Acheson Hotels v. Laufer: Revenge of the Data Nerds

Fox & Robertson along with a dream team of drafting partners filed an amicus brief today in the case of Acheson Hotels v. Laufer, currently pending in the Supreme Court. The case addresses the issue of “tester standing,” that is, whether people protected by civil rights laws have standing to sue when they intentionally investigate compliance and encounter discrimination.

Because tester litigation has been responsible for calling out and challenging widespread disability discrimination, businesses hate it. The amicus briefs they filed were full of hair-on-fire numbers — of pending ADA lawsuits — that they characterize as a “staggering,” “unrelenting tide” that is “clog[ging] federal court dockets.” Chamber of Commerce Br. 7, 11; Retail Litig. Ctr. Br. 4, 11, 20, 22. One business brief asserted that tester standing “threat[ened] . . . the cohesiveness of our union.” Ctr. for Constitutional Responsibility Br. 1. Drama much?

Of course numbers are catnip to the data nerds here at Fox & Robertson World Headquarters, so we decided to take a look at the actual numbers of ADA cases filed in federal court — based on data gathered by the United States Courts on its website — and see how they looked in context. Here’s a chart comparing the “ADA-Other” category — roughly speaking, non-employment ADA cases, including the Title III cases that cause flaming hair on the business side — with six other common types of cases. Note the bright red ADA-Other line at the bottom.

Image:  a line graph titled “Case Filings by Type (Table C-2),” with the years 2008 to 2022 on the x axis and numbers 0 to 300,000 on the y axis. Seven colored lines cross the graph horizontally, each representing a type of case. The top line is a jagged line representing tort cases (varying between approximately 50,000 and 135,000). The line representing the category "ADA - Other" is in red.  It starts and ends at the bottom of the seven lines, intermingling with them in 2020.  ADA-Other cases vary from approximately 1,700 to approximately 12,000.  Other types of cases are as follows:  Contract cases, in green, vary from approximately 23,000 to 35,000. Labor law cases, in light blue, vary from approximately 13,000 to 19,000. Other civil rights laws, in dark green, vary from approximately 11,000 to 16,000.  Employment cases, in purple, vary from approximately 11,000 to 15,000.  Intellectual property, in blue, vary from approximately 8,000 to 14,000.

See? Not so bad after all! If business put half the effort into compliance that they put into whining, the world would be pretty damn accessible by now.

Be sure to check out our amicus brief with other fun facts and incisive arguments from the dream team: free agent disability rights rockstar Karla Gilbride, Michelle Uzeta at Disability Rights Education and Defense Fund, Tom Zito at Disability Rights Advocates, Justin Ormand at Allen & Overy and yours truly here at the World HQ.

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