Acheson Hotels, LLC v. Laufer
Oral argument transcript · No. 22-429 · October Term 2023 · argued October 4, 2023 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Adam G. Unikowsky, Washington, D.C., for the petitioner
- Erica L. Ross, Assistant to the Solicitor General, amicus curiae
- Kelsi B. Corkran, Washington, D.C., for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument this morning in Case 22-429, Acheson Hotels versus Laufer. Mr. Unikowsky. ORAL ARGUMENT OF ADAM G. UNIKOWSKY ON BEHALF OF THE PETITIONER
Adam G. Unikowsky: Mr. Chief Justice, and may it please the Court: Respondent does not face an imminent injury from the absence of accessibility information at the website of a hotel she has no interest in visiting. Respondent faces neither an informational injury nor a stigmatic injury. She does not face an informational injury because she has no use for the information she seeks. She's not interested in going to the hotel, so she has no reason for information about whether it is accessible. Nor does she face a stigmatic injury. This Court has held that a person is injured when she is personally subject to unequal treatment. But that requirement is not satisfied by a plaintiff who searches for hotel Official 1 websites on the internet to check whether they comply with her interpretation of the ADA. Finally, the Court should decide the question presented in this case. The circuits are divided. The question is important. The arguments are fully aired. And if the Court doesn't decide the question here, it may not have another opportunity to do so. The Court should not bless a legal strategy of filing large numbers of lawsuits, settling almost all of them, and abandoning the rare case that threatens to create adverse precedent so as to facilitate the filing of another round of lawsuits. I welcome the Court's questions.
Justice Thomas: But Respondent says that she has withdrawn her suits. So why should we decide this? I -- it seems as though it's -- it's finished.
Adam G. Unikowsky: Well, Respondent has withdrawn her suit. I mean, she hasn't promised not to bring new suits in the future. And if she doesn't, another plaintiff presumably will. Respondent's position is that any Official 1 person with a disability with accessibility needs in America who visits a website can bring a lawsuit, so, presumably, another plaintiff will come forward and -- and start bringing the same claims.
Justice Thomas: Well, do you admit, though, that it would be easier to simply moot this out and wait on a suit that is still pending for another round to discuss standing?
Adam G. Unikowsky: I'm actually not really sure it would be easier because I think that even if the Court does what Respondent asked, it would still be a significant precedential decision. I mean, the Court would essentially be -- be blessing the legal strategy over our objection of filing large numbers of lawsuits and -- and abandoning them at the last minute, and that, I think, would create a template for -- for future plaintiffs to rely upon. So --
Justice Sotomayor: I'm sorry, I -- I don't understand. You admit that this plaintiff is not entitled to monetary relief.
Adam G. Unikowsky: Yes. Official
Justice Sotomayor: The hotel is owned by a different entity now, correct?
Adam G. Unikowsky: Correct.
Justice Sotomayor: And so you would need a new plaintiff and you would need a new defendant --
Adam G. Unikowsky: Well, Your Honor --
Justice Sotomayor: -- to get a precedential -- to get a decision that's not advisory, because what you're saying to us, the issue is important. This plaintiff gets nothing. The defendant has to be different because it's a different entity running it. So tell me why it's not moot and tell me why we wouldn't be just giving an advisory opinion.
Adam G. Unikowsky: So, if there was ever a live controversy, it's definitely moot at this point. We're not disputing that, Your Honor. What we're simply saying is that there was never a live controversy in the first place and the Court should therefore so hold. In other words, the Court should say that whether it's moot is sort of immaterial because, from Official 1 day one, there wasn't a case or controversy.
Justice Sotomayor: I -- I'm sorry, I don't know why you haven't answered -- haven't answered my question. Why isn't this purely advisory once there's no longer a live controversy between the parties before us?
Adam G. Unikowsky: I don't think it's an advisory opinion at all, Your Honor. Both parties agree that the correct disposition of this case is to hold that there's no Article III case or controversy. We simply disagree on the reasoning for that.
Justice Sotomayor: Well, there's prudential doctrines. Standing is one of them. Mootness is another. But I'm -- I'm unaware of any case where this Court had a standing and mootness issue and decided standing rather than mootness first.
Adam G. Unikowsky: Your Honor, I'm -- I'm not sure there's been a case in this particular configuration that's arrived at the Court before, but I don't think that there is a dispute in this case that the Court has the jurisdiction to decide either of the Article --
Justice Sotomayor: Well, we had a -- Official 1 yes, we can decide either --
Adam G. Unikowsky: Yes. It's -- it's --
Justice Sotomayor: -- and so I'm asking you in what case have we ever done this before, decided standing, which is a substantive question, when there's no live controversy before us?
Adam G. Unikowsky: So I don't think the Court has decided on this particular constellation of facts a standing issue. But, again, both parties agree that there's no case or controversy. The only question is why.
Chief Justice Roberts: I -- I suppose logically standing is an antecedent question to mootness, right? You can't have something moot until you have a case.
Adam G. Unikowsky: That's correct, Your Honor. I think that the first question the Court should decide in the case is whether there is a case or controversy in the first place. The concept of mootness almost presupposes that at some point it wasn't moot. And we think that this case -- there was no case or controversy in this case from day one. Official 1 That's the question the Court granted certiorari to decide.
Justice Jackson: Right. But we've never done that before is what I understood your answer to Justice Sotomayor to be. So, if it's sort of a logical antecedent, why -- why hasn't this Court set it up in that way? It would seem to me the question is which is the easier resolution, and so, to the extent that you both agree that this is moot, why isn't that just the end of it?
Adam G. Unikowsky: Well, Your Honor, in terms of have -- not having done it before, it's -- it's very unusual for a plaintiff to -- for a respondent to prevail in the court of appeals to abandon her claim in the Supreme Court. That comes up very rarely. And I don't think I've ever seen a case quite like this one where the seeming purpose of the abandonment of the case is to allow other plaintiffs to --
Justice Jackson: No, I understand that. But, when it happens -- you know, the -- cases do get mooted, and when it happens, the defendants' ordinary course of affairs is to Official 1 argue mootness, please dismiss the case, it's over. And you're saying that, that -- that the case is moot. You agree the case is moot. So I guess I -- with at least circling back to Justice Thomas's question, why doesn't that just resolve it? You're -- you're asking us to take on extra work to end a case when we've all agreed it has to be ended, and, ordinarily, that would be all.
Adam G. Unikowsky: I -- I think the Court, with apologies, should take on the extra work, Your Honor. (Laughter.)
Adam G. Unikowsky: I think the --
Chief Justice Roberts: What -- I'm sorry to -- well, go ahead.
Adam G. Unikowsky: I -- I -- (Laughter.)
Adam G. Unikowsky: -- I think the reason it should decide the standing question in this case is that I think the Court should have institutional concerns about the strategy of abandoning cases at the last minute, especially if it's going to set a template for future plaintiffs to do the same thing. Official
Justice Jackson: Isn't the remedy for that Munsingwear, though? I mean, shouldn't your -- shouldn't your answer be moot the case and vacate the lower court ruling to the extent there is one against us?
Adam G. Unikowsky: I don't think that's good enough, Your Honor, because, first of all, the First Circuit's case is still going to be persuasive authority to all district courts in the First Circuit, who are going to know that if the case goes back up, then, presumably --
Justice Jackson: Yeah, but that's what the Munsingwear remedy is about, isn't it? I mean, it's -- it's -- it's so that you don't solve -- suffer any harm, we vacate the lower court opinion because, if you're right, there was some kind of tactical strategy here, and then we all go home.
Adam G. Unikowsky: Well, remember that Ms. Laufer's victory in the Fourth Circuit remains binding precedent in that court. And I just think this case is different because it's part of a broader litigation program of bringing hundreds and hundreds of lawsuits. That's what I think makes this case unique. Official
Justice Alito: May I follow --
Chief Justice Roberts: Which --
Justice Alito: -- up on -- I'm sorry. Go ahead.
Chief Justice Roberts: I was just going to say I'm as concerned as anybody about our workload, but -- (Laughter.)
Chief Justice Roberts: -- why -- why are you sure that which one's easier? I mean, on the one hand, you have the standing question. Maybe people will think that's easy or maybe not. The mootness question of whether or not a plaintiff can moot a case to manipulate the jurisdiction of this Court, I mean, the mootness papers weren't filed until after the Petitioner's opening brief. And we certainly have the authority under our precedent to decide, if you have two jurisdictional issues, which one to do first. And in terms of, you know, I think it's a difficult question as to whether or not somebody, particularly when you have a program of litigation like this around the country by Official 1 people who may or may not have standing, can manipulate the Court's jurisdiction by, after the Court's granted cert, mooting out the case.
Adam G. Unikowsky: I agree with that, Your Honor. And I think that if the Court were to write a precedential decision addressing or -- or, you know, agreeing with Respondent's theory of how this case should be resolved, presumably, the Court would address our objections as well --
Justice Sotomayor: Counsel --
Adam G. Unikowsky: -- and that would --
Justice Sotomayor: -- in this case, this plaintiff has dropped all her actions. The lawyer who did this strategy has suffered disciplinary proceedings. She's represented she's not going to use him anymore. So, yes, there may have been a bad tactic in place, but you're ascribing a motive to other people before it's happened. And in every other case, I don't think every case suffers from this same set of failings.
Adam G. Unikowsky: I -- I agree 100 percent, Your Honor. We are not suggesting that all testers or all testers' counsel have Official 1 acted unethically. The only person who was subject to a sanctions order in this is Mr. Gillespie, who's the -- the local counsel in the District of Maryland. I think that in other cases with other plaintiffs, I'm not suggesting there's going to be false statements to courts and opposing counsel, but the fundamental program here is to -- to file large numbers of lawsuits and settle almost all of them. Even, you know, ethical ADA lawyers do that. And I think the Court should be concerned that whether that's permissible will not see the -- the bright lights of appellate review if the Court blesses a strategy of abandoning these cases in the rare situation where the defendant decides to litigate the case all the way up and there's a possibility of adverse precedent.
