other people.
This dispute over Reservation Rule testers exists because of a poorly drafted statute
Because the Constitution does not permit federal courts to hear cases where the plaintiff lacks standing, Laufer’s case must be dismissed. But such a decision is likely to take an already weak regime protecting travelers with disabilities and make it even weaker. Indeed, the reason why Laufer filed so many lawsuits — and why some of her lawyers may have behaved unscrupulously in order to make sure they got paid for representing her — most likely lies in a poorly drafted provision of the Americans with Disabilities Act that gives disabled travelers few good options to deal with hotels that flout the Reservation Rule.
The ADA permits a plaintiff challenging a violation of this rule to obtain an injunction requiring a non-compliant hotel to fix its website, and it allows that plaintiff to have their attorney’s fees paid by the defendant if the plaintiff prevails in court. But the plaintiff may not obtain money damages if they prevail.
Thus, a hypothetical disabled plaintiff who flies across the country, only to discover that their hotel cannot provide them with an accessible room, will get nothing. They will not be reimbursed for the cost or inconvenience of finding a new room, or for the humiliation of being turned away from a hotel that promised to give them shelter. At most, they might obtain an injunction requiring the hotel to update its website in the future. (Because of the strict rules limiting who is entitled to seek an injunction in federal court, they might not even be entitled to that limited relief.)
As Laufer’s current legal team argues in its brief to the Supreme Court, “because Title III[ of the ADA’s] private cause of action is limited to injunctive relief, suing to enforce the Reservation Rule is essentially useless to a disabled traveler who encounters a noncompliant reservation website while looking for a room based on imminent travel plans, as no injunction could be entered in time to help.” Laufer says that, as a tester, she hopes to mitigate this problem by pressuring hotels to fix their websites in advance.
Meanwhile, lawyers who represent ADA plaintiffs need to get paid, and there’s little honest money to be made representing plaintiffs seeking to enforce the Reservation Rule.
Consider the scheme that led to attorney Tristan Gillespie, who represented Laufer in hundreds of her lawsuits, being suspended by a federal court. According to an investigation conducted by that court, Gillespie filed hundreds of nearly identical lawsuits against noncompliant hotels, and then immediately sent them letters offering to settle the entire case for “a flat attorney fee of $10,000.” But Gillespie did not do anywhere near $10,000 worth of legal work in each of these cases. He mostly just “plug[ed] the hotel information into a template complaint, allowing him to generate pleadings at a rapid pace.”
As the investigation determined, “Gillespie routinely bills ‘at least 3.9 [hours] of attorney time’” for performing this very brief task. “On the day that Gillespie filed sixteen cases, Gillespie represented in three subsequent fee petitions that he spent 4.9 hours, 4.9 hours, and 3.9 hours drafting the complaints, for a total of 13.7 billable hours.” It’s simply not credible that he spent anywhere near this amount of time on these cases.
At the same time, however, if lawyers don’t inflate their fees then it’s unlikely that they will be willing to represent plaintiffs bringing Reservation Rule cases — because they will be paid virtually nothing for each case. Scrupulous lawyers figure out very quickly that they cannot earn a living litigating Reservation Rule cases, and so the rule goes largely unenforced.
The ADA’s weak remedies for Reservation Rule violations, in other words, basically guarantee that either the rule will not be enforced at all, or, at least, that it will be enforced largely through lawsuits filed by lawyers willing to act — shall we say, “creatively” — to ensure that they get paid. Plaintiffs who are actually injured by a rule violation have little incentive to sue, and good lawyers have no incentive to represent such plaintiffs because they will earn barely any money for doing so.
Congress could fix this imbalance by allowing injured plaintiffs to seek money damages. Or it could fund a team of lawyers and investigators at the Justice Department who could file their own suits challenging violations of the Reservation Rule. Until that happens, however, the rule is likely to remain a paper tiger.
