Today’s blog entry will discuss the oral argument in Acheson Hotels v. Laufer, which took place on October 4, 2023. We previously mentioned the appellate case here (links to the blog entries therein). The two categories of this blog entry are questions from the Justices and thoughts/takeaways. Of course, the reader is free to focus on either category.

I

Questions from the Justices

1. Justice Thomas and Justice Jackson both wanted to know why the case should be decided by the Supreme Court at all since both parties agree that the case is moot.
2. Justice Sotomayor wanted to know if an advisory opinion wasn’t being requested. She also wanted to know if mootness needs to be decided before standing or the other way around.
3. Chief Justice Roberts was of the opinion that standing should be decided before mootness as a purely logical matter.
4. Justice Jackson wanted to know what would happen if they found the case moot and then therefore vacated the opinion below under a doctrine called Munsingwear.
5. Chief Justice Roberts pointed out that the Supreme Court can decide on its own whether to deal with the standing issue or with the mootness issue first.
6. Justice Barrett wondered if deciding the case on the merits might not help solve things now because it is a no doubter that a serial Internet filer case will reach the Supreme Court at some point. So, why not get ahead of it.
7. Justice Alito referred to the case as being dead as a doornail and was worried about the Supreme Court issuing an advisory opinion. Justice Kagan had a similar concern.
8. Justice Kagan wondered if the Supreme Court could even decide the case in the first place because the case is moot.
9. Justice Kagan noted that the hotel had a new owner and that the website was now in compliance with the ADA reservation rule.
10. Justice Jackson wondered if foreseeability of a future case, which was entirely likely, was a sufficient reason to issue an advisory opinion.
11. Justice Gorsuch wanted to know what kind of allegations with respect to a case like this would be sufficient to give a plaintiff standing. That is, is it an intent to visit the hotel or something else?
12. Justice Sotomayor wondered if there was a stigmatic harm to an individual seeking information so as to enable an individual to make a subsequent purchase/reservation. She also wondered if a website was the same thing as a sign on a physical property saying that a person is not welcome.
13. Chief Justice Roberts noted that any intent to return allegations in the complaint could have its veracity assessed during the course of litigation.
14. Justice Kagan pointed out that the defense was not challenging tester standing as a general principle.
15. Justice Kagan wondered if you could have standing if the individual is not interested in the service of the facility. For physical facilities the answer is quite clearly yes, so why not the answer the same for websites?
16. Justice Barrett inquired whether this was a situation where an individual could not sue at all or whether this was a situation that the individual does not get to first base because injunctive relief is the remedy and requires an intent to return.
17. Justice Jackson wanted to know how a tester with respect to websites was any different than a person testing whether a lunch counter would serve an African-American during the civil rights movement of the 1960s.
18. Justice Jackson inquired as to whether the intent to return requirement of injunctive relief is with respect to the website or whether it is with respect to the hotel itself.
19. Chief Justice Roberts pointed out that serial filers are everywhere, so why not decide the issue now because this kind of lawsuit will inevitably reach the United States Supreme Court.
20. Justice Barrett wondered whether the Supreme Court will ever get a say on tester standing because serial filers are very strategic. Chief Justice Roberts had similar concerns.
21. Justice Alito inquired as to whether the distinction between the merits of the case v. standing mattered.
22. Justice Sotomayor wondered whether an ADA tester could ever have standing. She was also not buying the distinction between standing with respect to the Internet v. standing with respect to a physical place.
23. Justice Kagan inquired whether if making a reservation is the key, why couldn’t a plaintiff make a reservation, then cancel the reservation, and then claim standing?
24. Justice Kavanaugh pointed out that you could have standing without a cause of action and a cause of action without standing.
25. Justice Barrett wanted to know whether you needed to make a reservation and be disabled or was it just enough to suffer discrimination of the kind prohibited by the ADA.
26. Justice Jackson wanted to know whether an online user v. trying to use the service was the proper distinction to make.
27. Justice Thomas wanted to know what is the difference between a stigmatic and an informational injury.
28. Justice Kavanaugh wanted to know what to make of the fact that the information given was not discriminatory but it is at the hotel where the discrimination would have occurred. He also wanted to know whether this case was a situation of a person in one state complaining about the goings-on in another state or whether this case was more like Havens Realty.
29. Justice Kagan wanted to know how a plaintiff could be discriminated against if the individual is not planning to use any of the services.
30. Justice Gorsuch wanted to better understand how Laufer’s view differs, if at all, from the view advocated by DOJ. He also wanted to know whether Internet surfing by itself was sufficient to confer standing.
31. Chief Justice Roberts wanted to know if Havens Realty was actually distinguishable.
32. Justice Jackson wanted to know whether dignitary harm required an intent to return when seeking injunctive relief.
33. Justice Kavanaugh was trying to figure out when an online tester would ever have standing. He also wanted to know if the information on a website was the discrimination or whether what would likely happen at the hotel was the discrimination.
34. Justice Sotomayor wanted to know if the litigation was all about screen readers and the reservation rule and whether any litigation regarding Internet accessibility was about any other topic. She also wanted to know how any decision would impact screen reader cases.

