Civil Rights Education and Enforcement Center, on behalf of itself; Ann Cupolo-Freeman; Ruthee Goldkorn; Julie Reiskin, on behalf of themselves and a proposed class of similarly situated persons defined below, Plaintiffs-Appellants,
Hospitality Properties Trust, Defendant-Appellee.
and Submitted May 15, 2017
from the United States District Court for the Northern
District of California Jon S. Tigar, District Judge,
Presiding D.C. No. 3:15-cv-00221-JST.
Timothy P. Fox (argued), Civil Rights Education and
Enforcement Center, Denver, Colorado; Bill Lann Lee, Civil
Rights Education and Enforcement Center, Berkeley,
California; Julia Campins, Campins Benham-Baker LLP,
Lafayette, California; Julie Wilensky, Disability Rights
California, Oakland, California; for Plaintiffs-Appellants.
Raizman (argued), Christopher F. Wong, and Kathleen J. Choi,
Ogletree Deakins Nash Smoak & Stewart P.C., Los Angeles,
California, for Defendant-Appellee.
Lindsay Nako, Jocelyn D. Larkin, and Lynnette Miner, Impact
Fund, Berkeley, California, for Amici Curiae Impact Fund,
Disability Rights Advocates, Disability Rights Education
& Defense Fund, Disability Rights Legal Center,
Disability Rights Oregon, Disability Rights Washington, Equal
Rights Advocates, Legal Aid Association of California, Legal
Aid Society - Employment Law Center, National Association of
the Deaf, National Disability Rights Network, and National
Federation of the Blind.
Before: Andrew J. Kleinfeld and Kim McLane Wardlaw, Circuit
Judges, and Brian M. Morris, [*] District Judge
with Disabilities Act / Standing / Class
panel affirmed the district court's order denying
plaintiffs' motion for class certification in an action
under Title III of the Americans with Disabilities Act
regarding transportation services at hotels.
panel held that the plaintiffs had standing to maintain this
ADA suit. The panel held that a plaintiff who lacks firsthand
knowledge that an establishment is not in ADA compliance may
rely on the "deterrent effect doctrine" to
establish constitutional standing under the ADA. Agreeing
with the Tenth and Eleventh Circuits, the panel held that a
plaintiff may also assert constitutional standing where her
only motivation for visiting a facility is to test it for ADA
panel held that the district court did not abuse its
discretion in finding that the plaintiffs failed to meet the
commonality requirement of Fed.R.Civ.P. 23(a), given the lack
of consistent policies or practices across the hotels owned
by the defendant but operated by others.
in part and dissenting in part, District Judge Morris
concurred in the majority's analysis of standing.
Dissenting from the majority's determination that the
district court did not abuse its discretion in denying class
certification, Judge Morris wrote that the plaintiffs
satisfied the commonality and typicality requirements of Rule
WARDLAW, Circuit Judge:
case presents two questions of constitutional standing to
assert claims under Title III of the Americans with
Disabilities Act ("ADA"), and the question of
whether those claims are maintainable as a class action. We
must decide (1) whether a plaintiff may rely on the
"deterrent effect doctrine" to establish
constitutional standing under the ADA where she lacks
firsthand knowledge that an establishment is not in ADA
compliance; and (2) whether a plaintiff has constitutional
standing where her only motivation for visiting a facility is
to test it for ADA compliance. We conclude that standing may
be asserted in both circumstances. However, although
plaintiffs have standing to maintain this ADA suit, the
district court did not abuse its discretion in denying class
certification. The court did not err in finding that the
plaintiffs failed to meet Rule 23's commonality
requirement, given the lack of consistent policies or
practices across the hotels owned by defendant Hospitality
Properties Trust ("HPT"), but operated by others.
a real estate investment trust ("REIT") that owns
hotels across the United States. REITs are vehicles for
investors to own a fraction of a group of real estate
holdings. Under federal statute, REITs are exempt from
taxation on corporate profits; shareholders are taxed only
when they receive dividends. 26 U.S.C. §§ 856-859. To avoid
taxation at the corporate level, REITs must, among other
things, remain passive investors and delegate the management
of particular facilities. Id. § 856(d)(7).
