Amicus Curiae Brief — Acheson Hotels, LLC, Petitioner v. Deborah Laufer

No. 22-429

In the Supreme Court of the United States

________________________________________

ACHESON HOTELS, LLC, PETITIONER

v.

DEBORAH LAUFER

________________________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

________________________________________

BRIEF OF RETAIL LITIGATION CENTER, INC.,

AND NATIONAL RETAIL FEDERATION AS

AMICI CURIAE SUPPORTING PETITIONER

________________________________________

Deborah R. White

RETAIL LITIGATION

CENTER, INC.

99 M St. SE, Ste. 700

Washington, DC 20003

Counsel for Retail

Litigation Center

Shay Dvoretzky

Counsel of Record

Parker Rider-Longmaid

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave. NW

Washington, DC 20005

202-371-7000

Stephanie Martz

shay.dvoretzky@skadden.com

NATIONAL RETAIL

Counsel for Amici Curiae

FEDERATION

1101 New York Ave. NW Michael W. McTigue Jr.

Washington, DC 20005 Meredith C. Slawe

Jeremy Patashnik

Counsel for National

SKADDEN, ARPS, SLATE,

Retail Federation

MEAGHER & FLOM LLP

Jason D. Russell

One Manhattan West

SKADDEN, ARPS, SLATE

MEAGHER & FLOM LLP New York, NY 10001

Counsel for Amici Curiae

300 South Grand Ave.

Los Angeles, CA 90071

Counsel for Amici Curiae

i

QUESTION PRESENTED

Does a self-appointed Americans with Disabilities

Act “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?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........................................i

TABLE OF AUTHORITIES ....................................... iv

INTERESTS OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 2

ARGUMENT................................................................ 4

I.

The decision below is wrong and sets a

dangerous precedent because self-inflicted

“frustration and humiliation” alone do not

confer standing. ..................................................... 4

A. Basic standing principles do not allow

federal courts to hear a case just

because the plaintiff alleges “frustration

and humiliation.” ............................................ 5

B. Laufer’s purported “frustration and

humiliation” injury also fails because it

is self-inflicted................................................. 8

C. Failing to apply fundamental standing

principles will undermine the ADA by

interfering with reasonable government

enforcement. ................................................... 9

II. Serial ADA litigants like Laufer present

serious problems for businesses and the

courts. .................................................................. 10

A. Laufer is just one of many serial

litigants pursuing countless ADA

lawsuits premised on dubious standing

theories or meritless underlying claims. ..... 12

iii

TABLE OF CONTENTS

(continued)

Page

1. Laufer has filed hundreds of lawsuits,

and only this Court can stop her. .......... 12

2. Laufer is just one of many serial ADA

litigants. ................................................. 13

B. Serial ADA lawsuits have significant

negative effects on businesses, the court

system, and Americans with

disabilities. .................................................... 20

1. Serial litigants exploit the ADA to extract

settlements—especially from small

businesses. .............................................. 20

2. Serial ADA litigants clog federal court

dockets with meritless or bad-faith ADA

lawsuits. ................................................. 21

3. As courts and lawmakers have

recognized, serial ADA litigants do not

advance the interests of people with

disabilities. ............................................. 21

III. Unless this Court intervenes, the circuit

split will persist and abusive ADA litigation

will continue. ....................................................... 22

CONCLUSION .......................................................... 24

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Wright,

468 U.S. 737 (1984) ......................................... 5, 6, 7, 8

American Legion v.

American Humanist Ass’n,

139 S. Ct. 2067 (2019) ..................................... 3, 5, 7, 8

Brintley v. Aeroquip Credit Union,

936 F.3d 489 (6th Cir. 2019) ............................. 7, 9, 17

Calcano v. Swarovski

North America Ltd.,

36 F.4th 68 (2d Cir. 2022) ................................... 14, 15

Carello v. Aurora Policeman Credit Union,

930 F.3d 830 (7th Cir. 2019) ..................................... 17

Clapper v. Amnesty International USA,

568 U.S. 398 (2013) ..................................................... 8

Dominguez v. Banana Republic, LLC,

No. 19-cv-10171, 2020 WL 1950496

(S.D.N.Y. Apr. 23, 2020),

aff’d sub nom. Calcano v.

Swarovski North America Ltd.,

36 F.4th 68 (2d Cir. 2022) ............................. 14, 15, 23

Griffin v. Department of Labor

Federal Credit Union,

912 F.3d 649 (4th Cir. 2019) ..................................... 17

Harris v. McRae,

448 U.S. 297 (1980) ................................................. 7, 8

Johnson v. 27th Avenue Caraf, Inc.,

9 F.4th 1300 (11th Cir. 2021) .............................. 15, 17

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Johnson v. Ocaris

Management Group Inc.,

No. 18-cv-24586, 2019 WL 13235462

(S.D. Fla. May 30, 2019)............................................ 16

Johnson v. Ocaris

Management Group Inc.,

No. 18-cv-24586, 2019 WL 13235834

(S.D. Fla. Aug. 23, 2019)

aff’d in part, dismissed in part sub nom.