Justice Barrett: Mr. Unikowsky, I mean -- I'll return to our workload for a minute. I mean, often, when we're in the district court -- I mean, I see this as a prudential issue and I've thought a lot about it because, I mean, I think it's a difficult Official 1 prudential call. But, in the district court, when you have two -- you know, if you have a more difficult issue and an easier issue -- and I'll just assume for present purposes that mootness is easier -- you know, the district court doesn't know if the issue's going to arise again. You know, when, in Pearson, we got rid of the Saucier two-step, we said, well, listen, you know, he doesn't know, a higher court may be considering the issue, the district court is delving in and expending all these resources on something that may never come up. But institutionally, if we're thinking about allocation of resources, it seems to me that that might be different here because I take it what you're saying is that there's an entrenched split that we're going to have to decide at some point, and significant resources have already been invested in this case, and you filed your opening brief before the suggestion of mootness was filed, thereby investigating -- yeah -- sorry, investing resources, and that we're going to have to do Official 1 this all over again.
Adam G. Unikowsky: That is correct, Your Honor. And just to add one additional point on to the table, I mean, there's a lot of judicial resources expended just by these lawsuits. I mean, when you have, you know, 200 lawsuits being filed in federal district courts, the judges are expending resources on that. They -- they -- individual judges may be deciding the standing question on their own without guidance from this Court. So it seems to me that if the goal is to save judicial resources, of course, as Your Honor said, this Court's resources might be saved if it just decides the question presented one way or another. If we think of the entire federal judiciary, I think --
Justice Kagan: I wonder whether --
Justice Alito: Well, the -- suppose that there's a case that involves an issue that has divided the courts of appeals. There is an entrenched split. It would be helpful to provide guidance on this issue and not allow the split to persist. But the case before us is dead as a doornail and is not going to arise Official 1 again between these parties. Would you say there that for the prudential reasons that have been mentioned, it would be permissible for us to decide the issue?
Adam G. Unikowsky: I don't think the Court could decide the merits. I think that under Article III, that's just flatly banned. But this case is different because the question presented is a question of Article III, so the Court has the jurisdiction to decide that jurisdictional question.
Justice Kagan: But --
Justice Alito: Well, but doesn't that look just like an advisory opinion?
Adam G. Unikowsky: I don't think it's an advisory --
Justice Alito: I mean, we're not -- we're not -- we would not be addressing anything that is of relevance to the case that is before us. We would be addressing an issue that should be resolved. It's an advisory opinion. There are arguments in favor of advisory opinions. They just happen not to be consistent with Article III of the Official 1 Constitution.
Adam G. Unikowsky: I -- I disagree, Your Honor. I think that the judgment of this Court is going to be that there is no case or controversy. That's not an advisory opinion. That's disposing of the case in front of the Court. And I think the Court is free to state the reasoning that we are advocating in this case as part -- in this case, excuse me, as part of its judgment that there isn't a case or controversy under Article III.
Justice Kagan: I mean, it still feels a bit unjudicial, if I may say, so that the question is not just resources but -- but something broader than that. And I take the point that each of these is a jurisdictional issue and that there's nothing jurisdictionally precluding us, that this is a matter of prudence. But, when you look at a case that's dead as a doornail several times over, you know, the -- the -- the case has been dismissed by the plaintiff. The defendant is totally different. The defendant's website, everybody agrees, is now in compliance with the ADA. Official 1 So this is, like, dead, dead, dead in all the ways that something can be dead. And to use that case as the vehicle for deciding an important issue, an issue that probably is going to need to be decided at some point but surely could come up in a live case, I -- I -- I -- I guess it just doesn't seem like something that a court should -- should be anxious to do.
Adam G. Unikowsky: Well, just to address some of the subsidiary issues Your Honor mentioned, the question of whether the updates to the website made the case dead is actually disputed among the parties. The First Circuit held and Respondent continues to argue that that didn't moot the case. So I think that that would be a difficult -- maybe not difficult, but the Court would have to --
Justice Kagan: Well, it's not disputed that the hotel's website is in compliance. The only thing that's in dispute is what the issue is with respect to, like, hotels.com. But the hotel is now owned by somebody else, the hotel is in compliance in terms of its own website, and, you know, most Official 1 importantly, the plaintiff has dropped this case.
Adam G. Unikowsky: Right. So, in -- in terms of the sale of the hotel, so Acheson Hotels remains the defendant in this case. It would be the subject of any hypothetical injunction and fee award. So we don't think that moots the case unless there's a court order substituting the new defendant, which never happened. So I'm -- I'm not sure that's a reason not to decide the question presented. But, look, I --
Justice Kagan: Yeah, I think you're avoiding the main --
Adam G. Unikowsky: Okay. I understand Your -- Your Honor's argument that if they've dropped the case, why are you deciding this big question. And, yes, that is certainly a discretionary consideration that the Court should consider in deciding how to dispose of this case. It is a weight on one side of the balance. And I just think that the weights are greater on the other side of the balance when you consider the institutional considerations Official 1 that should lead the Court to decide the question presented, such as a concern about blessing the legal strategy in this case of Respondent, which will be invoked in future cases by other litigants because the same thing is going to happen. A plaintiff is going to file a large number of lawsuits, and in the rare case that goes up, the plaintiff will abandon the case at the last minute, and if there's push-back from either the court or the defendant, the plaintiff is going to say look at what happened in the Acheson case; the Supreme Court said it was perfectly fine to adopt that legal strategy.
Justice Jackson: But, if it's going to happen again, why don't we wait until it happens again, and then we have the pattern you're talking about? What you're saying is resolve it now because you can foresee that that will occur, and I guess I just don't understand why that's so convincing. It -- it seems to me in tension to suggest that this issue will come up again and that we should take it now --
Adam G. Unikowsky: No, I -- I think -- Official
Justice Jackson: -- because we should just wait until it comes up again.
Adam G. Unikowsky: Well, I think what's going to happen, Justice Jackson, is that, you know, in the court of appeals, a plaintiff will drop the case, and then the plaintiff will cite this Court's decision in this case to say that's fine, and then the court of appeals will follow this Court's precedent in this case and allow the plaintiff to drop the case. And then I guess, theoretically, a petition for certiorari could be filed, but it's not clear that the -- the defendant has -- has standing to even file that petition for certiorari when the defendant actually won in the court of appeals. And so it's actually not clear to me this question will come back if future claims follow this -- this template. And, again, in the Court -- in Your Honors' -- in this case, the Court's going to write an opinion. Even if it resolves this case on the ground Respondent has advocated, I would guess it's going to --
Justice Jackson: Why would -- wouldn't our opinion on mootness be both Official 1 parties have agreed that this case is moot; therefore, we have no live controversy, period?
Adam G. Unikowsky: Well, I mean, we've opposed that disposition, and so I -- I -- I don't know, but --
Justice Jackson: I'm sorry.
Justice Gorsuch: Counsel -- JUSTICE JACKSON? Did you say it's not moot?
Adam G. Unikowsky: No. We're saying it's moot. We just don't think the Court should resolve the case on that ground. And so I would -- I would guess the Court would address our arguments. I'm -- I'm sorry, Your Honor.
Justice Gorsuch: With respect to standing, would it be sufficient if a plaintiff were to allege in -- in her complaint that she does intend to visit the hotel, period?
Adam G. Unikowsky: Yes, that would be enough for standing, Your Honor. Then the person -- then there's a downstream consequence from being deprived of the information. We haven't disputed that if there's a person with concrete travel plans who says, look, I want to Official 1 --
Justice Gorsuch: Well, concrete travel. I'm talking about an allegation in a complaint, just I -- I -- I -- I may someday visit this hotel.
Adam G. Unikowsky: I don't think "I may someday" is enough. That kind of sounds like the allegations --
Justice Gorsuch: "I will someday."
Adam G. Unikowsky: "I will" -- I think "I will" -- "someday" probably is not enough either.
Justice Gorsuch: "Someday" not good enough?
Adam G. Unikowsky: I don't think -- under Lujan case, the Court held that "someday" plans aren't good enough for standing.
Justice Gorsuch: In the next decade? (Laughter.)
Adam G. Unikowsky: I think it's got to be concrete plans. If you're -- if you're going to Wells next summer and you're trying to make a reservation at Coast Village, I think that's enough for standing.
Justice Sotomayor: But that's not -- Official
Chief Justice Roberts: With --
Justice Sotomayor: -- the way people travel, counselor. When people travel, or at least when I do, and I think I'm not abnormal in this sense, I look at a place, I look at various sites to decide where I want to stay, I look at price points, I look at the level of accessibility, whatever. All right? So what you're saying is that there's no stigmatic harm to a disabled person in their ability to do what I do, look at a place and say: I may want to visit Venice, I may want to visit Florida, I may want to visit California, and I want information about all the sites there so I can decide what suits me best. And you're saying you need something much more concrete than that?
Adam G. Unikowsky: So --
Justice Sotomayor: I've been deprived of my ability to make an informed choice about where to visit and I'm not harmed stigmatically?
Adam G. Unikowsky: Well, so it seems to me that if the person is traveling and is checking a few hotels and is trying to decide Official 1 where to stay, but the person's planning to travel, then I think that there would be standing. Like, if you're saying I want to go to Ocean City and I'm looking at two or three hotels, not sure which one to stay at --
Justice Sotomayor: But the person who says, I want to find the place to visit -- Ocean City, Atlantic City, whatever other city -- and now I'm doing my investigation of all three cities and I decide against your city because I couldn't find enough accessible places, I'm not harmed?
Adam G. Unikowsky: No, I -- I don't -- I don't think so. I mean, I don't think that if you have no idea where you're going to go and you're just going to a hotel website for some randomly picked hotel in a city and see it's not accessible, but you don't have any --
Justice Sotomayor: But why aren't I -- I don't understand. Discrimination, I thought, meant that I'm being treated differently than other people. If I go on a drive to a place and there's a sign up that says "No disabled person is welcome," I've been discriminated against, correct? Official
Adam G. Unikowsky: Yes.
Justice Sotomayor: What's different than my going to a website and the website saying nothing about disability, so I know I'm not welcome there?
