By Amanda McBain
A sharp rise in the filing of Americans with Disabilities Act (ADA) Title III actions between 2013 and 2021 has furthered the “for-profit” lore surrounding arguments against the standing of serial litigants. Critics have construed the mere propensity of ADA litigants to settle their lawsuits as the basis for a disingenuous narrative: serial litigants, often referred to as “testers,” are litigating spurious claims with the sole intent of financial gain.
In Acheson Hotels, LLC v. Laufer, the parties presented the Supreme Court with the question of whether an ADA “tester” has standing under Title III to bring an action against a hotel for its website’s lack of sufficient accessibility information, even if the tester never intended to become a guest. Stemming from a review of claims asserted in the amicus briefs filed in Acheson Hotels and Justice Thomas’ concurring opinion, this Comment analyzes and responds to the narrative that serial litigation is a “for-profit” industry propelled by fee-shifting statutes or settlements and dependent on “boilerplate allegations” that lack a proper injury-in-fact. Through an empirical analysis of complaints and the role of settlements in ADA actions, this Comment provides an answer to the myth surrounding serial litigation and assesses the proper intent of its litigants.