Johnson v. 27th Avenue Caraf, Inc.,

9 F.4th 1300 (11th Cir. 2021) ........................ 15, 16, 22

Kennedy v. Floridian Hotel, Inc.,

No. 18-cv-62486, 2020 WL 9762992

(S.D. Fla. Jan. 28, 2020),

aff’d and remanded,

998 F.3d 1221 (11th Cir. 2021) ................................. 13

Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519 (2013) ..................................................... 1

Laufer v. Arpan LLC,

29 F.4th 1268 (11th Cir. 2022) .................... 4, 5, 13, 17

Laufer v. Looper,

22 F.4th 871 (10th Cir. 2022) .................................... 12

Laufer v. Naranda Hotels, LLC,

No. 20-cv-1974, 2020 WL 7384726

(D. Md. Dec. 16, 2020) ................................... 10, 12, 21

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................. 3, 5, 6

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Sarwar v. Patel Investments Inc.,

No. 21-cv-118, 2022 WL 1422196

(D. Vt. May 5, 2022) ............................................ 13, 14

Shayler v. 1310 PCH, LLC,

51 F.4th 1015 (9th Cir. 2022) .................................... 11

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018) ................................................. 1

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ..................................................... 8

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ................................... 6, 7, 8, 10

United States v. Students Challenging

Regulatory Agency Procedures (SCRAP),

412 U.S. 669 (1973) ..................................................... 7

STATUTES AND REGULATION

42 U.S.C. § 12101 ...................................................... 9, 21

28 C.F.R. § 36.302(e)(1)(ii) ........................................ 8, 13

Unruh Civil Rights Act,

Cal. Civ. Code § 51 .................................................... 18

Cal. Code Civ. Proc. § 425.55(a)(2) ......................... 10, 22

OTHER AUTHORITIES

Daniel Ducassi, 10th Circ. May Wait

For Justices To Act On ADA Hotels Case,

Law360 (Nov. 22, 2022),

tinyurl.com/2h3bvbx7 ................................................ 13

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Sam Stanton, Serial ADA filer sets sights

on Bay Area merchants, submitting

1,000 complaints in two years,

The Mercury News (June 28, 2021),

tinyurl.com/27d8etd4 .......................................... 20, 21

Press Release, San Francisco District Attorney,

District Attorney Brooke Jenkins

Files Appeal of Court Ruling

Granting Legal Immunity to Potter Handy’s

Scheme to Defraud Small Businesses,

(Oct. 20, 2022), tinyurl.com/35uxp7uu ..................... 19

Amy Yee, U.S. Businesses Get Hit

With Record Number of Daily Lawsuits,

Washington Post (Apr. 14, 2022),

tinyurl.com/yewurrve ................................................ 22

1

INTERESTS OF AMICI CURIAE

The Retail Litigation Center, Inc. (RLC), provides

courts with the perspective of the retail industry on

important legal issues affecting its members. Collectively, the RLC’s members employ millions of workers

nationwide, provide goods and services to tens of millions of consumers, and generate tens of billions of

dollars in annual sales. Since its founding in 2010, the

RLC has filed more than 200 amicus briefs, and this

Court and others have favorably cited its briefs. See,

e.g., South Dakota v. Wayfair, Inc., 138 S. Ct. 2080,

2097 (2018); Kirtsaeng v. John Wiley & Sons, Inc., 568

U.S. 519, 542 (2013).*

The National Retail Federation (NRF) is the

world’s largest retail trade association, representing

discount and department stores, home goods and specialty stores, Main Street merchants, grocers,

wholesalers, chain restaurants, and internet retailers

from the United States and more than 45 countries.

For over a century, NRF has been a voice for retailers,

educating and communicating the impact retail has

on local communities and global economies. NRF regularly submits amicus curiae briefs in cases raising

significant legal issues for the retail community.

The question presented is of significant interest to

amici. The Americans with Disabilities Act (ADA) is

important legislation, and plaintiffs bringing goodfaith, legitimate ADA claims should have full access

* Both parties have consented in writing, after more than 10

days’ notice, to the filing of this brief. No counsel for any party

authored this brief in whole or in part. No person or entity other

than amici curiae or their counsel made a monetary contribution

to the brief’s preparation or submission.

2

to courts. But the decision below deepens a circuit

split that undermines the ADA’s promise for individuals with disabilities by enabling serial plaintiffs to

file abusive litigation threatening well-meaning businesses—and potentially public entities as well. As

discussed below, serial ADA litigants have filed thousands of lawsuits not to improve accessibility for

people with disabilities but to enrich themselves and

their lawyers. The consequence is less accessibility,

not more. Granting this petition would allow the

Court to help ensure that litigants are using the ADA

as a tool to promote accessibility, not as a ploy for attorneys and serial litigants to extort businesses.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The ADA is important legislation, and many

Americans rely on its protections from disability discrimination. But serial ADA litigants and their

lawyers have coopted the ADA as an instrument for

personal financial gain. Relying on an expansive and

unfounded theory of standing, those litigants have

filed thousands of ADA suits across the country. These

lawsuits do not rest on any concrete injuries. Instead,

serial plaintiffs, like Respondent Deborah Laufer, go

out of their way to find alleged regulatory violations

by businesses they never intend to patronize. The

scheme is simple: Sue as many businesses as possible

using a boilerplate complaint, and hope to extract easy

money through settlements or attorneys’ fees awards.

The problem, as many courts and lawmakers have

observed, is that these suits don’t make businesses

more accessible. Indeed, a simple phone call often

could have produced the desired information or result.

But that’s not what serial plaintiffs care about—

3

indeed their litigation can even make businesses less

accessible by forcing them to shutter in the face of

threatened liability. The Court should intervene.

I. Serial ADA litigants like Laufer—whose alleged injury is self-inflicted “frustration and

humiliation”—lack standing.