Adam G. Unikowsky: Well, Your Honor, if you see the sign that says "No disabled people welcome," I actually don't think that there's standing unless you want to enter the business. So, if you -- if you're on the internet and you see a sign of some business and --
Justice Sotomayor: So it's just -- oh, so in -- the -- the people who used to go to lunch counters and wanted to just sit down, they didn't necessarily want to try the food there --
Adam G. Unikowsky: No, no.
Justice Sotomayor: -- those people weren't discriminated against?
Adam G. Unikowsky: They were definitely discriminated against because they were prevented from sitting at the lunch counter. That's the discrimination.
Justice Kagan: Could I -- could I just go back to what you think would be enough? Official 1 So, if a person said, I'm -- I'm checking out -- I'm trying to find a fully accessible hotel in a -- a small, great beach town.
Adam G. Unikowsky: Mm-hmm.
Justice Kagan: So they're looking at a bunch of things, trying to find a fully accessible hotel in the kind of beach town that they want to go to. That would be enough?
Adam G. Unikowsky: May I answer the question, Your Honor?
Justice Kagan: Please.
Adam G. Unikowsky: Because I -- I --
Chief Justice Roberts: Yes.
Justice Kagan: Please. (Laughter.)
Adam G. Unikowsky: I -- I think that would be enough, Your Honor, yes.
Justice Kagan: Okay. So not concrete travel plans, but, you know, some indication that you're seeking this information for a purpose?
Adam G. Unikowsky: Well, I think it has to be a little more just than a generalized purpose. If you're planning to travel, you Official 1 know, if you're not decided whether to go to Ocean City or Rehoboth or Bethany Beach, you're checking your options in all three of them, then I think that probably is enough. I don't think you have to say that you're going to this specific stretch of road in -- in Ocean City.
Chief Justice Roberts: Thank you, counsel. If -- how many hotels did Ms. Laufer contact in how many different places?
Adam G. Unikowsky: Depending on how you count, because sometimes lawsuits can count as two or one, it's definitely more than 500 and perhaps more than 600.
Chief Justice Roberts: So, if she alleges that she may well go to this particular hotel, you would be able to challenge the veracity of that allegation, right?
Adam G. Unikowsky: Yes, Your Honor. That -- that happened in this case, in fact. There's a declaration in which Respondent said she would take this long road trip to Maine and other places, and the court basically found that not plausible.
Chief Justice Roberts: Okay. Thank Official 1 you. Justice Thomas? Justice Alito?
Justice Sotomayor: In fact, she did, however. She did take a long trip.
Adam G. Unikowsky: Ultimately, the record shows that she took a road trip to Maine, yes, Your Honor.
Justice Kagan: You -- you have a statement a -- a couple of times in your brief, you say you're not challenging the use of testers in ADA litigation, and -- principally distinguish this case to one where there's an attempt to enter a building. So I guess I'd like to hear what you mean by that, what you think would be permissible, and why it's different from this case.
Adam G. Unikowsky: That's right. So we've distinguished the scenario where someone is actually trying to physically enter a building and, but for the accessibility barrier, the person couldn't enter. And that's because we understand the inability to access a building as a traditional Article III injury Official 1 regardless of the motive for entering the building.
Justice Kagan: So suppose that you were trying to enter a hotel --
Adam G. Unikowsky: Mm-hmm.
Justice Kagan: -- but you didn't really want to stay at the hotel.
Adam G. Unikowsky: I think that probably would be if you, like, were physically prevented from that.
Justice Kagan: But you want to -- but you want to go in.
Adam G. Unikowsky: Yeah. That's right. But that --
Justice Kagan: Same, like you want to enter a concert venue, even though you don't want to stay for the concert.
Adam G. Unikowsky: So every court of appeals to have addressed the question Your Honor just described has found standing on those facts, and so we haven't contested that in our briefing.
Justice Kagan: And I presume that that's similar -- I mean, tell me if you think this is wrong -- to -- let's say that there's a Official 1 blind person who, you know, can't access a website at all because there aren't the -- there's not the appropriate technology for the visually impaired to make use of the website. Would you say also that that's sort of like the person who wants to enter a building?
Adam G. Unikowsky: So --
Justice Kagan: That, you know -- and the visually impaired person is, in fact, a tester and is just checking out different websites?
Adam G. Unikowsky: So we -- we actually haven't taken that position. There's -- there's three courts of appeals decisions, one of which -- one of which was written by then Judge Barrett, involving visually impaired testers who go to websites of credit unions that they weren't even statutorily eligible to join, and those courts held that the plaintiffs did not have standing, and we actually think those are correctly decided.
Justice Kagan: Yeah, I -- I understand that. But, if a -- if a person is -- is, you know, just, you know, checking out websites in the way that, you know, not -- Official 1 it's not like I'm eligible to join the website of a particular company, but just in the way we all check out websites and can't do that, whether the fact that he was a tester could prevent the person from making a claim.
Adam G. Unikowsky: So I don't think the person has standing, but, even if you disagree, our case is different from that. So the first part of my answer is I don't think so. I think that, as in the case with the credit unions, merely trying to seek information about a service you don't want, I don't think that's an Article III injury under TransUnion's discussion of informational harm. But the second part of my answer is that even if you think I'm completely wrong on that, I think that's distinguishable because, in that case, the plaintiff was prevented from using the website. In this case, we think what really happened here was that there was a bar to accessing the hotel, which doesn't become relevant until the plaintiff tries to do that.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Official 1 Gorsuch? Justice Kavanaugh? Justice Barrett?
Justice Barrett: I have a question about some of Justice Sotomayor and Justice Kagan's hypotheticals. I mean, it does seem like they're all meaningfully different in the injury sense, and I'm wondering whether -- I mean, I'm -- I'm thinking about a plaintiff who tries to make a reservation at Acheson Hotel and then just gets frustrated because she's disabled and she can't get the information, so she says, I'm not giving this place my business, but I want to sue. Like, I would never go say -- stay there because -- and I'm not going to go back to the website because I'm offended. You know, this isn't -- this isn't a place that I want to frequent. Do you think that person suffered an Article III injury?
Adam G. Unikowsky: Yes, but they couldn't sue because you can only get an injunction.
Justice Barrett: Injunctive relief.
Adam G. Unikowsky: Yeah.
Justice Barrett: Okay. So that -- Official 1 that's my question. You're not taking the position that my plaintiff hasn't suffered an Article III injury, but you're saying here that the forward-looking piece of it is because you have to show that you have standing for the relief that you seek, and the ADA only permits an injunction?
Adam G. Unikowsky: Correct. The injury has to be in the future. Correct.
Justice Barrett: Okay. Thanks.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So I guess I'm trying to figure out the difference between your argument in saying that you want to preserve tester standing, that testers you understand are okay and Ms. Laufer is not. And I know that you say that she is a self-appointed tester. Is that because -- you're trying to distinguish her from the testers that you think have standing and don't? And what's the difference?
Adam G. Unikowsky: No, I -- I -- I --
Justice Jackson: Okay. Official
Adam G. Unikowsky: -- I -- I'm not -- that's not -- I mean, she is self-appointed in the sense --
Justice Jackson: Yes.
Adam G. Unikowsky: -- that she doesn't work for the government. That's all I meant by that.
Justice Jackson: I see. I see.
Adam G. Unikowsky: But I -- other testers who themselves are self-appointed would have standing. It depends on the particular facts.
Justice Jackson: I guess I'm trying to -- I -- I'm trying to ferret out whether there -- whether what's really hard here is drawing the distinction between a tester who actually experiences discrimination even if they don't really want the service subjectively, right? So this is -- Justice Sotomayor talked about the people going to lunch counters. They aren't hungry. They're not actually there for the sandwich. They're going in because they are putting themselves into a discriminatory situation in order to be able to challenge the policy. Official 1 Ms. Laufer says, I'm challenging the policy. But I guess the question is, is she really experiencing discrimination? Is that what we're supposed to be kind of thinking about?
Adam G. Unikowsky: Yeah. So, first of all, I just want to put on the table we definitely think the person at the lunch counter has standing, okay?
Justice Jackson: Okay. And that's not -- and that's because it doesn't matter that his motivation is, I didn't want the sandwich, right?
Adam G. Unikowsky: That's right. That's the facts of the Havens Realty case essentially, which we haven't asked the Court to -- to overturn.
Justice Jackson: So it doesn't matter that she's doing this to sue. That's -- I mean, I know you keep talking about her -- her motivation, she wants to do this to sue. In the same way as it doesn't matter that the person's subjective motivation is to set up circumstances by which they can challenge the discriminatory lunch counter, it Official 1 doesn't matter that her subjective motivation is to sue. There must be something about whether she's actually experiencing discrimination --
Adam G. Unikowsky: I --
Justice Jackson: -- that is the difference in your argument, right?
Adam G. Unikowsky: -- I -- I -- I think that's right. I don't think that subjective intent matters when there has been a concrete Article III harm, such as, in the Cruz case, being banned from speaking --
Justice Jackson: Right.
Adam G. Unikowsky: -- such as, in the tester case, not entering a business. And I do think that being the victim of intentional racial discrimination, as in the facts of the Havens Realty case, where the hypotheticals Your Honor has described may inflict in certain circumstances an Article III stigmatic injury. We just don't think that these facts are comparable to those.
Justice Jackson: That she has actually been the victim of an injury and is that -- that's because you say she never -- she Official 1 disclaimed her interest in going to Maine?
Adam G. Unikowsky: So I think there's -- there's several differences between this case and the lunch counter hypothetical.
Justice Jackson: Hmm.
Adam G. Unikowsky: So, first of all, I think this is more of a generalized grievance like in the lunch counter or Ms. Coleman in Havens Realty. Like, the person was personally the victim of racial discrimination. I think that when you just go to a website to check ADA compliance, that's more of a generalized grievance. There's also no intent to discriminate in this case. I do realize that the ADA considers the disparate effect of facially neutral policies to be discriminatory just as disparate treatment is discriminatory. But, in this case, there's no disparate effect either because she's not using the information. So there's no -- the disrespect of intentional discrimination --
Justice Jackson: But that's all --
Adam G. Unikowsky: -- is absent too.
Justice Jackson: -- on the merits. Official 1 I'm talking about --
Adam G. Unikowsky: No, I don't --
Justice Jackson: -- injury, right? I mean, those that -- that's whether or not she could actually win the case. You're saying she can't even bring it.