Again, none of that changes the fact that, under the Constitution, Laufer does not have standing to bring hundreds of different lawsuits against hotels she never plans to visit. But the absurd facts underlying Acheson Hotels did not arise from sheer random happenstance. They are the result of a poorly designed policy.
Why shouldn’t the courts just let this one slide?
Because a decision denying standing to Laufer could render the Reservation Rule even more toothless than it already is, it’s worth asking why the courts shouldn’t just loosen the rules governing standing to ensure that disabled travelers have some meaningful protection. What’s the value in policing the rules governing standing, if doing so turns important legal protections into something much more hollow?
One answer is that disabled plaintiffs like Deborah Laufer aren’t the only people pushing the limits of federal courts’ jurisdiction right now. And, if the Supreme Court takes a too-expansive approach to standing, the benefactors are unlikely to be civil rights plaintiffs and their lawyers.
Consider California v. Texas (2021), a case where a notoriously partisan judge attempted to repeal the entire Affordable Care Act. The plaintiffs’ legal theory in Texas was truly audacious. They claimed that a provision of Obamacare that literally does nothing at all is unconstitutional, and that the proper remedy for this alleged constitutional violation is to strike down the Affordable Care Act in its entirety.
While several lower court judges took this argument far more seriously than it deserved, seven justices did not. These justices correctly realized that no one has standing to file a lawsuit challenging a statutory provision that does nothing, because no one is injured by a statutory provision that does nothing.
Take away the rule that federal plaintiffs may not bring generalized grievances, however, and it’s unclear that the Supreme Court reached the correct result. If Laufer can sue because she worries about hotels that might harm other disabled people, why can’t anti-Obamacare plaintiffs file similar lawsuits because they worry that this law is bad for the country?
Similarly, consider Judge James Ho’s concurring opinion in Alliance for Hippocratic Medicine v. FDA (2023), the case where several right-wing judges attempted to ban the abortion drug mifepristone. Ho claimed that anti-abortion doctors have standing to challenge the FDA’s approval of this drug because “doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted.”
Alliance is a quintessential case involving a generalized grievance. It is a lawsuit filed by anti-abortion doctors who are mad that abortions exist, and who want the courts to make them harder to obtain. But, under Ho’s theory, these doctors can sue based solely on their belief that a world with abortions in it is more ugly.
The point is that, if the courts start relaxing the rules governing standing to benefit disabled plaintiffs like Laufer, many litigants will take advantage of those new rules — including litigants who want to use the courts to impose their right-wing views on the rest of the country. And, in a judiciary controlled by Republicans, these reactionary plaintiffs are far more likely to prevail than someone seeking to make the hotel industry more friendly to disabled travelers.
Historically, Democratic judicial appointees have tended to support more expansive theories of standing, while Republican appointees have tended towards making it hard to file federal lawsuits. In the past, this alignment made sense because the Democratic coalition includes civil rights lawyers, and other plaintiff-side advocates who both benefit from expansive standing rules and hope to use these rules to vindicate the rights of the most vulnerable.
But, as Ho’s Alliance opinion and the Texas litigation suggests, this partisan alignment is shifting. As University of Virginia law professor Richard Re notes in a recent paper, Justice Samuel Alito, the most reliable Republican partisan on the Supreme Court, “may be a more likely vote for standing than, say, [liberal] Justice Kagan.” Many Republican-appointed judges are eager to expand the power of the federal judiciary, now that they control it.
Re also asks whether liberals and conservatives are experiencing a “standing realignment,” where the former push for tighter restrictions on who can file a federal lawsuit as those lawsuits increasingly become tools of the right.
It’s probably too soon to predict whether such a realignment will occur. For now, the civil rights bar appears to be standing up for Laufer’s expansive standing theory, and plaintiff-side lawyers remain a strong presence in Democratic politics — and will likely play an outsize role in helping Democratic presidents choose judges for the foreseeable future.
But if judges push broad theories of standing, the biggest winners are not likely to be disabled people like Laufer. They are much more likely to be the far-right advocates behind cases like Texas and Alliance.