A. Under well-established standing principles,

the “frustration and humiliation” Laufer claims she

experiences when visiting the websites of hotels she

never intends to visit is not a concrete or particularized injury. See, e.g., Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). In his concurring opinion in

American Legion v. American Humanist Ass’n, 139

S. Ct. 2067, 2098 (2019), Justice Gorsuch, joined by

Justice Thomas, reiterated that, even when a plaintiff

alleges a constitutional violation, she doesn’t have

standing just because she is an “offended observer.”

That reasoning applies with even more force to Laufer, who has alleged only a regulatory violation.

B. What’s more, plaintiffs cannot manufacture

standing by intentionally inflicting harm on themselves. That is exactly what serial litigants like Laufer

do. In holding that Laufer’s self-inflicted frustration

from viewing a website confers standing, the First and

Eleventh Circuits have opened the courthouse doors

to countless suits from serial plaintiffs who need only

claim to take offense at something a business across

the country is doing.

II. Giving serial litigants like Laufer standing

has serious consequences for businesses and courts.

A. This lawsuit is not unique. Laufer herself has

brought more than 600 just like it—and she is just one

of many serial ADA litigants who have suffered no

real injury. Their goal appears to be to extract

4

settlements or attorneys’ fees from as many defendants as possible.

B. Some serial ADA litigants target small businesses—particularly those run by non-English

speakers—that lack the resources to defend themselves and might be bullied into complying with

monetary demands. Facing the specter of high litigation costs, those businesses often have no choice but to

settle. Some businesses have even been forced to shutter as a result. Those consequences undermine

Congress’ goal of promoting accessibility for people

with disabilities. Because their aim is simply cash, serial plaintiffs don’t care whether businesses know

about the ADA’s complex regulations or are willing to

improve accessibility without litigation.

III. The First Circuit’s holding below deepens a

split that enables serial ADA litigation, and it deserves this Court’s attention. Unless this Court

intervenes, serial ADA litigants will continue wreaking havoc on businesses—and potentially public

entities subject to Title II of the ADA—and clogging

up federal court dockets.

ARGUMENT

I.

The decision below is wrong and sets a

dangerous precedent because self-inflicted

“frustration and humiliation” alone do not

confer standing.

Both the First Circuit below and the Eleventh Circuit held that the “frustration” and “humiliation”

Laufer allegedly experienced from visiting a hotel

website that purportedly violated ADA regulations

could give her standing, even though she disclaimed

any intention to visit that hotel. Pet. App. 11a, 26a;

Laufer v. Arpan LLC, 29 F.4th 1268, 1270, 1274-75

5

(11th Cir. 2022). The notion that a litigant has standing just because she takes offense at something she

observes conflicts with well-established standing principles. As Justice Gorsuch and Justice Thomas

recently explained, such “[o]ffended observer standing

is deeply inconsistent” with many “longstanding principles and precedents.” American Legion, 139 S. Ct. at

2100 (Gorsuch, J., joined by Thomas, J., concurring in

the judgment). And Laufer’s case for standing is all

the weaker because she went out of her way to inflict

her alleged frustration on herself by visiting websites

of hotels she never planned to visit. Lawsuits like Laufer’s do not advance the purpose of the ADA. In fact,

holding that serial plaintiffs like Laufer have standing makes it harder for the government to carry out

its Article II duty to enforce the statute in a way that

promotes accessibility for people with disabilities.

A. Basic standing principles do not allow

federal courts to hear a case just because

the plaintiff alleges “frustration and

humiliation.”

1. The “frustration and humiliation” that Laufer

has allegedly experienced by visiting the websites of

hotels she never intends to visit does not confer Article

III standing. To have standing, a plaintiff must suffer

an injury, traceable to the defendant and redressable

by the court, that is “concrete and particularized” and

“actual or imminent.” Lujan, 504 U.S. at 560 (citation

omitted). Three basic injury principles show that Laufer lacks standing.

First, frustration and humiliation, by themselves,

are not cognizable injuries. This Court has made clear

that discriminatory stigma “accords a basis for standing only to ‘those persons who are personally denied

6

equal treatment’ by the challenged discriminatory

conduct.” Allen v. Wright, 468 U.S. 737, 755 (1984) (citation omitted). Thus, for example, Allen held that the

parents of African American schoolchildren who had

not personally suffered any discrimination lacked

standing to sue the IRS over its refusal to deny taxexempt status to schools that discriminated on the basis of race. See id.

Second, and relatedly, a plaintiff must show that

the alleged harm is “particularized” to her—or else

Congress could “freely creat[e] causes of action for

vast classes of unharmed plaintiffs to sue any defendants who violate any federal law.” TransUnion LLC v.

Ramirez, 141 S. Ct. 2190, 2206 n.2 (2021).

Third, a plaintiff cannot rely on “‘some day’ intentions” that may cause her to suffer an alleged injury.

Lujan, 504 U.S. at 564. A plaintiff must have sufficiently “concrete plans” that will cause her to suffer

“actual or imminent” injury. Id.

Those standing principles foreclose serial ADA

lawsuits like Laufer’s. As Allen makes clear, whatever

Laufer’s frustrations with viewing a hotel website

that is missing particular information, she suffers no

Article III injury without unequal treatment—that is,

without unequal access to the hotel’s services. And as

Lujan and TransUnion instruct, Laufer cannot rely on

a bare regulatory violation that causes her no particularized harm. Finally, Laufer doesn’t even have

“‘some day’ intentions” to visit the hotels she sues,

much less “concrete plans.” Lujan, 504 U.S. at 564. In

short, Laufer doesn’t have standing to sue a hotel just

because she thinks its website doesn’t comply with a

regulation.

