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Americans With Disabilities Act Tester Challenge Dropped by Supreme Court

    Client Alerts
  • December 08, 2023

Much to the dismay of many small businesses, the U.S. Supreme Court on Tuesday dismissed its review of a case that could have limited high-volume lawsuits against entities alleged to have violated public accommodation accessibility provisions of the Americans with Disabilities Act. In these situations, a so-called disabled “tester,” usually affiliated with a plaintiffs’ law firm, allegedly visits up to dozens of businesses per day, resulting in demand letters or lawsuits accusing the defendants of failing to meet ADA accessibility requirements.

While Title III of the ADA (which covers public accommodations) does not allow recovery of monetary damages, the plaintiffs can obtain their attorneys fees from successful suits. Many small businesses faced with the potential for protracted litigation settle those claims even if they have substantive defenses to the lawsuits. The case under review by the Supreme Court could have answered the question of whether the tester must actually intend to use that business’ products or services in order to maintain an ADA claim.

The court concluded that the matter was moot because the plaintiff had voluntarily dismissed the claim after her lawyer was sanctioned by a lower court. In the dismissal order, Justice Amy Coney Barrett noted that the Supreme Court may revisit this issue in a future matter. For now, however, restaurants, hotels, retail establishments, and other businesses are likely to receive continuing waves of lawsuits not necessarily connected to a disabled person who tried but could not access their premises.

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