Plaintiffs Ann Cupolo-Freeman, Ruthee Goldkorn, and Julie
Reiskin ("Named Plaintiffs") are physically
disabled and use wheelchairs for mobility. Cupolo-Freeman and
Goldkorn reside in California, while Reiskin lives in
Colorado. Each phoned an HPT-owned hotel located in her state
of residence that provided free local shuttle services, and
each was informed that the hotel at issue did not provide
equivalent shuttle service for mobility-impaired people. Each
alleges that she would have stayed at the hotel she called
but for its failure to provide equivalent shuttle service. In
addition, each alleges that she still intends to stay at the
hotel, but that its failure to provide equivalent shuttle
service deters her from doing so at present.
Goldkorn, and Reiskin, along with the Civil Rights Education
and Enforcement Center (collectively "CREEC"),
 filed a putative class action against
HPT in the U.S. District Court for the Northern District of
California, alleging that HPT had failed to offer equivalent
accessible transportation services at its hotels in violation
of Title III of the Americans with Disabilities Act
("ADA"), 42 U.S.C. §§ 12182(a),
No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place
of public accommodation.
42 U.S.C. § 12182(a). A hotel is a public accommodation.
Id. § 12181(7)(A). Section 12182(b)(2)(B)
specifically requires private entities that
"operate" "fixed route systems" to
provide equivalent service to those with disabilities.
Id. § 12182(b)(2)(B). Section 12182(b)(2)(C)
requires the same of entities that "operate"
"demand responsive systems." Id. §
12182(b)(2)(C). CREEC alleges that, while most HPT hotels
provide some form of free local transportation service, very
few provide equivalent service that is accessible to people
who use wheelchairs or scooters for mobility.
the district court, CREEC moved to certify the class pursuant
to Federal Rule of Civil Procedure 23. It defined the class
as people with limited mobility who have been or will be
denied equivalent transportation services at HPT hotels.
CREEC alleges that the common questions of fact and law
include "[w]hether Defendant HPT's transportation
vehicles are readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs,
" and "[w]hether Defendant HPT has ensured that the
transportation system in place at each hotel, when viewed in
its entirety, meets the equivalent service requirements
of" the ADA. Fed.R.Civ.P. 23(a)(2). They also assert
that certification is proper under Rule 23(b)(2) because HPT
"acted or refused to act on grounds generally applicable
to the class, thereby making appropriate final injunctive or
declaratory relief with respect to the class as a
district court denied the motion. It held that the proposed
class did not meet the threshold Rule 23(a) requirement of
commonality because HPT delegates the operation of its hotels
to management companies. Deciding CREEC's claims, the
district court held, would necessitate 142
"mini-trials" to determine whether the particular
practices at each of the 142 challenged hotels violate Title
III. In the alternative, the district court held that CREEC
failed to meet the Rule 23(a) requirement of typicality, and
failed to establish that injunctive relief would be
"appropriate respecting the class as a whole, "
Fed.R.Civ.P. 23(b)(2). CREEC timely appealed.
district court had federal question subject matter
jurisdiction pursuant to 28 U.S.C. §§ 1331 &
1343. We have jurisdiction pursuant to 28 U.S.C. § 1291
and Fed.R.Civ.P. 23(f), which allows for interlocutory
appeals from denials of class-action certification.
first address whether CREEC has properly asserted Article III
standing. The following three elements constitute the
"irreducible constitutional minimum" of standing:
(1) an "injury in fact" suffered by the plaintiff;
(2) a causal connection between that injury and the
defendant's conduct; and (3) a likelihood that the injury
will be "redressed by a favorable decision."
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992). HPT argues that the Named Plaintiffs have failed to
satisfy both the injury-in-fact and redressability
requirements. We address these contentions in turn.
The Named Plaintiffs have properly ...