7

Judge Sutton put it well in another case involving

an ADA litigant claiming that viewing a website conferred standing: the purpose of these standing rules is

“to prevent the federal judiciary from becoming a ‘vehicle for the vindication of the value interests of

concerned bystanders.’” Brintley v. Aeroquip Credit

Union, 936 F.3d 489, 494 (6th Cir. 2019) (quoting

United States v. Students Challenging Regul. Agency

Procs. (SCRAP), 412 U.S. 669, 687 (1973)). But

“[t]hose who merely peruse websites that they can’t

benefit from have less in common with bystanders

than they do with passersby.” Id.

2. Justice Gorsuch’s concurrence in the judgment in American Legion, joined by Justice Thomas,

reinforces these principles. American Legion held that

a World War I memorial cross on public land did not

violate the Establishment Clause. 139 S. Ct. at 2074.

Justice Gorsuch explained that taking offense when

seeing the cross could not confer standing on the challengers. See id. at 2098. Pointing to several decisions

of this Court, Justice Gorsuch explained that the “‘offended observer’ theory of standing has no basis in

law.” Id. Besides Allen, for example, Justice Gorsuch

discussed Harris v. McRae, 448 U.S. 297, 321 n.24

(1980) (citation omitted), where the Court held that

members of a religious group did not have standing to

challenge federal restrictions on abortion funding because they had not alleged that the law “in any way

coerce[d] them as individuals in the practice of their

religion.”

That view makes sense. If an observer offended by

a legal violation had standing for that reason alone,

the concreteness and particularity requirements

wouldn’t mean much. “Congress might, for example,

provide that everyone has an individual right to clean

8

air and can sue any defendant who violates any airpollution law.” TransUnion, 141 S. Ct. at 2206 & n.2.

That, of course, isn’t how Article III works. See id.

Laufer’s standing arguments are even weaker

still. For one thing, the plaintiffs in Allen, Harris, and

American Legion claimed to be offended by constitutional violations (which still wasn’t enough), whereas

Laufer’s claim is that she took offense at alleged noncompliance with 28 C.F.R. § 36.302(e)(1)(ii). For

another, Laufer is not even alleging that the hotels

she sues are otherwise violating the ADA. See Pet.

App. 42a. Her purported injury is that she is frustrated about “‘bare procedural violation[s],’ divorced

from any concrete harm” to her. TransUnion, 141

S. Ct. at 2213 (quoting Spokeo, Inc. v. Robins, 578 U.S.

330, 341 (2016)). That generalized frustration does not

give her standing.

B. Laufer’s purported “frustration and

humiliation” injury also fails because it

is self-inflicted.

Laufer’s standing claim fails for another reason,

too: she has sought out her purported injury just so

she can sue. But plaintiffs “cannot manufacture

standing merely by inflicting harm on themselves

based on their fears of hypothetical future harm that

is not certainly impending.” Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 416 (2013).

That is exactly what serial plaintiffs like Laufer

try to do. Laufer admits she does not intend to visit

many of the hotels she sues. See Pet. App. 11a n.3. Instead, as she stated in a declaration in this case, she

“visit[s] hotel online reservation services to ascertain

whether they are in compliance with the Americans

With Disabilities Act.” D. Ct. Doc. 17, ¶ 3. Her

9

complaint is that she “suffer[s] humiliation and frustration” when she thinks they aren’t. Id. ¶¶ 6-7.

That self-inflicted offense cannot confer standing.

As Judge Sutton put it, “[t]he internet is a vast and

often unpleasant place. It contains plenty that may offend, and those who set out looking for dignitary

slights won’t be disappointed. But merely browsing

the web, without more, isn’t enough to satisfy Article

III.” Brintley, 936 F.3d at 494. The First and Eleventh

Circuits’ contrary reasoning has startling ramifications. For example, if Laufer can sue a hotel she never

intends to visit for a regulatory violation that merely

offends her, what would prevent any plaintiff from suing a library, school, or city council anywhere in the

country for failing to post something on its website

that the plaintiff thinks federal law requires?

C. Failing to apply fundamental standing

principles will undermine the ADA by

interfering with reasonable government

enforcement.

The First Circuit’s decision is not just doctrinally

wrong. It also threatens to undermine effective ADA

enforcement.

A primary purpose of the ADA is “to address the

major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § 12101. Lawsuits like

Laufer’s do not advance that purpose. As the petition

points out (at 29), many businesses may be unaware

of alleged regulatory violations, like the need to post

certain information on a website, and may be willing

to make changes or provide the requested information

by phone. A quick call to the business serves the

ADA’s purposes of promoting accessibility. The threat

10

of gratuitous litigation, and business-destroying liability, does not.

Government regulators can weigh those considerations when enforcing “the public interest that private

entities comply with the law” and deciding “how to prioritize and how aggressively to pursue legal actions

against defendants who violate the law.” TransUnion,

141 S. Ct. at 2206-07. “Private plaintiffs” like Laufer,

in contrast, “are not accountable to the people and are

not charged with pursuing the public interest in enforcing a defendant’s general compliance with

regulatory law.” Id. at 2207. That’s exactly what the

California legislature found when it amended the

state’s laws to make serial disability litigation harder

to bring in state court—that serial litigants often

“seek[] quick cash settlements rather than correction

of the accessibility violation.” Cal. Code Civ. P.

§ 425.55(a)(2). As a district court explained when dismissing one of Laufer’s lawsuits for lack of standing,

“Congress’s intent in creating the ADA was to ensure

that disabled individuals have equal access to public

accommodations, not to facilitate the creation of litigation factories to allow attorneys to reap fees from

hundreds of lawsuits while clogging the dockets of the

federal courts.” Laufer v. Naranda Hotels, LLC, No.