Adam G. Unikowsky: Yes.
Justice Jackson: And I'm trying to understand why you think she's not injured. And I think you -- I think I get it. I just wanted to be clear --
Adam G. Unikowsky: Well --
Justice Jackson: -- on the difference between her and a tester.
Adam G. Unikowsky: -- I mean, on -- on the -- on the question Your Honor described about being subject to discrimination, I do think this case is properly understood as discrimination against people who are limited from accessing the building, like the purpose of accessibility information on the website is to facilitate accessibility of the building. And so not --
Justice Jackson: No, isn't it -- I'm sorry, isn't it -- isn't it to facilitate their Official 1 assessment of whether or not this building offers services that they can use? MR UNIKOWSKY: Yeah, but --
Justice Jackson: So what she's trying -- the reason why there's discrimination is because an able-bodied person can get on the website and it shows that there are 15 rooms available at this hotel, and so they know that there are 15 rooms available and they could go there, whereas a disabled person, unless the hotel identifies that it actually has accessible rooms, can't look on the website and assess the availability of those rooms. I thought that was the discriminatory issue.
Adam G. Unikowsky: Yeah, but the problem is that looking at the website is not an end in itself. I think it's a means to the end of accessing the hotel. Like the reason you want to know whether there's a wheelchair ramp is to know if you show up at the hotel whether you can enter it.
Justice Jackson: Maybe. I mean, there could be a lot of reasons, right? I mean, the point is you're being discriminated against because you can't -- you don't have the Official 1 same access to information about the status of the hotel and whether rooms are available.
Adam G. Unikowsky: I guess I just don't view -- I mean, there's no argument that Respondent couldn't use the website, unlike in the hypothetical with the visually impaired plaintiff that Justice Kagan asked about. I think that her ability to use the website was not constrained. She just didn't get information that she needed to know whether she could access the building, which I just don't think is an injury, unless you're going to use that information somehow.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Ms. Ross. ORAL ARGUMENT OF ERICA L. ROSS FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING NEITHER PARTY
Erica L. Ross: Mr. Chief Justice, and may it please the Court: As the questions this morning make clear, this is an unusual case. At the time we filed our brief, we flagged serious concerns Official 1 about whether the case was moot. Now, as I take my friend to agree, it's clearly moot. We have not only a plaintiff who no longer seeks to litigate her claims, a defendant who no longer owns the hotel, but also a website that is no longer lacking the relevant information. Rather than decide the more difficult standing question in this highly artificial posture, the Court should exercise its discretion to vacate the First Circuit's decision and dismiss the case as moot under Munsingwear. At a minimum, if the Court exercises its discretion to address standing, it should hold that Respondent lacks standing for a narrow reason. Her claim to standing depends on her view that Title III and the Reservation Rule give her a freestanding right to information, akin to the right to information about housing in Havens. But the ADA and the Reservation Rule are narrower. They give individuals with disabilities a right to information in connection with the equal enjoyment of a Official 1 hotel's reservation service. Because Ms. Laufer has not alleged that she would use that service in the future, she lacks standing. I welcome the Court's questions.
Justice Thomas: You're not saying that we don't have jurisdiction over the case -- as I understand you. You're simply saying that we should exercise our discretion not to decide the standing issue?
Erica L. Ross: That's correct, Justice Thomas. When the government was on the receiving end of this type of a dismissal of a complaint in district court after the grant -- Court had granted certiorari in Carnahan, we specifically laid out our -- our thoughts on this issue, specifically, that the Court does have discretion to decide either the standing or the mootness question first, but, there, we said, you know, it makes sense, given the artificial nature of the case once the plaintiff has dismissed her claims, to decide mootness while leaving on the table, you know, the possibility that in a future case you might choose to decide standing. But I think for the reasons I was just Official 1 explaining that this is not that future case because it's not just sort of artificial in the way that any case in which a plaintiff who has dismissed her claims will be artificial. It's -- it's sort of extra-artificial for the reasons that Justice Kagan was -- was pointing out.
Chief Justice Roberts: You -- you're confident that the mootness question is easy. Is the government at all concerned about the manipulation of this Court's jurisdiction when you have -- because Ms. -- Ms. Laufer, I gather, is not the only person doing this, bringing hundreds of cases around the country, and then, when the Court gets interested in her case, it's all gone. It's moot. It doesn't stop any of the other dozens of people, however many there are, who are doing the same thing. So we may have to come up with another case as soon as this -- this one, if it's -- if it's not addressed, and then they will -- that one will be mooted. And, you know, we can't sort of keep granting cert and having it constantly being mooted with never a determination of whether Official 1 there's standing in those variety of cases. I mean, you may think that that's not necessarily easier or harder than the standing question, but it's -- It's certainly not one that we can just, you know, toss off with the back of our hand, is it?
Erica L. Ross: So I certainly understand the institutional concern, and that is why, among other reasons, we think the -- the Court can and should leave on the table this option of actually deciding the standing question rather than the mootness question in a future case should this actually become a pattern. I just think, again, that this is a particularly poor case to do it in. And I think, beyond that, you know, on -- on the more specific question of whether this case will -- or a case like this will come to the Court again, I think this has already been covered, but the circuit split actually looks quite different now than it did when the Court granted certiorari. It's not just that the parties agree that under Munsingwear the First Circuit decision would have to be vacated in this case, but it's also that the Eleventh Official 1 Circuit decision has since been vacated, and so now there's only one circuit decision on Petitioner's side -- excuse me, Respondent's side of the split. And so I think parties may -- may adjust their behavior in -- in light of this, but, again, we, for the institutional reasons you note, think the Court can reserve this option in future cases.
Chief Justice Roberts: How -- reserve the option. How many times does this -- do we have to do this? The next case that comes up in the same posture as this, should we let that one go too because maybe it'll be the last one, or should we address it here?
Erica L. Ross: So I certainly understand the concern, Mr. Chief Justice. Again, you know, I think it's not just that this is the first case. It's really that this is sort of moot to the third. I mean, it has a plaintiff who has dismissed her claims, a defendant who no longer owns the hotel in question, and a website that everyone agrees has been updated. And if you look at the First Circuit's decision, the reason why the First Circuit Official 1 thought this case was not moot was this third-party issue with respect to hotels.com and other third-party websites. But, under the regulation, it's the hotel owner whose job it is to inform those third parties about accessibility information, and we don't even have that party before the Court to tell us --
Justice Kavanaugh: I think --
Erica L. Ross: -- whether that has happened.
Justice Kavanaugh: -- I think the -- I think the Chief's question was, next time, we shouldn't do this, do you agree?
Erica L. Ross: You know, I think certainly I would have to know more about what it looks like next time, but I think the whole point, obviously, of the Court reserving this ability would be -- or recognizing this ability, really, because they're both jurisdictional questions, would be to allow you to say yes, we're going to go to standing in the next case.
Justice Barrett: Do you think it's relevant that the reason the split looks different too is also perhaps strategic behavior on the part of the Respondent? Official 1 Because didn't she go to those other circuits and then dismiss her claims and ask for the decisions to be vacated?
Erica L. Ross: So, you know, I -- I don't want to sort of import -- or impart a motive to any of the parties on -- on either side of this case. I think the Eleventh Circuit decision is actually a little bit more complicated than that because it was actually that the defendant not only -- or had not just sold the hotel at the time of the decision, it actually had dissolved and had not told the court that at the time, and so it wasn't sort of just on Ms. Laufer's side of the v.
Justice Barrett: It was at her request, is all I'm saying.
Erica L. Ross: Yes.
Justice Barrett: Yeah.
Erica L. Ross: I think it was at her request. You know, again, I -- I think the question really is, given how much more difficult at least we think the standing question is than the mootness question, whether it makes sense in this case, where we have these additional complications, to go ahead and Official 1 decide that.
Justice Kagan: I'm wondering, just to turn to the standing question --
Erica L. Ross: Certainly.
Justice Kagan: -- how you would distinguish your position from Mr. Unikowsky's views and why it matters.
Erica L. Ross: Sure. So I -- I think there are sort of many differences, but I guess I'll hit three main ones. The first one is that Mr. Unikowsky, in his brief and then again this morning, expressed the view that the Reservation Rule is really about access to the facility under the ADA. We -- we understand it a little bit differently. There's, of course, some element of access to the facility in there, but the statute says --
Justice Kagan: When you say "the facility," meaning the hotel?
Erica L. Ross: The hotel, the physical place of public accommodation. The -- the statute also guarantees people with disabilities the equal enjoyment of the Official 1 services of a place of public accommodation, and so I think how this cashes out is that in -- on Mr. Unikowsky's view, I think, if you have a hotel like this one that has no accessible -- no accessible rooms, then a plaintiff can never have standing based on the fact that they didn't tell you that on their website because you couldn't go there anyway. We think that actually is an injury. If -- if you're trying to figure it out and you can't because they don't have the information, you're not having the equal enjoyment of the service in the way that the ADA provides.
Justice Alito: Is your argument really a standing argument, an Article III argument, or is it a merits argument? You're saying that when Title III and the Reservation Rule are properly interpreted, then Ms. Laufer doesn't have a claim. That's a merits argument.
Erica L. Ross: So, Justice Alito, I appreciate that the -- the analyses sort of overlap in this area, and I think the reason why that is so is that this Court has specifically recognized that congressional -- Official 1 what Congress does in terms of creating rights and causes of action is relevant. I think the -- the phrase this Court used in TransUnion was, you know, due respect, obviously Havens, other cases. And so I do think there's some overlap. But we do think the way this comes to the Court is that discrimination is an Article III injury when somebody personally experiences it with respect to her rights. And --
Justice Alito: Well, let -- let me ask -- let me give you a hypothetical of the sort that our former colleague, Justice Breyer, might have asked. So -- (Laughter.)
