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Las Vegas Teams Wins Dismissal of Action by ADA "Testers"

April 1, 2011
Sheri Thome (Partner-Las Vegas) and Aryn Fitzwater (Associate-Las Vegas) obtained dismissal of an action for alleged violations of the Americans with Disabilities Act (ADA) on behalf of four Las Vegas extended-stay properties. The case was heard in the U.S. District Court for the District of Nevada. The plaintiffs were a self-described advocacy group and two individual members. The individuals asserted that they acted as “testers,” seeking out public facilities for the purpose of discovering and engaging discrimination against the disabled in public accommodations.

The motion that the Wilson Elser team presented argued that the case should be dismissed for lack of federal subject-matter jurisdiction in two key respects. First, the complaint did not seek resolution of a “case or controversy,” as required by Article III of the Constitution, in that the plaintiffs failed to show a concrete, imminent threat of harm or injury. Specifically, the plaintiffs had no history of patronizing the properties and had no definitive plan to return as they lived relatively close to the properties. Because there was no actual or imminent injury, the court held that there was no standing. The complaint also alleged violations of the ADA as the sole basis for the damages sought, and since the properties were considered residential facilities, the court held that the ADA did not apply.

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