20-cv-1974, 2020 WL 7384726, at *9 (D. Md. Dec. 16,

2020).

II. Serial ADA litigants like Laufer present

serious problems for businesses and the

courts.

Getting the doctrine right matters, because affording serial ADA litigants like Laufer standing is

devastating to both businesses and federal court dockets. Serial litigants like Laufer have filed thousands

11

of lawsuits against a wide range of businesses nationwide, pursuing theories of ADA liability ranging from

implausible to creative. The common link is that the

plaintiffs themselves usually haven’t suffered any real

injury. Instead, such “abusive ADA litigation” often

relies on “form complaints containing a multitude of

boilerplate allegations,” Shayler v. 1310 PCH, LLC, 51

F.4th 1015, 1018 (9th Cir. 2022), to extract settlements or attorneys’ fees from as many defendants as

possible.

The problem has become so severe that the District Attorneys of San Francisco and Los Angeles have

sued a law firm that has filed thousands of federal

ADA lawsuits, alleging that the firm’s attorneys and

the plaintiffs they represent “demand large cash settlements even if the business quickly fixed all

potential violations … and generally refuse to engage

in good faith negotiations.” Compl. ¶ 64, People v. Potter Handy, No. CGC-22-599079 (Cal. Sup. Ct. Apr. 11,

2022) (Potter Handy Complaint). The district attorneys described this scheme as “a shakedown

perpetrated by unethical lawyers.” Id. ¶ 68.

Ultimately, serial ADA lawsuits harm businesses,

clog federal court dockets with thousands of lawsuits

that have little to no merit, and do not advance the

interests of Americans with disabilities. Given the

breadth of legal theories that serial ADA litigants

have pursued, there is no reason to believe they will

not continue to sue businesses—and potentially public

entities—subject to the ADA, with little consideration

of whether those lawsuits are meritorious or whether

any alleged accessibility violations could be resolved

without litigation.

12

A. Laufer is just one of many serial litigants

pursuing

countless

ADA

lawsuits

premised on dubious standing theories

or meritless underlying claims.

1. Laufer has filed hundreds of lawsuits,

and only this Court can stop her.

As the petition notes, Acheson Hotels isn’t the

only defendant Laufer has sued. Laufer has filed more

than 600 federal ADA lawsuits since 2018 against hotels across the country. Pet. 8. Indeed, with her

aggressive nationwide approach, Laufer has singlehandedly created the circuit split here. See Pet. 5, 1622. Laufer’s standard procedure is to bring boilerplate

lawsuits with little regard for merit. She has disclaimed (or at least not shown) that she intends to

visit many hotels she sues. See Pet. App. 11a n.3.

Unsurprisingly, many courts have correctly held

that Laufer lacks standing. But she continues to bring

these lawsuits, even in jurisdictions where courts

have already dismissed her suits for lack of standing.

One federal court has warned Laufer and her counsel

“that future filings in her existing Maryland cases,

and future lawsuits brought in the same vein while

the impediments identified in this opinion persist, will

be subject to close review for futility and frivolity, including the possible awarding of attorneys’ fees as

sanctions.” Naranda Hotels, 2020 WL 7384726, at *9.

Still, Laufer files on. In fact, despite a Tenth Circuit

holding earlier this year that Laufer lacked standing,

see Laufer v. Looper, 22 F.4th 871, 878-80 (10th Cir.

2022), Laufer and her lawyers continue to press her

lawsuits in that circuit. At oral arguments in two of

Laufer’s consolidated appeals, Laufer v. Red Door 88

LLC, No. 22-1055 (10th Cir.), and Laufer v. Campfield

13

Properties, LLC, No. 22-1106 (10th Cir.), her lawyer

could not explain what factual allegations distinguished those cases from Looper. Oral Argument at

9:33-12:20, Red Door 88, 22-1055.

Laufer might have created the circuit split, but

only this Court can end it. As Judge Newsom put it in

one of Laufer’s cases, “the law concerning ‘stigmatic

injury’ will remain deeply unsettled until the Supreme Court steps in to provide additional guidance.”

Arpan, 29 F.4th at 1287 (Newsom, J., concurring).

And the Tenth Circuit just put Laufer’s pending appeals into abeyance until this Court resolves Acheson

Hotels’ petition. Order, Red Door 88 , No. 22-1055

(10th Cir. Nov. 23, 2022). Even Laufer’s lawyer thinks

this Court must step in, telling a reporter that

“[w]hat’s clear is that clarity is needed from the Supreme Court.” Daniel Ducassi, 10th Circ. May Wait

For Justices To Act On ADA Hotels Case, Law360

(Nov. 22, 2022), tinyurl.com/2h3bvbx7.

2. Laufer is just one of many serial ADA

litigants.

The problems caused by Laufer alone are bad

enough, but she’s not unique. Other serial ADA plaintiffs have collectively brought staggering numbers of

similarly troubling suits. Some litigants, like Laufer,

seek out hotels with website listings they say are not

compliant with 28 C.F.R. § 36.302(e)(1)(ii)—despite

having little to no actual connection with those hotels.

See Pet. 27. One district court observed that a plaintiff

had “filed more than 250 ADA cases in this district

alone,” Kennedy v. Floridian Hotel, Inc., No. 18-cv62486, 2020 WL 9762992, at *1 (S.D. Fla. Jan. 28,

2020), aff’d and remanded, 998 F.3d 1221 (11th Cir.