II

Thoughts/Takeaways

1. The best result for the plaintiff is for the court to say that the case is moot and then per Munsingwear vacate the lower court opinion.
2. It seems that there are three votes (Jackson, Kagan, and Sotomayor), in favor of saying that the case is moot and that is the end of the matter. Justice Thomas and Justice Alito clearly believe that the case is moot. Not clear whether Justice Thomas and Justice Alito would leave it at that or also go on to the standing argument as well.
3. The Supreme Court can either attack mootness or standing in whatever order it wants to do so.
4. Chief Justice Roberts and Justice Barrett clearly want to decide the case on other grounds besides mootness. That is, they clearly want to discuss the standing issue.
5. Interesting how both parties to the case presume that tester standing is a thing under title III of the ADA. Based upon the statutory language differences between the Fair Housing Act and title III of the ADA, that is certainly not a given as Justice Sotomayor pointed out.
6. Lots of debate over what intent to return means when it comes to an Internet focused situation. That is, is it the intent to return to the web or is it an intent to take advantage of the services that the website is advertising.
7. Several Justices were concerned about the strategic moves that serial filers, such as Laufer, made during this case and might make in the future.
8. As I point out in my writings, I believe Chief Justice Roberts is right to point out that Havens Realty is certainly distinguishable from the title III of the ADA tester situation because of the differences in the statutory language of the Fair Housing Act and the ADA’s title III.
9. Justice Kavanaugh fairly points out that there is a question as to whether an online tester could ever have standing. That generated a very interesting response from Laufer’s attorney where he said that if there is an intent to travel requirement no one is going to ever have standing to bring the suit in any meaningful [way]. Justice Kavanaugh immediately agreed with that and then Laufer’s attorney went on to say that was because the trip would have already taken place before the person could get their relief.
10. I don’t see the issue with this case impacting screen readers because in that situation it is the person using the screen reader that is suffering a very specific kind of harm if the Internet site is not accessible to him or her or them. Same analysis for a voice dictation user, such as myself.
11. If the Supreme Court does not decide the case as moot and leaves it at that (that was very well could depend on Justice Thomas and Justice Alito), Laufer undoubtedly loses. The only question is what that decision look like.
12. Regarding advisory opinions, I have seen scholars argue that the Supreme Court does issue advisory opinions on occasion. I saw a lot of that discussion subsequent to the Supreme Court’s decision in the 303 Creative case. Some scholars argued that to their mind 303 Creative was not the first time the Supreme Court issued an advisory opinion, assuming that 303 Creative was an advisory opinion.
13. Curious why no one is talking about South Dakota v. Wayfair, which we discussed here. In that case, the Supreme Court made clear that the Internet could be a physical place or at least have every feature of a physical place.