Justice Alito: -- let -- let's say I am -- I am driving to a dog show and I am transporting my champion Saint Bernard and I want to check in to a hotel with my dog, and they ask me: Is it a service dog? I say no, it's not a service dog. Is it an emotional support dog? No, it's not an emotional support dog. Well, they say, you can't check into the hotel because either we don't allow dogs at all or we don't allow dogs that weigh more than a Official 1 hundred pounds. And I say, well, you're violating the ADA. And I sue under the ADA. Now do I lack standing? Have I not suffered an injury in fact because I can't get this hotel room and I can't have my dog, my champion Saint Bernard, with me in my room? Or do I just lose because the dog isn't covered -- having the dog with -- without it being a service dog or an emotional support dog is not covered by the ADA?
Erica L. Ross: So I think you might just have a merits problem there if I'm following it correctly, but I think it's a little bit different because the -- the harm that you're alleging in that case is the -- just the -- the harm from -- you know, maybe the person was mean to you, you just really wanted to bring your dog, whatever it is. I think the way that this case is pitched is that the right that -- that Ms. Laufer claims gives her standing is the violation of the statutory right to information or the -- the violation of the regulation. And so we sort of have to know what the statute or the regulation provide to decide whether she Official 1 is -- if I could just finish the -- the sentence --
Chief Justice Roberts: Sure.
Erica L. Ross: -- in an analogy to sort of an Allen versus Wright case, you know, we have to -- we have to know whether she is the person who's personally experiencing the discrimination or she's the person who's sort of across the country hearing about it, and to know that, we have to know what the right to the non-discrimination right is.
Chief Justice Roberts: Thank you. Justice Thomas, a question about your dog? Justice Sotomayor?
Justice Sotomayor: I'm -- I'm a little confused. In your brief, you say, "Ms. Laufer has not alleged that she used, attempted to use, or planned to use the Inn's reservation service." That's your brief at page 19 to 20. I don't know, and you differentiated yourself from your colleague by saying he thinks that if she wasn't going to use the place at all, she doesn't have standing, and Official 1 he'll answer that, okay? But does that mean that you're saying no tester could ever have standing?
Erica L. Ross: Certainly not, Justice Sotomayor. We just think that the -- you have to look at the service that's being alleged rather than the -- the -- so if I could give you a physical analogy --
Justice Sotomayor: Yes.
Erica L. Ross: -- I do think it makes it a little bit easier. Here, you know, if you had two people who drive up to a store and they find that there's only stairs, no ramp, and one of them drives away and the other says, you know, I'd really like to go into this store, but I can't, I think that first person has standing -- excuse me, the -- the person who -- who says, I'd really like to go into this store, but I can't, has standing. The person who drives away does not have standing. Neither of them actually has to say, I would buy something.
Justice Sotomayor: So is -- was her problem that she didn't say, I didn't go into the website? She says, I'm surfing to see how Official 1 many websites I can find information in. Is that what her problem was, that she didn't try to make a reservation --
Erica L. Ross: So I --
Justice Sotomayor: -- or that she didn't look at the reservation? I -- I don't understand. When do we get to that point?
Erica L. Ross: Sure. So I think when we get to the point where she has an injury is when she says, just as the physical tester says, I would go inside, when she says, I would make a reservation or I would use this information to consider making a reservation, because, you know, we certainly take the points that were expressed earlier about people who are -- are considering whether they're going to go to the place and are trying to figure it out. But I think the difference here is that Ms. Laufer was doing this, she -- she had no use for the reservation service itself. She had no interest in actually even completing that transaction.
Justice Sotomayor: I -- I find this so hard because I think what we're trying to do Official 1 is to say that the website somehow is different than the physical entry or attempted entry, because we agree in Blue Haven that the couple wasn't intending to rent, they just went and asked for information and -- not Blue Haven, I'm sorry, Haven Realty, and they got turned away, and you're saying that we shouldn't write this to overturn Haven Realty.
Erica L. Ross: Certainly not, Justice Sotomayor.
Justice Sotomayor: All right. So what's different than my going to -- the black couple went to the door of the place, asked for information. A disabled person goes to a website, which is, in my mind, the door to the hotel or at least a telephone to the hotel, and is being told, no, you're not welcomed here because we're not -- we don't have accessible rooms here?
Erica L. Ross: So --
Justice Sotomayor: Basically, it -- it's almost a negative, which is, if you don't give me the information, you're telling me that it's not accessible to me.
Erica L. Ross: So I -- I agree with a lot Official 1 of what you've said, Justice Sotomayor. I think the distinction comes between the way that the statute at issue in Havens was written, which was it is unlawful to falsely tell any person that there is no housing available for a discriminatory reason, essentially, whereas the -- the reservation -- and so it doesn't matter whether you're going to -- to rent the apartment, it does not matter at all. I think, here, the Reservation Rule is much narrower than that. It does provide a right to information but in connection with actually making a reservation. So, if you go to pages 9A to 10A of our statutory appendix, where the regulation is laid out in full, the title of it is "Reservations made by places of lodging." The requirements apply with respect to reservations made by any means, and all the way through to, you know, the exceptions and the effective date are based on reservations. And so I think it's not this sort of anybody in the world gets information in quite the same way that it was in Havens. But, again, completely agree that Official 1 Havens I should not be overruled. I heard my friend to agree with that. And also that, you know, we're not suggesting that -- that the -- the person who actually does want to make a reservation doesn't have standing.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: I -- I wanted to give you an opportunity if you hadn't completed your list of things that are different between you and Mr. Unikowsky to do that. But I also want to ask whether the first difference that you mentioned, which is you're focusing on the reservation service and he's focusing on the hotel or other facility, might introduce a kind of gamesmanship with respect to tester plaintiffs, you know, that you go into the website and you make the reservation and two days later you cancel the reservation, and you said: Hey, I made a reservation, what's your problem? Of course, I have standing.
Erica L. Ross: Sure. So I'll take those in order. I think, to finish the list -- and I appreciate the opportunity -- the second one is that I heard Mr. Unikowsky to suggest both in Official 1 the papers and today that there might be sort of a particularization problem simply because this is on the website. We disagree with that. I mean, I think, if an individual experiences the discrimination on a website because they are actually trying to make a reservation, as this Court has said in other contexts, the fact that a -- an injury is widely shared does not mean that it's not particularized. And then the third point was, again, about this question about, you know, what counts as discrimination. I think -- I -- I -- more so in the brief, and so I -- I don't want to attribute too much of a difference here, but I think in -- we think it's very clear that Congress defined discrimination to include the failure to make reasonable modifications. And so the fact that, you know, someone can say: Well, my website has, you know, the same information for all comers and she wasn't sort of personally picked out to have different information, I think is no answer to the idea that this is real discrimination under the ADA. Official 1 And I think this -- that's a concept that this Court has recognized in other areas. So, for example, in the religion context, obviously, in cases like Abercrombie, the Court has made clear that, you know, it's not enough to just have a neutral "no head covering" policy. You need to make an accommodation to treat people equally. To the gamesmanship point, I think that our test for standing will be narrower than the one that the court of appeals adopted. I think there will be fewer testers. I don't think there will be no testers, and I think that's just a -- a consequence of the fact that this statute does provide a -- a right to anyone who's trying to use the service, and we don't take a step back and look to their motive. But I do think, to some of the questions that came earlier, the -- the lower courts will have ways to ferret some of that gamesmanship out. For example, you know, if you say, I would have made a reservation on this website, but it turns out that when you see compliant websites you never make a Official 1 reservation, then a court might say that's not a credible allegation. Similarly, I think hotels will have an ability to change how difficult it is to make a reservation and then cancel it. And so it might not be credible to say, I would have made a reservation if, in fact, I would have had to put down my deposit upfront and I couldn't get it back if I canceled it later.
Chief Justice Roberts: Justice Gorsuch? Justice Kavanaugh?
Justice Kavanaugh: Just in the wake of your discussion with Justice Alito, I just want to make sure I'm clear on your position under Article III and our precedents. You agree that one could have a cause of action but no standing, correct?
Erica L. Ross: I think that flows clearly from this Court's decision in TransUnion and -- and Spokeo, among others.
Justice Kavanaugh: Okay. And you agree that one could have standing but no cause of action?
Erica L. Ross: That's also correct. Official
Justice Kavanaugh: Okay.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: So I just want to make sure that I understand your colloquy with Justice Kagan. What if I am not disabled and I don't need any accommodation, but I prefer, because I care a lot about the issue, to only stay at hotels that do post the information on websites and also make accommodations? So I go to the website and I try to make a reservation, and I could make a reservation at a room, you know, that's not handicapped-accessible. But would I have standing then because the website -- and -- and, in fact, I do make the reservation, but would I have standing then? I used the service. I guess I'm just trying to figure out, so you're saying that it's plaintiffs who intend to use the service who would have standing. And I'm trying to -- to narrow down, does that just mean anyone who would use the service, or does that just mean the subset of Official 1 people who would use the service and who it's actually relevant for them to know whether the room is accessible?
Erica L. Ross: So I -- I appreciate the -- the chance to clarify, and I apologize if I was unclear on this. I think it is certainly true that you need to be suffering discrimination within the meaning of the ADA, and so the person who doesn't need the accessibility information, I think, would not have standing.
Justice Barrett: So it's tied in. It's not just -- and I -- I honestly think some of the confusion in these cases is just by using "informational injury" with no additional explanation. It's -- it's not just kind of a bald informational injury. It's informational injury because -- and you're saying it's tied here to discrimination -- because she lacked information, she was discriminated against because she couldn't access the service, the reservation service online?
Erica L. Ross: Exactly.
Justice Barrett: Okay. Official
Erica L. Ross: I think both Havens and this case are really better understood as discrimination cases that happened to involve information rather than --
Justice Barrett: Yeah.
Erica L. Ross: -- informational cases for precisely the reasons you note, Justice Barrett.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So my thought has been that we need to distinguish between the person who's getting online and they're a documentarian, a passionate observer, a person who's going there just to see, are you following the rules, Hotel X, Hotel B, et cetera, and a person who, I think you're saying, is trying to use the service. Is that a -- the -- the relevant line in terms of establishing injury?
Erica L. Ross: Yes, Justice Jackson.
Justice Jackson: All right. So, if the -- and so then the question becomes, what does it mean to use the service? And do I have Official 1 to actually make -- express an intention to make a reservation, or could I be looking at this because there's a possibility that I might want to, you know, go to this area in the way some of the hypotheticals have talked about, and I want to see could I go there? Is that enough?