2021), while another noted that a plaintiff “has filed

14

approximately 300 such lawsuits,” Sarwar v. Patel

Invs. Inc., No. 21-cv-118, 2022 WL 1422196, at *1 (D.

Vt. May 5, 2022).

Other litigants have relied on a range of legal theories to exploit the ADA. To describe just a few: Some

litigants have sued retail stores for not stocking

Braille gift cards (which the ADA does not require

stores to sell). Others have targeted gas stations that

do not provide closed captioning for pumpside televisions, even though the litigants’ sole reason for

visiting the stations was to sue, not buy gas (or watch

TV). Some litigants have challenged credit unions for

failing to maintain accessible websites, even though

they are not eligible to join those credit unions. Still

others have tacked meritless ADA claims onto statelaw disability claims so they can sue in federal court

and circumvent state-court rules designed to crack

down on serial filers. These litigants have collectively

brought many thousands of suits—seeking primarily

to extort settlements from businesses or secure an

award of attorneys’ fees.

a. Beginning in 2019, the Southern and Eastern

Districts of New York were “flooded with litigation

from a handful of plaintiffs seeking injunctive relief,

compensatory damages, and, of course, attorneys’

costs” from retail and service businesses that did not

sell specialty Braille gift cards for the visually impaired. Dominguez v. Banana Republic, LLC, No. 19cv-10171, 2020 WL 1950496, at *1 (S.D.N.Y. Apr. 23,

2020), aff’d sub nom. Calcano v. Swarovski N. Am.

Ltd., 36 F.4th 68 (2d Cir. 2022). One district judge

noted that he had eleven such cases from the same two

attorneys. Id. at *1 n.1. He found the suits “meritless,”

because there was “simply no legal support for Plaintiff’s assertion that Title III requires Banana Republic

15

to create Brailled gift cards for the visually impaired”—“the plain text of the ADA and the

Department of Justice’s implementing regulations

make clear the exact opposite.” Id. at *1, *7. The court

ultimately dismissed the lawsuits for lack of standing,

holding that “there are not enough facts in Plaintiff’s

complaint to plausibly suggest that he will be injured

by [the defendant’s] failure to sell Braille gift cards in

future.” Id. at *4.

The Second Circuit affirmed on standing grounds.

Calcano, 36 F.4th at 72. Refusing to “ignore the

broader context of Plaintiffs’ transparent cut-andpaste and fill-in-the-blank pleadings,” the court noted

that “over 200 essentially carbon-copy complaints” advancing that same theory were filed between October

and December 2019—almost half by the four plaintiffs

before the court. Id. at 77. The court found that the

sheer volume of “Plaintiffs’ Mad-Libs-style complaints

further confirms the implausibility of their claims of

injury.” Id. Indeed, one plaintiff even “assert[ed] that

he would return to a [store] that doesn’t exist.” Id.

b. Attorney Scott Dinin and plaintiff Alexander

Johnson are a serial ADA litigation team. Johnson v.

Ocaris Mgmt. Grp. Inc., No. 18-cv-24586, 2019 WL

13235834, at *1 n.1 (S.D. Fla. Aug. 23, 2019), aff’d in

part, dismissed in part sub nom. Johnson v. 27th Ave.

Caraf, Inc., 9 F.4th 1300 (11th Cir. 2021). As of 2019,

Dinin had filed over 650 ADA lawsuits, with Johnson

as plaintiff in over 130. Id. Dinin has pursued a variety of ADA theories in his hundreds of lawsuits. For

example, in 2018 and 2019, he and Johnson filed at

least 26 identical cases against gas station owners in

Miami-Dade and Broward counties for failing to provide closed captioning on pumpside televisions, which

Johnson alleged would “allow the hearing-impaired ‘to

16

comprehend the television media features embedded

within the gasoline pumps.’” Id. at *1.

The district court dismissed for lack of standing,

finding that “Johnson’s core ADA allegations were not

credible.” Johnson v. Ocaris Mgmt. Grp. Inc., No. 18cv-24586, 2019 WL 13235462, at *3 (S.D. Fla. May 30,

2019). The court found implausible Johnson’s explanation for why he, a Fort Lauderdale resident, was

visiting so many Miami-Dade stations. Although

“Johnson explained that he travels to the Miami-Dade

County Zoo once a month,” “none of those stations are

even remotely near any conceivable route between his

Fort Lauderdale residence and the zoo.” Id.

The court also imposed sanctions on both Johnson

and Dinin. Given the implausible allegations, the

court found that Johnson and Dinn were engaged in

“an illicit joint enterprise … to dishonestly line their

pockets with attorney’s fees from hapless defendants

under the sanctimonious guise of serving the interests

of the disabled community.” Johnson, 2019 WL

13235834, at *1. The court further determined that

Dinin had “egregiously inflated and misrepresented

his billable time” in order to maximize a potential

award of attorneys’ fees under the ADA. Id. at *2. All

in all, the court found that Dinin and Johnson “deliberately and knowingly abused the ADA and the legal

system solely for their own financial gain, and in total

disregard of the hearing-impaired for whom they

sanctimoniously but disingenuously professed to have

brought these lawsuits. In doing so, they have, unfortunately, undermined the credibility of legitimate

ADA cases.” Id. at *3.

The Eleventh Circuit affirmed. As if to decisively

prove the lack of real injury in serial ADA litigation,

17

attorney Dinin (but not plaintiff Johnson) appealed

the dismissal of the ADA claim, prompting the Eleventh Circuit to dismiss for lack of standing. The court

explained that “lawyers represent their clients and

are not themselves participants in the litigation.”

