How a Maryland Lawsuit could Turn the Accessibility World Upside Down

Serial Plaintiffs have been a mainstay of the slow march towards accessibility.

Because the Americans with Disabilities Act did not provide for an inspection or certification process, Department of Justice complaints or lawsuits are the only recourse a person with a disability has when faced with something inaccessible.

Serial plaintiffs are frequently, but not always "ADA testers." ADA testers are individuals who have no intention of ever buying the product or visiting the location the website represents.

ADA Testers only visit websites or physical locations to determine whether or not they are compliant with the Americans with Disabilities Act. Those that are not compliant may be a soft target for a demand letter or lawsuit. They pass their test results along to their associated law firm, which generates the official paperwork identifying the tester as the potential plaintiff.

Some serial plaintiffs have legitimate beefs

Because serial plaintiffs file the majority of ADA cases, it makes true ADA litigation like Bashin v Conduent and Lighthouse v. ADP really stand out. When you see a case that is:

1. pleading true harm
2. by an individual that hasn’t filed 500 other identical cases
3. that is not represented by a firm that handles serial plaintiff cases

it makes the ADA tester cases pale by comparison.

Full Disclosure: I am a serial plaintiff

For two years during the Trump Administration, I was labeled a "serial plaintiff" by the Department of Education because of the numerous complaints I had filed on behalf of d/Deaf and autistic children not getting the services they needed to achieve a Free Appropriate Public Education as required by federal law. I never received a dime for any of this work, so I was a serial plaintiff only in the sense that I had filed more than a dozen complaints. All of my cases alleged real harm and I didn't charge for my services.

My "serial plaintiff" label didn't reduce the number of children being discriminated against. It only prevented me from officially helping families file their complaints. Instead I wrote the documentation and handed it to the parents to submit in their names. That way, being associated with me wouldn't hurt their child's chances of getting a fair review.

How do the courts view serial plaintiffs?

Judges really hate two things:

1. "Forum shopping," which means looking for a favorable court to file a lawsuit, then stretching the facts of the case to support it, and;
2. Insincerity, expressed either by litigants or their attorneys.

About this case

In this case, Laufer v. Naranda Hotels, the wheelchair-using plaintiff with vision loss has filed more than 600 total cases across the US. In this particular case, Ms. Laufer claimed that booking.com, trip.com, priceline.com, agoda.com, expedia.com, and orbitz.com did not contain sufficient details about the accommodations at the Sleep Inn & Suites Downtown Inner Harbor.

The district court found against Ms. Laufer, but the appeals court overturned that decision, stating that Ms. Laufer did have standing as an ADA tester to file litigation.

What do other circuits say?

New York has frozen seventeen cases previous filed Ms. Laufer. They did so because the claimed Ms. Laufer:

• filed the cases without claims of actual business;
• amended the cases to include generic intent of actual business;
• couldn’t provide any proof of the generic intent.

Other courts have said similar things but in different ways. In Laufer v. BRE/ESA Portfolio (yes, the same Laufer), the Maryland court stated that “plaintiff must have plead facts to plausibly establish standing.”

New York is one of the favorite jurisdictional destinations of serial plaintiffs, with over 36 % of total US ADA cases being filed there. New York courts have not been silent about their disdain for ADA testers filing accessibility litigation.

The first New York commentary on digital ADA testers that I know of occurred in Diaz v. Kroger. The Kroger court specified that there had to be the real possibility of some business transaction taking place that would be barred by the alleged inaccessibility. Without the possibility of actual business being transacted, the New York court was saying, the barrier is largely illusory, and no real discrimination took place.

The possibility of actual business being transacted by a tester is zero, because testers’ sole purpose is testing, not transacting. Testers review websites through a compliance lens alone, not a customer lens. Though the New York courts have spoken many times, the plaintiffs (and their attorneys) really don’t seem to have been listening.

• Pleadings (court paperwork) are generally embarrassingly low quantity, contain numerous typos, grammatical errors, and even names of previous defendants and plaintiffs — hence the accusation of copy/paste work.
• Pleadings are rarely specific because being specific takes work, and if all the plaintiff is doing is testing, there is little to be specific about.

And now, the Supreme Court is involved

The split between the Maryland (4th Circuit) and New York (2nd Circuit) is a reason you can get Supreme Court review, and the Supreme Court indeed took up the case.

Balancing the benefit of public policy against the negative value of testers

The ADA provides the public with exactly two methods of redress

1. Department of Justice complaints that are almost never acted on,
2. Litigation

The question is: Is there value in tester litigation because it is inevitable that a real customer with a disability would run into the same discrimination and not be able to enjoy defendants goods or services?