Erica L. Ross: So I think that probably is enough. I mean, I think, you know, this gets complicated because we're talking about both what's enough under the Reservation Rule but also what's enough for forward-looking relief. And so I think you sort of have to tease those things out. But it seems like, if you are, you know, comparison-shopping because you want to go either -- you're thinking about three different hotels or three different cities and you're trying to figure out, you know, is this a place that I could make a reservation, then I do think that you would have standing under our conception of the -- the rule.
Justice Jackson: Right. And that seems like it's a little bit different than what -- what Acheson Hotels is saying. They're saying you have to know that you're going to go Official 1 to that hotel or you have to have pretty imminent plans or something like that, right?
Erica L. Ross: I think that's right. And, you know, I -- again, as I said earlier, I think this cash -- one of the ways this cashes out is the -- when the hotel actually has no accessibility information, the person --
Justice Jackson: Right.
Erica L. Ross: -- is still being discriminated against because they can't use the service in the same way that somebody else can.
Justice Jackson: And your bottom line in this case is you put Ms. Laufer in the other bucket because she disclaims any interest in actually possibly going to this hotel?
Erica L. Ross: So --
Justice Jackson: Or in Maine or whatever?
Erica L. Ross: So -- so I think it's the disclaiming or the -- the failure to allege that she would make a reservation, because we are focused on the service, not sort of the downstream question of whether she ultimately would keep the reservation. Official 1 And I think the -- part of the reason for that is that, you know, when I'm travel planning, when other people who don't have disabilities are travel planning, I have an ability to look at different websites, even if I'm ultimately not going to go to that place. And so I think part of the antidiscrimination -- or -- or part of the discrimination here is -- is being treated differently with respect to that ability to -- to gather the information necessary to make the decision.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Ms. Corkran. ORAL ARGUMENT OF KELSI B. CORKRAN ON BEHALF OF THE RESPONDENT
Kelsi B. Corkran: Mr. Chief Justice, and may it please the Court: There is no serious dispute that at the time Ms. Laufer filed suit, Acheson provided no accessibility information on its reservation website, thereby excluding disabled people from using its online reservation Official 1 services and engaging in unlawful discrimination under the ADA. As Congress recognized, when places of public accommodation fail to take reasonable steps to make their services available to people with disabilities, they signal that disabled people are unwelcome participants in the marketplace and contribute to their day-to-day experience of being isolated, invisible, and ignored. If the Court reaches the standing question presented by Acheson, it should reject Acheson's argument that a disabled person does not experience that dignitary harm when she encounters the accessibility barrier on Acheson's website, unless she also has travel plans that are thwarted by the discriminatory treatment. For over six decades and most notably in Havens Realty, this Court has recognized that discrimination inflicts Article III injury regardless of whether the plaintiff experiences any harm beyond the unequal treatment. What it means to personally experience discrimination on the internet is a novel Official 1 question, but whether the answer is the one we've offered or the one the government proposes, Havens requires a test that focuses on what the plaintiff experiences on the website, not her underlying motive in that experience or whether any downstream injuries result. Finally, I want to return to the issue the Court started with today. Mr. Unikowsky and I are both arguing before the Court on behalf of clients that have no legal interest in the outcome of this case: Ms. Laufer because she has dismissed her complaint with prejudice and will not be bringing any more ADA suits and Acheson because it no longer owns the hotel whose reservations service the suit challenged. These circumstances render the case, at minimum, a poor vehicle for reaching the standing question. I welcome the Court's questions.
Justice Thomas: You started with the standing question, and you spoke of dignitary injury, and in your briefs, I think you focus on stigmatic injury. The government seems to Official 1 focus on informational injury. And there seems to be a -- a -- a difference in your characterization of the injury here. Would you spend a few minutes and explain which injury are we talking about?
Kelsi B. Corkran: Here, we're talking about a discriminatory denial of information, so it's not a pure informational injury. The discrimination aspect of it is important because, as in Havens, it's not just that you're not getting the information; you're not getting the information for a reason that conveys that you have inferior status in society. So it's inflicting a dignitary harm that you wouldn't have from a purely informational injury.
Justice Thomas: I guess I could think of cases in which a denial of injury doesn't go to one's dignity or to -- doesn't create this sort of a stigmatic --
Kelsi B. Corkran: Yeah.
Justice Thomas: Deprivation. And it -- but it seems as though the government doesn't make that second step to the injury that you're talking about. It simply -- Official 1 it's talk -- it focuses more on the information that you are deprived of in order to be able to use or to make a decision about using a hotel.
Kelsi B. Corkran: I -- I -- I think the government's brief does talk about this Court's jurisprudence on dignitary harm and discrimination and the fact that the Court has never required any downstream consequence for a -- a discriminatory injury. And that's certainly the approach the Eleventh Circuit took on this issue.
Justice Kavanaugh: I agree with you that discriminatory treatment is itself an injury under our precedents and Article III, certainly in Havens Realty. The discriminatory treatment here, I think Mr. Unikowsky is saying, would have occurred at the hotel or in and that there was no discrimination in the information provided because everyone was provided the same information. I just want to give you an opportunity to respond to that.
Kelsi B. Corkran: Yeah, thank you, Your Honor. I think that's wrong for the reasons Ms. Ross said. Under 12182, places of public Official 1 accommodation cannot discriminate in the provision of services. So it's not just in access to their building. The service itself has to be provided in a way that allows people with disabilities to use it in the same way as non-disabled people. I also think this argument, when it's framed that way, really is a merits question and, under Steel Co., isn't part of the standing inquiry. I think, under Steel Co. and Lexmark and if you combine those with TransUnion and Spokeo, the Court assumes as valid Ms. Laufer's cause of action here, so you assume that the allegations in her complaint state a claim of unlawful discrimination under 12182, and then you also assume that Congress conferred a cause of action to her. And then the question is, did Congress act within its constitutional authority when it provided a cause of action here?
Justice Kavanaugh: Well, I think the -- Mr. Unikowsky's saying, particularly in the briefs, this is an Allen versus Wright kind of case, not a Havens Realty kind of case. And the distinction between those two cases -- Official 1 Allen versus Wright, as you know, someone in Hawaii can't complain about discrimination that's occurring in Maine. Havens Realty, you actually personally experienced the discrimination yourself when you're, as Judge Barrett, then-Judge Barrett said in Casillas, when you're lied to because of your race. So why isn't this case more like what Allen versus Wright described there?
Kelsi B. Corkran: The -- the plaintiffs in Allen v. Wright were challenging the IRS's failure to enforce a provision of the Internal Revenue Code that required it -- it to withhold tax-exempt status from discriminatory schools. The plaintiffs in that case had no private right to the IRS complying with the law. They were seeking to enforce a public right. And in those circumstances, they had to show that they were personally injured by the IRS's non-compliance.
Justice Kagan: But I wonder whether there isn't a broader principle at stake in a case called -- like Havens. I mean, here, your client has disclaimed, has said, I'm not intending to go on vacation at all, I'm not Official 1 intending to go to any hotel, I'm not intending to use the reservations service at all to look for accessible hotels, to reserve accessible hotels, to go to accessible hotels. I'm not doing any of that. So tell me how she is discriminated against by -- by the inaccuracies on this website.
Kelsi B. Corkran: The reason the case comes to the Court in -- in that posture is because injunctive relief is so elusive when you're talking about concrete travel plans. As was noted earlier, Ms. Laufer did amend her complaint in this case to say that she was going on this long road trip, but when the case was on appeal, she had already gone on the road trip. And so that's why, when we say she's disclaimed any intent of going on a trip, it's because, by the time the case was on appeal, she had already gone on the trip --
Justice Kagan: Well, but that's the --
Kelsi B. Corkran: -- and it could be a basis -- Official
Justice Kagan: -- case that's before us.
Kelsi B. Corkran: Right.
Justice Kagan: It's a case before us with a stipulation that she's not using the website for any vacation purposes --
Kelsi B. Corkran: But --
Justice Kagan: -- that -- that she's -- and I think that your brief reads like -- like this too, that the harm is -- well, I'm not sure. You tell me. The harm is just, I'm a person with a disability, and I see that there is inaccurate information about accessibility, and that itself harms me, even if I have no plans or less than plans, I have -- I -- I'm just not thinking about vacations at all.
Kelsi B. Corkran: Yeah. So I'll start by saying the reason all of these tester cases or really any of these Reservation Rule cases are going to be in that posture is because you -- you can't have concrete or even, you know, somewhat concrete travel plans and get an injunction in time. So -- so that's why these cases have been just generally litigated in Official 1 this way in this pure tester posture. But the injury here, again, it's not just a denial of information. The day-to-day experience of being a disabled person is to -- to have your world be very small because our -- our marketplace, our places of public -- public accommodation, just ignore you. They don't see you. They don't recognize you as a potential customer or as a member of the marketplace. And so, when -- when Ms. Laufer goes to the website and she sees that she's invisible, that they are not even acknowledging her --
Justice Kagan: Well, suppose she goes to --
Kelsi B. Corkran: -- as someone who might stay there --
Justice Kagan: -- the website and rather than look at accessibility information, she goes to the website and she looks at lots of pictures of places and -- and -- and says: Oh, this one doesn't have the required ramps. And, again, she's not going to those places, she has no intent of going to those places, but she sees that they don't have the required Official 1 ramps and she brings suit then. Does -- does she have standing to do that?
Kelsi B. Corkran: So --
Justice Kagan: Because I think that that's pretty similar to what is going on in this case.
Kelsi B. Corkran: So she does not have standing based on the pictures because she's not encountering the accessibility barrier herself. She's seeing --
Justice Kagan: Well, I don't know, it's, like, right there. I mean, if you're saying it's how you experience discrimination, and I can understand that, but I'm experiencing that sense of being excluded when I see that all these hotels are set up to exclude me and others like me.
Kelsi B. Corkran: There might be some sort of Article III argument there, but Congress certainly hasn't provided a cause of action there, unless you actually have plans to go to the hotel. And I want to go back to what Justice -- Official
Justice Gorsuch: Well, then -- then just to pause there for a moment, it -- it sounds to me like you're edging right up to the Solicitor General's test. Am I missing something?