Johnson, 9 F.4th at 1311. The Eleventh Circuit also

affirmed the sanctions imposed in Johnson’s separate

appeal. Id. at 1318. But, although the court held that

Johnson’s “bad faith conduct” warranted dismissal of

his ADA claim (among other sanctions), the court expressly “reject[ed] the District Court’s ruling to the

extent it also dismissed Johnson’s ADA claim for lack

of standing”—consistent with that circuit’s decision in

Arpan, one of the decisions in this circuit split. Id. at

1315-16 & n.7.

c. As the petition explains (at 22), ADA litigants

have also sued credit unions they had no intention or

eligibility to join, alleging that the unions’ websites

were not accessible for individuals with visual disabilities. The three circuits to consider such cases have all

held that those litigants lacked standing. See Griffin

v. Department of Lab. Fed. Credit Union, 912 F.3d 649

(4th Cir. 2019); Carello v. Aurora Policeman Credit

Union, 930 F.3d 830 (7th Cir. 2019) (Barrett, J.);

Brintley, 936 F.3d 489.

Judge Sutton emphasized what was at stake. “If

we adopted [the plaintiff’s] theory of encounter standing,” he explained, “we’d deputize her to sue not just

these credit unions but many of the some 5,600 others

in the United States as well. … And if we credit [her]

statistics on visual impairment, we’d permit eight million other Americans to do the same.” Brintley, 936

F.3d at 494. But the First Circuit and Eleventh Circuit have done just that. By holding that Laufer and

similar serial ADA litigants have standing, those

18

courts have deputized plaintiffs with no real injuries—and their lawyers—to enrich themselves by

suing businesses anywhere in the country, no matter

the merits of the suit or the businesses’ willingness to

modify their practices.

d. The situation in California underscores the severity of the problem. There, serial litigants have used

federal lawsuits to circumvent state laws enacted to

deter attorneys from bringing high volumes of meritless disability lawsuits. In response, the District

Attorneys of San Francisco and Los Angeles filed a

lawsuit earlier this year seeking restitution and civil

penalties from Potter Handy LLP, a law firm that has

filed thousands of boilerplate lawsuits under the ADA

and California’s Unruh Civil Rights Act, Cal. Civ.

Code § 51. According to the district attorneys’ complaint, Potter Handy added ADA claims to disability

lawsuits—without regard for whether the defendant

was actually violating the ADA—to file those suits in

federal court and avoid the stricter pleading requirements and additional filing fees that apply in

California courts for “high-frequency” litigants. Potter

Handy Complaint ¶¶ 2-3.

Potter Handy has filed thousands of federal ADA

complaints in recent years, including 800 cases with

Orlando Garcia, 1,700 with Brian Whitaker, and thousands more with other serial plaintiffs. Id. ¶ 9. As the

district attorneys’ complaint shows, Potter Handy and

its plaintiffs do not bring these suits to ensure that

California businesses are complying with the ADA.

Rather, “[t]heir primary, overriding goal is to maximize their own financial gain by filing and settling as

many boilerplate lawsuits as possible.” Id. ¶ 67.

19

In the district attorneys’ view, that conclusion

rests on solid evidence. Among other things, the complaint explains that Potter Handy and its serial

plaintiffs rarely monitor businesses’ compliance with

the ADA after settlement or even return to patronize

the businesses. Id. Indeed, Potter Handy and its serial

plaintiffs “demand large cash settlements even if the

business quickly fixed all potential violations, will not

dismiss cases they know they would lose if litigated to

judgment, intentionally run up their attorney’s fees so

they can make higher settlement demands, and generally refuse to engage in good faith negotiations.” Id.

¶ 65. They also “appear[] to target businesses in marginalized communities, particularly those that have

large populations of immigrants and residents who do

not speak English or for whom English is a second language, who may be less familiar with the intricacies of

the American legal system.” Id. ¶ 55. In the district

attorneys’ view, Potter Handy’s conduct is “a shakedown perpetrated by unethical lawyers who have

abused their status as officers of the court.” Id. ¶ 68.

Despite all that, the trial court dismissed the complaint on the ground that some of Potter Handy’s

conduct was protected by California’s litigation privilege. The district attorneys have appealed. See Press

Release, S.F. Dist. Att’y, District Attorney Brooke Jenkins Files Appeal of Court Ruling Granting Legal

Immunity to Potter Handy’s Scheme to Defraud Small

Businesses, (Oct. 20, 2022), tinyurl.com/35uxp7uu.

But that setback only underscores the urgent need for

this Court’s intervention. Ultimately, only this Court

can stem the tide.

20

B. Serial ADA lawsuits have significant

negative effects on businesses, the court

system, and Americans with disabilities.

Serial ADA lawsuits burden businesses—who are

often willing to comply with the ADA if they are not

already—drain the federal courts’ limited resources,

and ultimately do not advance the interests of people

with disabilities. The petition gives the Court a critical opportunity to reinforce fundamental standing

principles and help ensure that serial ADA litigants

like Laufer cannot exploit the ADA for their own financial gain.

1. Serial litigants exploit the ADA to

extract settlements—especially from

small businesses.

