On March 27, 2023, the U.S. Supreme Court granted certiorari to review the  U.S. Court of Appeals for the First Circuit's holding in Acheson Hotels v. Laufer, 50 F.4th 259 (1st Cir. 2022) on the issue of whether a self-appointed Americans with Disabilities Act (ADA) "tester" plaintiff has Article III standing to challenge a place of public accommodation's failure to provide disability accessibility information on its website, even absent an intention of visiting that place of public accommodation. In this first review of an ADA Title III case in almost two decades, the Supreme Court will address this issue, which has split the circuit courts across the country, and a First Circuit opinion that is directly at odds with recent Second Circuit precedent. The Supreme Court's decision could have significant ramifications for ADA litigation that has been wildly proliferating in the Second Circuit and elsewhere for the past decade.

The ADA and Its Implementing Regulations

Title III of the ADA prohibits a "public accommodation" from discriminating against any individual on the basis of disability. The ADA defines discrimination to include the "failure to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities." The ADA, in turn, authorizes the Attorney General to promulgate regulations to carry out its mandate. One such regulation pertains to hotel reservations. It provides that a "public accommodation" operating a "place of lodging" must "with respect to reservations made by any means … 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."

The Attorney General has authority to investigate alleged violations and file suit to enforce the ADA. See 42 U.S.C. Section 12188(b); 28 C.F.R. Sections 36.502-36.503. However, the ADA also permits private individuals to sue when they have been subjected to discrimination on the basis of disability, 42 U.S.C. Section 12188(a); 28 C.F.R. Section 36.501, and the court may award attorney fees to the prevailing party, 42 U.S.C. Section 12205.