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Greetings, Court Fans!

On Tuesday, the Court issued its first decision of the term: Acheson Hotels, LLC v. Laufer (No. 22-429). This was set to be a significant decision on the standing of so-called “testers”—individuals who file lawsuits against businesses whose websites are not ADA compliant even if they don’t have genuine plans to patronize the businesses in question. But we’ll have to wait for an answer to that question, as the tester in this case dropped her lawsuit, mooting the case. Still, the Justices managed to say a fair amount about standing, mootness, and (disputed) litigation gamesmanship in the course what was technically a 9-0 decision to dismiss.

The case begins with Deborah Laufer, a Florida resident who (presumably due to her personal disability) has taken a great interest in ensuring that hotel websites comply with the Americans with Disabilities Act. Among other things, ADA regulations require hotels to provide certain information about the accessibility of their rooms on their websites and on external hotel booking sites. When Laufer finds a hotel website that isn’t compliant, she often sues the hotels; and by “often,” we mean she’s filed hundreds of lawsuits alleging noncompliance with the ADA. Usually, the cases quickly settle, but in the handful that haven’t, the hotels have often argued that Laufer lacks standing to assert her ADA claims, because she doesn’t have any real plan to (or even interest in) visiting the hotels in question. Her suits have singlehandedly created a circuit split on that issue, with the First, Fourth, and Eleventh Circuits concluding she has standing, while the Second, Fifth, and Tenth have held she does not.

The defendant in the First Circuit case, Acheson Hotels, sought certiorari, and Laufer herself supported its petition, hoping the case would resolve the issue once and for all. But shortly after Acheson Hotels filed its opening Supreme Court brief, the case took an unexpected turn: A lawyer who represented Laufer in many of her suits was temporarily suspended from the practice of law for lying in fee petitions and settlement negotiations in one of Laufer’s other cases. When these and other allegations of impropriety came to light, Laufer voluntarily dismissed allher pending suits with prejudice, including her complaint from the District of Maine that was the basis for the case before the Court. She then filed a suggestion of mootness in the Supreme Court. While Acheson Hotels agreed the case was likely moot, it argued that the Court still could and should resolve it on a different jurisdictional ground, namely Laufer’s lack of standing. After all, dismissing the case for mootness wouldn’t resolve the circuit split, so the Court would have to decide that issue eventually. Why not just do it now?

A unanimous Court concluded that the better approach was to resolve the case on the easy ground—mootness—and save the standing question for another day. Writing for the Court, Justice Barrett was sympathetic to Acheson Hotels’ concern that litigants shouldn’t be allowed to manipulate the Supreme Court’s jurisdiction by withdrawing their cases when it appeared they might be heading for a Supreme Court defeat. But Barrett didn’t think that accurately described what Laufer had done: She appeared to be acting in good faith by withdrawing all her pending suits after serious allegations of misconduct against her lawyer had come to light. And Laufer represented that she planned to get out of the ADA tester game permanently and wouldn’t file any future suits. Without Laufer, who was more or less personally responsible for the circuit split, who’s to say that the Court would ever need to resolve the standing issue? So mootness was the way to go.

Once the appeal became moot, the question became what to do about the First Circuit’s holding that Laufer had standing. In a one-sentence analysis, Barrett concluded the Court should follow the so-called Munsingwear doctrine, which provides that when a case becomes moot on appeal, the appropriate remedy is to vacate the lower court’s decision. The basic idea behind that is that allowing the decision to remain good law deprives the losing party of the chance to get it reversed on appeal, which is unfair.

Two solo concurrences took issue with each part of the Court’s decision, while agreeing with the judgment of dismissal. In a lengthy solo opinion, Justice Jackson argued that the Court should rethink Munsingwear and its automatic vacatur rule. Instead, she argued that lower courts’ judgments in now-moot appeals should be vacated only when fairness or some similar equitable consideration warrants that result. Mere loss of the opportunity to reverse an unfavorable decision isn’t enough: Nobody has a right to have the Supreme Court review their case, so disappointment at the loss of an opportunity to win in the Supreme Court is hardly that unusual. All that said, Jackson concurred in the vacatur in this case, because the Supreme Court had consistently vacated lower courts’ decisions in prior cases where the prevailing party made the appeal moot through some voluntary action (like withdrawing their complaint). In the future, though, she urged parties to present an equitable argument when they seek vacatur based on mootness.

Justice Thomas, meanwhile, would resolve the case on standing, not mootness. First, he thought that made more sense, because the former logically comes before the latter: Standing asks whether Laufer had enough of a concrete interest in the case to give her standing the day her suit was filed. But mootness asks whether something that happened after that point made the case no longer suitable for adjudication. Moreover, he was less inclined to give Laufer the benefit of the doubt, suggesting that her voluntary dismissal had less to do with the allegations against the lawyer who represented her in other cases and more to do with the fact that she became concerned she might lose. Turning to the merits of the standing argument, Thomas concluded that Laufer lacked standing because she didn’t (and couldn’t) allege that Acheson Hotels had discriminated against her based on her disability. And to the extent the ADA regulations could be understood as requiring Acheson Hotels to post certain information about its rooms’ accessibility, its failure to do so didn’t harm Laufer, because she had no real interest in visiting Acheson Hotels’ properties in Maine. The task of generally enforcing ADA regulations through enforcement proceedings falls primarily on the Executive Branch; Laufer can’t step into its shoes by bringing private civil suits whenever she finds some hotel out there that violated the law when that violation doesn’t meaningfully harm her.

So, despite a fairly lengthy first decision of the term, we have no resolution of the question presented. And, if Laufer herself is out of the testing game, it’s possible this specific question won’t arise again.