The California district attorneys’ suit is again instructive. The complaint “[c]onservatively” estimates

that a single law firm has “extracted over $5,000,000

from California’s small businesses from the cases filed

on behalf of just one of their Serial Filers in just over

two years.” Potter Handy Complaint ¶ 68 (emphasis

omitted). All told, the district attorneys estimate,

“California’s small businesses have paid [that law

firm] tens of millions of dollars” in settlements since

2018. Id. (emphasis omitted). And some of that money

comes from businesses owned by immigrants and nonEnglish speakers—whom Potter Handy targets on the

notion that they “may be easier to frighten into complying with monetary demands cloaked in the

trappings of legal process.” Id. ¶ 55. News reports confirm the concerns. “Many businesses cannot afford the

cost of settling” an ADA lawsuit brought by a serial

filer and so instead opt to “fold up shop.” Sam Stanton,

Serial ADA filer sets sights on Bay Area merchants,

21

submitting 1,000 complaints in two years, The Mercury News (June 28, 2021), tinyurl.com/27d8etd4.

2. Serial ADA litigants clog federal

court dockets with meritless or badfaith ADA lawsuits.

As discussed, serial ADA litigants have brought a

staggering volume of lawsuits. The Washington Post

recently reported that the number of ADA lawsuits

filed in federal court has been consistently increasing

over the past decade, reaching an all-time high in

2021, the last full year at the time of reporting, at

11,452—more than quadruple the number filed in

2013. See Amy Yee, U.S. Businesses Get Hit With Record Number of Daily Lawsuits, Wash. Post (Apr. 14,

2022), tinyurl.com/yewurrve. As a district court observed in dismissing one of Laufer’s cookie-cutter

lawsuits, “it does not serve the interests of justice to

continue spending significant Court resources on

these cases if Plaintiff lacks standing, lacks credibility, and is not operating in good faith.” Naranda

Hotels, LLC, 2020 WL 7384726, at *9.

3. As courts and lawmakers have

recognized, serial ADA litigants do

not advance the interests of people

with disabilities.

The key aim of the ADA is to make this country

more accessible for Americans with disabilities. See 42

U.S.C. § 12101. But lawsuits filed by serial ADA litigants do not advance that goal. Serial ADA litigants’

objective is generally not to address accessibility problems, but to secure cash settlements or attorneys’ fees.

As noted, serial litigants often pursue settlements

with little concern for whether the business has fixed

the alleged problem or what effect that settlement

22

would have on the business’ ability to continue to operate. Forcing businesses to close because of alleged

accessibility issues does not help anybody, much less

advance the purpose of the ADA. As one district judge

put it, “it is clear that these cases, rather than being a

legal mechanism for meaningful remediation to benefit the purported beneficiaries, the hearing-impaired

community, they are solely about profiting from inflated attorney’s fees.” Johnson, 2019 WL 13235834,

at *8.

For these very reasons, as noted, California lawmakers have amended the state’s laws to discourage

serial disability suits. Cal. Code Civ. P. § 425.55(a)(2).

The legislature expressly found that serial litigants

“unfairly taint[] the reputation of other innocent disabled consumers who are merely trying to go about

their daily lives accessing public accommodations as

they are entitled to have full and equal access under

[state law] and the federal Americans with Disability

Act of 1990.” Id.

III. Unless this Court intervenes, the circuit

split will persist and abusive ADA litigation

will continue.

Unless this Court grants review, serial litigants

like Laufer will keep exploiting the ADA to force settlements from businesses, and clog federal court

dockets, with meritless and bad-faith lawsuits. Given

the circuit split, serial litigants can continue to file numerous lawsuits in at least two circuits based solely

on self-inflicted offense. And because the First and

Eleventh Circuits’ decisions deputize plaintiffs all

across the country, serial ADA plaintiffs and their

lawyers nationwide, motivated primarily by personal

23

gain, will simply redouble their efforts in those circuits.

What’s more, the First and Eleventh Circuits’ decisions are likely to enable serial litigants to find still

more ways to cause harm. After all, serial litigants’

lawyers have already relied on a wide range of legal

theories to pursue personal gain. For example, besides

targeting private small businesses, serial ADA litigants might begin targeting libraries, school districts,

or other local governmental entities subject to Title II

of the ADA. And, of course, it doesn’t matter that the

vast majority of such entities might actually comply

with the ADA. Serial ADA litigants’ lawsuits are often

“premised on … meritless argument[s],” Dominguez,

2020 WL 1950496, at *1, or are filed “with little regard” to whether the ADA is actually being violated,

Potter Handy Complaint ¶ 2, because the goal is to extort settlement cash or collect attorneys’ fees.

In the circuits correctly applying well-established

standing principles, in contrast, litigants and courts

can focus on applying the ADA the way Congress intended and the way most likely to help individuals

with disabilities.

24

CONCLUSION

The petition should be granted.

Respectfully submitted.

Deborah R. White

RETAIL LITIGATION

CENTER, INC.

99 M St. SE, Ste. 700

Washington, DC 20003

Counsel for Retail

Litigation Center

Shay Dvoretzky

Counsel of Record

Parker Rider-Longmaid

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave. NW

Washington, DC 20005

202-371-7000

Stephanie Martz

shay.dvoretzky@skadden.com

NATIONAL RETAIL

Counsel for Amici Curiae

FEDERATION

1101 New York Ave. NW Michael W. McTigue Jr.

Washington, DC 20005 Meredith C. Slawe

Jeremy Patashnik

Counsel for National

SKADDEN, ARPS, SLATE,

Retail Federation

MEAGHER & FLOM LLP

Jason D. Russell

One Manhattan West

SKADDEN, ARPS, SLATE

MEAGHER & FLOM LLP New York, NY 10001

Counsel for Amici Curiae

300 South Grand Ave.

Los Angeles, CA 90071

Counsel for Amici Curiae

December 8, 2022