A Gambit to Duck Supreme Court Review

Abuse of the U.S. legal system is rampant, and the Supreme Court has agreed to address an egregious example that has roiled and divided lower courts. But the plaintiff who started it all is now trying to dodge High Court review by claiming her case is moot. Let’s hope she and her lawyers don’t get away with it.

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Acheson Hotels v. Laufer is an appeal by a Maine inn operator that Deborah Laufer sued in 2020. Mrs. Laufer, who has difficulty walking without assistance and is vision impaired, claimed that the inn’s website lacked disability-accessibility information as required under the Americans with Disabilities Act (ADA). A federal court dismissed the suit for lack of standing because she had not suffered any direct injury. But the First Circuit Court of Appeals reversed, and the Supreme Court in March agreed to hear the case.

In July Mrs. Laufer’s lawyers suddenly asked the Supreme Court to dismiss her case. Why? Well, a lower court recently exposed the shady practices of Mrs. Laufer’s original legal team that have become a way to profit off the ADA. She’s using the disciplinary action against her own lawyer as an excuse to abandon her claim “with prejudice.”

As explained in briefs in the case, Mrs. Laufer is a self-appointed ADA “tester.” Over the years she has filed hundreds of cookie-cutter federal ADA suits against hotels and their owners over disability information on their websites. Mrs. Laufer, who lives in Florida, may never set foot on the properties. “Tester” plaintiffs are an example of today's industry of mass production ADA suits.

In June three federal district judges in Maryland exposed this practice and recommended disciplinary action against Tristan Gillespie, who had filed claims on Mrs. Laufer’s behalf. That three-judge panel of the court’s disciplinary committee issued a report saying Mr. Gillespie has filed hundreds of “boilerplate complaints”—with the same typos and misspellings—including as many as 16 in one day.

Each suit demanded $10,000 in attorney’s fees, though the judges found he likely spent little time per case. The judges said Mr. Gillespie violated the code regulating lawyer conduct “not once or twice, but hundreds of times.” And they said he engaged in a “method for extracting unwarranted attorneys’ fees from targeted hotels based on a well-worn settlement script.”

The judges found that the biggest “mitigating factor” in Mr. Gillespie’s defense is that he appeared to have “joined a pre-existing scheme” and was acting “at the direction of his boss,” Thomas Bacon, who represented Mrs. Laufer in her First Circuit appeal. The Bacon firm has filed more than 600 ADA suits for Mrs. Laufer, and 200 more for another tester plaintiff. Mr. Bacon has withdrawn as Ms. Laufer’s counsel of record but told her new attorneys that his “bar memberships are in good standing.”

While tester plaintiffs aren’t entitled to monetary damages, the judges note that Mrs. Laufer’s lawyers paid hundreds of thousands of dollars to a “compromised investigator” who did no real work on the cases. That investigator is the father of Mrs. Laufer’s grandchild. Mrs. Laufer acknowledged the relationship to the Supreme Court but denies taking money from the investigator.

Mrs. Laufer has a new legal team, but accepting her mootness claim would reward the legal practices she was part of. Acheson’s original petition for appeal to the High Court notes that three appellate courts have rejected “tester” standing, while two have accepted it. Mrs. Laufer is a litigant with nearly identical complaints in nearly all of them. This is a circuit-court split that typically warrants High Court review.

Acheson notes in its reply to the mootness claim that it has been forced to spend enormous time and money to defend itself against this legal abuse. While Mrs. Laufer is abandoning her First Circuit case, she is not abandoning her claim that she has standing in these cases—which means the issue isn’t moot. As Acheson writes, she is “abandoning her case to pave the way for Laufer and similar plaintiffs to resume their campaign of extortionate ADA suits against unwitting small businesses without the hindrance of an adverse ruling from this Court.”

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A mootness claim has become a more frequent dodge to avoid Supreme Court review. In 2020 the Justices agreed to hear a challenge to New York City’s restrictive gun law. The city then suddenly repealed the law and claimed mootness. A Court majority bought the ploy, but Justices Samuel Alito, Clarence Thomas and Neil Gorsuch noted in dissent that “by incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.”

Mrs. Laufer and her lawyers are trying to manipulate the Court’s docket in the same way, hoping to avoid a ruling against the legal abuse exposed by federal judges.