Kelsi B. Corkran: I -- I see the intuitive appeal of the government's test. I think the government -- and -- and we are both asking this question of, how do you encounter discrimination on a website? And -- and this goes to the analogy Justice Sotomayor was making. Our position is, well, in the physical barrier context, you experience, you encounter that accessibility barrier when you visit the hotel regardless of whether you want to stay at the hotel or what your underlying motive is. So, when we translate that into the internet context, we say you encounter the accessibility barrier when you go to the website and click around. I think --
Justice Gorsuch: Well, I -- I -- so -- so maybe that's the difference. Just -- I just want to make sure I understand what the difference is is all I'm trying to do. The Official 1 government says, yes, informational -- lack of information can be a form of discrimination --
Kelsi B. Corkran: Yes.
Justice Gorsuch: -- when you have some plans. Now how concrete that is, good luck, all right --
Kelsi B. Corkran: Yeah.
Justice Gorsuch: -- but some interest in making a reservation. And I -- I -- the -- the extreme position -- the other end of the spectrum, and I think that -- I don't know, I don't know where you are on this -- is I'm just clicking around to see and I'm -- I'm looking for an absence of information. I'm going to seek out this discrimination without any plans, without any interest. It's just what I do. Is -- is that standing in your view?
Kelsi B. Corkran: Yeah. So I think that is the distinction between our position and the -- and the government's position. So the government says --
Justice Gorsuch: Yeah. So what's wrong with the government's position?
Kelsi B. Corkran: So I -- I think -- so -- Official 1 so just to articulate what I think the government would say about your hypothetical is --
Justice Gorsuch: Yeah.
Kelsi B. Corkran: -- the government says you have to use --
Justice Gorsuch: Not my hypothetical.
Kelsi B. Corkran: Yeah. The government says you have to use the website in some way. So they would, I think, say our position is akin to driving by the website, and they want you to engage with it and actually make a reservation or -- or engage with it in a way that shows you're considering making a reservation. We say in our brief, I'm not sure that distinction holds as a practical matter. Judge Newsom made this point as well.
Justice Gorsuch: No, I'm not sure that it's going to be much of a pleading barrier if you were to adopt --
Kelsi B. Corkran: Yeah.
Justice Gorsuch: -- the government's position versus your -- your client's, I think, but I'm just trying to understand what the real Official 1 difference is --
Kelsi B. Corkran: Yeah.
Justice Gorsuch: -- if there is any or whether you're comfortable with the government's position.
Kelsi B. Corkran: I'm comfortable with the government's position so long as it's understood as an inquiry into what you experience on the website and not your underlying motive for being on the website --
Justice Gorsuch: Right. We put that aside.
Kelsi B. Corkran: -- and not whether you experience any downstream injury as a result of being on the website. And I think that's the real problem with Acheson's position. They are attempting to upend, I think, how this Court has always defined discriminatory injury, which is the injury is in the dignitary harm. You don't have to show some sort of downstream consequence, like --
Justice Kavanaugh: So --
Justice Gorsuch: And I appreciate -- I appreciate that. Official
Kelsi B. Corkran: Yeah.
Justice Gorsuch: But -- but just to -- just so I've really got it, the government doesn't -- says the motive is irrelevant. We don't care --
Kelsi B. Corkran: Yes.
Justice Gorsuch: -- why you walk in. But -- but we have to have some further engagement rather than just I'm spending the afternoon clicking through these things for -- for -- because I'm -- that's what I do.
Kelsi B. Corkran: Yes, I think that's right. They think our clicking around is equivalent to driving by --
Justice Gorsuch: Yeah.
Kelsi B. Corkran: -- and that making the reservation is -- is visiting --
Justice Gorsuch: Something a little bit more.
Kelsi B. Corkran: Yeah, I think that's right.
Justice Gorsuch: Okay. And -- and --
Justice Kavanaugh: So --
Justice Gorsuch: -- you're comfortable with that? Official
Kelsi B. Corkran: I'm comfortable -- I think it's -- I think it's compatible with Havens.
Justice Gorsuch: Okay. Thank you.
Kelsi B. Corkran: Right?
Justice Gorsuch: Yeah.
Kelsi B. Corkran: Yeah.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Well, that --
Justice Kavanaugh: So --
Chief Justice Roberts: -- that's what I'm wondering, and this, I think, is Mr. Unikowsky's argument, and you've said it several times, that it's the discrimination you experience when you go to the website, when you -- there's the encounter on the website. And I think that distinguishes it from Havens, where the discrimination was right there. And what I understand Mr. Unikowsky and I think perhaps the government says, you can't add on, as if it made no difference, later discrimination on the website because she really doesn't need the information on the website, she's not going to use it. And so, to me, that's a key Official 1 distinction between this case and -- and Havens.
Kelsi B. Corkran: Well, in Havens, Ms. Coleman didn't need the information either.
Chief Justice Roberts: Well, but, I mean, the -- the actual discrimination was against her.
Kelsi B. Corkran: Yes.
Chief Justice Roberts: Right? And that -- that's all you needed. It was the information that was given there at her request. That's the end of the case. Here, there's more. It -- it -- it -- it is, as you say, discrimination on the website. We don't have that when she just goes in, calls the -- the hotel. She's not on the website. And it seems to me that that takes it out of the initial -- initial encounter.
Kelsi B. Corkran: Yeah. I think the question then becomes, how do you -- how do you translate that Havens in-person encounter to the digital realm? And I think, if you -- you know, if there had been a sign on the door at the realtor that said "If you're black, we have no apartments available," we wouldn't say that Official 1 Ms. Coleman didn't personally experience that discrimination because it was just a sign that anyone would see if they came to the realtor's --
Chief Justice Roberts: Yeah, but she's not on the website. She's talking to the person in the -- in the hotel, right?
Kelsi B. Corkran: Well, right. So -- so, under the -- the hypothetical I just gave with Ms. Coleman, she isn't actually talking to anyone. She's being told by a sign that there are no apartments available to her.
Chief Justice Roberts: Right. And I'm challenging the hypothetical.
Kelsi B. Corkran: Okay.
Chief Justice Roberts: Because I think the hypothetical would say not the sign, the sign is the website, and she's going there. But she's not going to go there because she doesn't want the information from the website. She just needs to know from the conversation that it's not there.
Kelsi B. Corkran: That -- sorry, you're talking about Ms. Coleman now just needs to know or Ms. Laufer? Official
Chief Justice Roberts: Ms. Laufer.
Kelsi B. Corkran: So -- so I -- I think that -- that what Ms. Laufer experienced on the website is similar to Ms. Coleman confronting a sign that says no apartments are available. In both scenarios, Ms. Coleman had no interest in -- in getting an apartment. Ms. Laufer had no interest in --
Justice Jackson: But, Ms. --
Kelsi B. Corkran: -- staying at the hotel.
Justice Jackson: -- Ms. Corkran, can I give you another hypothetical that I hope will clarify things a little bit? So suppose we have an African American lawyer. This is back in the '60s, segregation time, '50s, '60s, who is across the street from a restaurant, and they see, they know, that the restaurant is not serving black customers through the front window, and at this time, the law says you're supposed to be, and they're not. They're making these people go around the back. And he's obviously upset about this. He feels the dignitary harm of seeing this happen. But he somehow disclaims that he ever would have gone to the restaurant, ever wanted to go Official 1 to the restaurant, et cetera. Is it your view that he would have standing to sue because he's aware of, he sees, this discrimination occurring, but he's also said, I would never have subjected myself to that?
Kelsi B. Corkran: And -- and he's seeking injunctive relief, not damages?
Justice Jackson: Yes. Yes.
Kelsi B. Corkran: Yes. So -- so, under those circumstances, if you're not going to ever go up to the counter --
Justice Jackson: Yes.
Kelsi B. Corkran: -- and ask for food --
Justice Jackson: Yes.
Kelsi B. Corkran: -- then you don't have standing.
Justice Jackson: So why isn't Ms. Laufer that person?
Kelsi B. Corkran: Because Ms. Laufer has alleged that -- or did allege that she would go back to the website and confront the accessibility barrier. The important thing about the --
Justice Jackson: But she's not Official 1 confronting the barrier if she's not asking for food. I mean, she sees the barrier. I think this is where the breakdown is, I think, right? She's not like a tester who actually went to the counter. They didn't really want the food. They were only doing it to challenge. Motive is irrelevant. You -- we all agree that that person would have standing because they actually went there and they experienced the discrimination. I want to know why she isn't the lawyer looking out the window across the street seeing this happen. And how can you say that he's confronting the barrier?
Kelsi B. Corkran: Because she went to the website and she engaged with the website and she --
Justice Jackson: So he goes down, he goes out across the street, he's standing there. He -- he goes. He's not just looking from across the street. He's literally right there at the counter because he wants to document this happening because he has in his mind: I really want to stop this, I'm going to sue. Official
Kelsi B. Corkran: Right.
Justice Jackson: But he never goes to the counter to ask himself for the food.
Kelsi B. Corkran: Yeah. So I think -- I think Ms. Laufer is the -- is -- in her circumstance, when she goes to the website and she engages in the reservations service, she is encountering that accessibility barrier.
Justice Jackson: All right.
Kelsi B. Corkran: But I think the government's position -- if that doesn't -- if that doesn't resonate, the government's position, I think, works as well, again, and is compatible with Havens.
Justice Kavanaugh: I think some of the amicus briefs raise the concern that everyone throughout the United States can sue every inn and hotel throughout the United States and use the phrase -- I'm not saying I agree with this, but this is the phrase in the amicus brief -- "online version of offended observers." And so I want you to respond to that. Is that ultimately the effect of your position? Not saying that means your position's wrong, Official 1 but is that the effect of your position?
Kelsi B. Corkran: No, it isn't, and I think this goes back to our discussion about Allen v. Wright. Here, a disabled plaintiff is asserting a private right to equal treatment, and the -- the cause of action is for individuals who have experienced a violation of that private right. So, one, you can't -- you don't have a cause of action under Title III unless --
Justice Kavanaugh: Put aside cause of action.