Here are some points that make ADA cases different than run-of-the-mill civil litigation:

1. Neither OCR nor the ADA requires notice to the potential defendant before filing suit. Botosan v. McNally Realty clearly held that plaintiffs are NOT required to give notice to anyone before filing an ADA lawsuit.
2. There is no “right to sue” process required in OCR or the ADA like the EEOC where the party discriminated against must provide written notice to the discriminating company of their intention to file a lawsuit and receive a letter saying that they have the right to sue before the suit is filed.
3. The damage occurs when the discrimination takes place. Most of the time, no amount of apologizing or promising to fix it in the future takes away the sting *especially* for one-time events like weddings, baptisms, funerals, and graduations that can be ruined by inaccessibility. Once that discrimination bell has been rung, it cannot be un-rung.
4. The ADA has been the federal law of the land for almost 33 years. That is more than enough notice that discrimination will not be tolerated. Equal access is guaranteed under the law, period.
5. The first digital accessibility lawsuit, NFB v. Target, was settled 13 years ago. The majority of cases since NFB v. Target have been decided in favor of the plaintiffs and have used WCAG 2.0 Level AA as the standard for determining whether or not a website is accessible.
6. Complaining to someone in authority rarely results in change. Anecdotally, the next time I return, the barrier is usually still there. Exercising my rights under the ADA by filing a complaint with the state or in civil court turns my issue into a problem that can no longer be ignored or swept under the rug.
7. People with disabilities can’t hope that some overarching regulatory agency will keep other government departments and corporations in line by identifying violations and writing “fix-it” tickets based on inspections. Complaints and lawsuits are the only mechanisms that people with disabilities can avail themselves of.

Here is the paradox that most people don’t understand:

I am a real person who frequently experiences actual discrimination. I am *not* a tester.

If a tester found the problem first and was allowed to sue, any potential future discrimination against me and people like me by the public accommodation in question should be reduced if not eliminated.

Most accessibility managers hate serial plaintiffs. Because no website is ever 100 % compliant, even those outstanding at their jobs and have world class accessibility programs run the risk of being targeted by a serial plaintiff, which can tarnish the accessibility managers' reputations.

Because I’m one of the few people who has personally seen both sides of this argument , it’s really difficult for me to say unequivocally that one side is universally right and the other is always wrong.

I wish everyone who thinks that ADA lawsuits are frivolous or that serial filers should be blocked from filing additional suits could roll a mile in my wheelchair. On a regular basis I face delivery trucks, rideshares, police cars, and armored vehicles blocking accessible parking. I have to continuously ask for help with doors. Thoughtless store managers get “creative” by cramming more displays and items into the store, usually in the middle of an aisle that I can’t get around (Cupertino Target I’m talking to you). Twice in 2023 (as I write this we are just slightly over 3 months in), I have gone to my local farmers market and been unable to get into the marketplace without raising a fuss because the food trucks have blocked in the only exit from the only accessible parking space area.

The passage of the ADA has not come close to eliminating 100 % of the barriers I face daily. Pre-ADA, I was the only student left behind on a school trip to Yosemite because Yosemite did not have wheelchair-accessible bathrooms or paths. While Yosemite is now accessible, only a few years ago I had trouble attending my youngest daughter’s graduation because the school gave no thought to wheelchair accessibility in an outdoor setting.

No one should be forced to live their life being continuously singled out for this type of discrimination. The disabled plaintiffs suing over lack of access to food delivery, art galleries, college applications, hotels, and yes, fan websites like Beyonce’s literally can’t even get through the (digital) front door to make their interests in becoming a customer known. And last time I checked, disabled individual’s money is as spendable as any other customer’s.

Like a spanking or jail, the pain of being sued is what reduces the chance of the illegal behavior reoccurring, regardless of who the plaintiff is. If you don’t believe WCAG 2.1 is the standard to be measured to, no problem. Argue that you are providing equal access guaranteed to everyone by the ADA some other way. But ignore digital accessibility at your own risk. When the only viable recourse available to people with disabilities is to sue, class action litigation gets noticed.

The problem isn’t the plaintiffs.

The problem is their attorneys.

Lazy attorneys have frequently been cited in cases where ADA Testers are found to not have standing to file the case. Failure to spell or grammar check or leaving the names of previous defendants in the pleadings (court paperwork) creates an appearance of "cookie cutter". This is the result of plain, vanilla sloppiness, something that a half-way decent paralegal should be catching. But the real problem with sloppy pleadings is they erode credibility, leading to the court performing a very stringent review of whether the plaintiff has standing to file the case.

Financial sanctions, disbarment, and being blocked from filing future litigation are potential routes courts can take when lawyers fail to listen to previous guidance or follow the rules. One case in the 11th Circuit involved a plaintiff and attorney who have both been sanctioned related to ADA lawsuits. However, that case has a slightly different fact pattern since it includes allegations that the attorney egregiously inflated and misrepresented his billable time, a form of fraud.

What will the Supreme Court do?

Your guess is as good as mine. These three outcomes are the most likely:

1. Uphold the 4th Circuit Court of Appeals decision, which means jurisdictions like New York would no longer be able to reject cases based on the plaintiff's standing as a tester.
2. Overturn the 4th Circuit Court of Appeals decision, which will put serial plaintiffs who are purely ADA testers out of business.
3. Punt, like they did with Domino's. That would involve remanding the case back to the 4th Circuit with instructions on how the case should be handled.

Meanwhile, the most recent WebAIM report notes that the web is still very inaccessible to users of assistive technology. At least 96 % of the million most popular websites can't be used by people who need to use assistive technology. At the rate of improvement documented over the past five years, it will be 262 years or 2285 before people with disabilities will have equal access to the internet, which is even worse than the 32 years the New York subway system is going to take.

To answer the question of who tests the ADA testers, the answer is “the courts do.” Here’s hoping the courts find the right balance between the ADA testers and the people with disabilities who have been truly harmed by inaccessibility.