Most people hate litigation. If they are sued, they’d like their case to be dropped.

Not this defendant. He wants to defend his case before the US Supreme Court.

Why?

He believes if the current case is actually dismissed, he’ll be sued again and again. He wants a final resolution. For him. And other similarly situated businesses.

Let me explain.

Deborah Laufer has physical disabilities and vision impairments. She has worked extensively as a “tester.” A tester searches for potential violations of the Americans with Disabilities Act, and then works with a law firm to collect a settlement from a business. It can be very lucrative.

Laufer filed a lawsuit in Maine against Acheson Hotels. She alleged that the website for a hotel operated by Acheson failed to provide enough information about the inn’s accommodations for people like her, those with disabilities. She alleged this paucity of information was a violation of the Americans with Disabilities Act.

A lower court threw out her lawsuit. It ruled that Laufer had no standing to sue. She had zero plans to actually visit the hotel. As a tester, she just wanted to find a cause of action. It concluded that she was not injured by the website’s lack of information. No harm, no foul.

This was then appealed to the 1^st Circuit. This Circuit reinstated the lawsuit.

Different circuit courts in the US have come to different conclusions. Three circuit courts of appeals – the Second, Fifth, and Tenth – have rejected standing in “tester cases.” The First and Eleventh have held that allegations such as those in Acheson Hotels do establish standing. You need standing to actually sue.

When there is a split decision in the circuit courts of appeals, this is ripe for resolution by the Supreme Court.

And this case was scheduled for oral argument before the Supreme Court on October 4^th.

Now, Laufer wants this litigation to halt. Why? If SCOTUS rules against her, that’s the end of tester cases in federal court for situations that have allowed her and/or law firms working with her to profit.

Laufer now asserts, via new counsel, Kelsi Brown Corkran of the Georgetown University Law Center,

the justices dismiss Laufer’s case as moot. Corkran cited recent disciplinary proceedings in a federal court in Maryland against Tristan Gillespie, who has filed over 600 lawsuits under the ADA on behalf of Laufer and other “testers.”

Tristan Gillespie was Laufer’s prior attorney. Tristan is in a heap of trouble.

A report issued on June 30 by three federal judges recommended that Gillespie be suspended from practicing before the Maryland court for six months. It noted that Gillespie had filed as many as 16 “tester” complaints in one day, each seeking $10,000 in attorneys’ fees even though it was “highly improbable” that he had actually spent that much time on each lawsuit. The report found that Gillespie had violated the rules governing the conduct of lawyers “not once, or twice, but hundreds of times,” and that he had “litigated his cases with his clients as an afterthought” – failing, for example, to keep his clients up to date on settlement agreements or to inform them of his decision to dismiss over 100 cases when facing the prospect of disciplinary action.

Laufer’s new attorney said the case before SCOTUS should be dismissed so that the disciplinary actions against the attorney she used previously don’t become an unnecessary distraction.

Uh huh.

Laufer nonetheless opted to voluntarily dismiss her case in the district court so that the allegations against Gillespie do not become a distraction “from the merits of her ADA clams and everything she has sought to achieve for persons with disabilities like herself.” Because she has dismissed her district court case, Corkran contended, there is no longer a live controversy for the Supreme Court to decide. And because Laufer is responsible for the fact that there is no longer a case for the justices to decide, Corkran continued, the 1st Circuit’s decision in her favor should not stand.

Adam Unikowsky, the lawyer for Acheson Hotels, said dismissing this case would be unfair to his client. The circuit split needs a resolution. And he wants SCOTUS to stick the final nails in the coffin to tester cases.

“Laufer’s litigation program,” Unikowsky contended, “was recently revealed to have been an unethical extortionate scheme, and the unapologetic purpose of Laufer’s effort to moot this case is to ensure that she or similar plaintiffs can continue pursuing similar schemes” by avoiding a ruling from the Supreme Court in Acheson’s favor, which would block all such “test” cases nationwide.

If Laufer’s case is dismissed, Unikowsky suggested, Acheson could be sued again, even though it has spent substantial resources defending against her lawsuit. And more broadly, he added, it will “set the precedent that it is perfectly fine for the plaintiff to abandon her case at the last minute to avoid an adverse ruling.”

Why should doctors care about this case? How does an ADA case involving hotels apply to them?

We featured two podcasts with Nick Pujji of the Dentons Law Firm focused on a scourge taking a bite out of West Coast physicians.

“There is a scourge taking a bite out of West Coast physicians. What kind of scourge? A legal scourge. Doctors of all specialties (but especially those in cash-pay specialties) have been targeted by frivolous lawsuits specific to website accessibility and the Americans with Disabilities Act (ADA). Thankfully, remedies exist. We spoke with Mr. Nick Pujji, of the Dentons Law Firm, at length about this topic. We discuss how doctors can reduce the risk they’ll be sued for frivolous ADA challenges – and what do to in the event they are sued. Mr. Pujji’s wisdom is invaluable – every doctor NEEDS to protect their practice BEFORE they sued. Our podcast has the details. (Episodes 65 and 66).”

The scourge in question?

A hearing-impaired tester “patient” navigated to plastic surgeons’ websites, noting that an occasional YouTube marketing video did not have closed captioning enabled. She couldn’t read the marketing message in the videos. Her attorney was collecting about $10k to $15k per settlement. This “patient” didn‘t even live in California where the surgeons worked. And she had no noticeable interest in having any surgical procedure done. She was a tester.

Will the SCOTUS decision affect tester lawsuits on website accessibility under ADA law?

Maybe.

There could still be lawsuits under state law. But perhaps the pendulum will swing in the other direction.

What do you think?

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation. Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases. Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors. In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders. Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.