Kelsi B. Corkran: Right.
Justice Kavanaugh: This is about standing.
Kelsi B. Corkran: You don't -- you have to be both disabled so that you're actually experiencing a discriminatory denial of information and you have to have encountered the discrimination.
Justice Kavanaugh: So --
Kelsi B. Corkran: You can't just hear about it.
Justice Kavanaugh: -- I think the -- some of the amicus briefs all -- also refer to Official 1 then could every disabled person throughout the United States sue every inn and hotel throughout the United States. Again, not saying that means your position's wrong, but following up, I guess, on Justice Gorsuch, I'm trying to figure out where that leads.
Kelsi B. Corkran: I -- I think any disabled person who goes to the website, whether they make a reservation under the government's rule, but they're engaging with it and confronting the accessibility barrier, would have experienced a violation of their private right under Title III, but that's not an -- that's not an extension of Article III standing. That's just an application of traditional Article III principles to the digital realm.
Justice Kavanaugh: I think --
Kelsi B. Corkran: It's just everyone's reach has been expanded for better or worse.
Justice Kavanaugh: Right. And I think the interesting difficult question in this case maybe on the standing side is, do you actually experience discrimination when you go to the website and you can get all the same Official 1 information anyone else can get, but you're experiencing discrimination because what would happen if you went to the hotel?
Kelsi B. Corkran: Well, so I don't think it's -- it's -- the discrimination is what would happen if you went to the hotel. The discrimination is -- you know, we say in our brief it's as if you went up to a reservation desk in a wheelchair and the hotel had a practice of just ignoring anyone in a wheelchair or telling them to call a number. There is a dignity harm --
Justice Kavanaugh: Mm-hmm.
Kelsi B. Corkran: -- in being treated as invisible and not as a potential participant in the marketplace.
Justice Kavanaugh: Mm-hmm. So someone who didn't go on the website but was aware of this --
Kelsi B. Corkran: Would not have experienced that discrimination.
Justice Kavanaugh: It's the website that's --
Kelsi B. Corkran: Yeah.
Justice Kavanaugh: -- in your view, Official 1 creating the discrimination?
Kelsi B. Corkran: Yeah.
Justice Kavanaugh: And then Justice Gorsuch referenced, quite correctly in my view, that pleading -- it might be easy to plead some of this to get around this, but -- but, at summary judgment, of course, the facts would have to hold up that you intended to travel somewhere, right?
Kelsi B. Corkran: Well, I don't think there should be an intent to -- to travel anywhere.
Justice Kavanaugh: Right. No, I know. But --
Kelsi B. Corkran: Right. If there's an intent-to-travel requirement, no one is going to ever have standing to bring these suits in any meaningful --
Justice Kavanaugh: Right.
Kelsi B. Corkran: -- way because the trips are going to happen before you get your relief.
Justice Kavanaugh: Mm-hmm. Okay.
Kelsi B. Corkran: I -- I thought maybe we'd return --
Justice Kavanaugh: Oh -- Official
Kelsi B. Corkran: Oh, sorry.
Justice Kavanaugh: -- one other one. In the reply brief -- and I just want to make sure I have your answer on this. So U.S. v. Richardson's kind of a landmark standing case. In the reply brief, they say that U.S. v. Richardson would come out the other way under your theory if a plaintiff visited the CIA's website and observed that the information was absent. Do you want to respond to that?
Kelsi B. Corkran: Yes. So I think that's wrong for two reasons. One, again, that's a public right case, and also it's a pure informational injury. It doesn't involve a discriminatory denial of information. I was just going to return to the -- the mootness point and Your Honor's concerns about manipulating the Court's docket. I don't think that this is one of those cases. Of course, it is well established that the Court can exercise its discretion on what to do here on a case-by-case basis. Here, we don't have a respondent who waited to hear what the Court was going to do Official 1 about granting review and then attempted to moot out the case. Ms. Laufer acquiesced to the Court's review, and then there was this unexpected development that was deeply upsetting to her. She hasn't brought any of these suits, I think, in close to two years and already wasn't planning on bringing any more. The allegations against Mr. Gillespie were pretty devastating to her and she didn't want to pursue these cases anymore, and that's why we dismissed the complaint as moot. We were completely transparent with opposing counsel and the Court about the disciplinary order and about Ms. Laufer's reasoning, and we acknowledged in our suggestion of mootness that we were not manipulating the Court's jurisdiction, that it's free to reach the standing question if it thinks this case is still a good vehicle for doing so. And this is a highly unusual case in that not only does Ms. Laufer not have an interest in it anymore, neither does Acheson because it doesn't own the hotel. Acheson has Official 1 relied on Rule 25(c), I think, in their petition for the proposition that they're still the right defendant. But all that Rule 25(c) does is provide that if an injunction issues that it binds the new owners. If anything, that makes it worse because the actual owners who are going to be bound by any injunction in this case aren't here, and we don't know what they think. But that injunction wouldn't apply to Acheson in any meaningful way. They don't own the reservations site or the hotel. And their only alleged interest in this case at this point is that Ms. Acheson now owns a different hotel. I think she takes the position that that hotel's reservations service is -- is in compliance, and -- and she might hypothetically get some lawsuit from someone else down the road. And I think this Court's cases, Camreta v. Greene and United States v. Juvenile, make clear that that sort of hypothetical future litigation isn't enough to avoid mootness. Official
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito? Justice Sotomayor?
Justice Sotomayor: I have one question. Some amici say that the internet, as you've been arguing, is an especially important place for disabled people because they rely on it more than -- than anything else because of the physical barriers to get to places.
Kelsi B. Corkran: Right.
Justice Sotomayor: So the internet is the way they travel to a lot of places to find information ahead of time. Are there any other common ADA claims that occur largely in the context of the internet?
Kelsi B. Corkran: Yeah.
Justice Sotomayor: Outside of the Reservation Rule and the screen reader cases?
Kelsi B. Corkran: Oh, so I was going to say the screen reader cases.
Justice Sotomayor: Yeah, those are the two, aren't they? Official
Kelsi B. Corkran: Yeah, and the other -- the other circuit split has to do whether -- with whether freestanding internet services that aren't attached to a place of public accommodation are themselves places of public accommodation subject to Title III, but that's not implicated here.
Justice Sotomayor: That's sort of different.
Kelsi B. Corkran: Yes.
Justice Sotomayor: Can you tell me would or how our ruling here might have an impact on the screen reader cases? What can we say or not say that would address that split?
Kelsi B. Corkran: So I --
Justice Sotomayor: I haven't thought of -- I thought of it, but I haven't delved into whether I have an answer for that, so I'm just --
Kelsi B. Corkran: I -- I do think that the credit union cases and, in particular, Carello in the Seventh Circuit are distinguishable because, there, you had a blind plaintiff who couldn't access the website, but there was an entirely independent reason that he couldn't Official 100 fully enjoy it, and that was because he wasn't eligible to be a member. So that's an objective reason. It didn't have to do with his subjective motive or any downstream consequences. He just -- he -- he wasn't able to enjoy it anyway and therefore didn't experience the discriminatory injury under Title III. So I don't think that what the Court does here necessarily impacts what's happening there. And then, I guess -- yeah, I -- I do think, if the Court adopts Acheson's position, that -- in order to allege a discriminatory injury under Title III, you have to allege some sort of downstream injury, would have an enormous consequence on the screen accessibility cases too.
Justice Sotomayor: Okay. Thank you.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch? Justice Kavanaugh? Justice Jackson? Thank you, counsel.
Kelsi B. Corkran: Thank you.
Chief Justice Roberts: Rebuttal, Mr. Official 101 Unikowsky. REBUTTAL ARGUMENT OF ADAM G. UNIKOWSKY ON BEHALF OF THE PETITIONER
Adam G. Unikowsky: Thank you, Mr. Chief Justice. I'd just like to say a few words about the mootness issue and then a few words on the standing issue on which the Court granted certiorari. On the mootness issue, I just think that in deciding whether to exercise its discretion to decide the question presented, the Court should think about what's going to happen in the lower courts if it -- it doesn't do that. So, first of all, in the Fourth Circuit, where Ms. Laufer's lawsuit -- or the decision finding standing is binding precedent, it's essentially going to be impossible or almost impossible for a hotel to ever challenge standing because, in the district court, the hotel would have to lose a motion to dismiss, litigate the case all the way to judgment, lose, appeal, lose based on binding circuit precedent, and then file a petition for Official 102 rehearing en banc or a cert petition, and, of course, if that happens, then the hotel will abandon the case and cite this case for the proposition that it's allowed to do that. So, essentially, plaintiffs within that circuit will be able to bring lawsuits forever. In other circuits, like the First and the Eleventh Circuit, okay, if the Court Munsingwear's this case, it's going to be persuasive rather than binding precedent, but, of course, persuasive authority may prove influential to the district courts. And even assuming that courts ignore it altogether, then you're going to have every single district court deciding this standing question in the first instance, which is going to lead to a lot of judicial resources being expended that would be saved if this case currently before the Court is decided. So I think that if the Court is concerned about expending judicial resources, they would ultimately be saved at the end of the day if the Court decides the question presented. On the merits, just one word. I think Official 103 that Justice Kagan's question about a plaintiff who observes an accessibility barrier on a website is the right way to think about this case. I think the lack of information about accessibility is an accessibility barrier in the same way as an actual architectural barrier is an accessibility barrier. In both cases, the -- the plaintiff is deterred from going to the hotel. The lack of information deters the plaintiff from going to the physical building because the plaintiff doesn't know if they'll be able to get in, just as observing the accessibility barrier deters the plaintiff from going to the hotel because the plaintiff knows in that case that they can't get into the building. And so we think that those two cases should be understood the same way for purposes of standing. If going into the hotel is a requirement for the actual barrier, it should also be a requirement for lacking information about the barrier. So we're not seeking a far-reaching ruling abolishing tester standing or anything like that. We certainly haven't asked the Official 104 Court to overrule Havens Realty. We're simply trying to ally -- align the law of standing in this case with the law of standing in other -- in other cases involving architectural barriers. If the Court has no further questions, we'd ask the Court to reverse.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:28 a.m., the case was submitted.)