Civil Rights Education & Enforcement Center v. Hospitality Properties Trust, 2017 U.S. App. LEXIS 14673

Background

Plaintiffs (three named wheelchair users and CREEC) sued Hospitality Properties Trust (HPT), a REIT owning ~302 hotels, alleging many hotels’ shuttle/transport services fail to provide equivalent access in violation of Title III of the ADA.
Plaintiffs alleged they called hotels, learned shuttle services were not equivalent or accessible, were deterred from staying, and will stay only if ADA-compliant service is provided.
HPT owns hotels but delegates operation to independent management companies; contracts require legal compliance but give managers exclusive operational control.
District court denied class certification under Fed. R. Civ. P. 23, finding lack of commonality and typicality because hotel practices varied and HPT had no uniform offending policy.
On appeal, the Ninth Circuit held plaintiffs have Article III standing (including as testers and without a prior in-person visit) but affirmed denial of class certification for lack of commonality.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing — deterrent effect: whether knowledge of barriers (even via phone) suffices as injury-in-fact	Plaintiffs: actual knowledge of noncompliance deters use and constitutes continuing injury	HPT: plaintiffs lacked a personal encounter and thus no concrete injury	Held: deterrent-effect doctrine applies; actual knowledge (source irrelevant) can establish injury-in-fact
Standing — tester motivation: whether plaintiffs who visit only to test have standing	Plaintiffs: motive irrelevant; ADA protects "any person" and testers may sue for injunctive relief	HPT: testers lack standing because motive is not bona fide use	Held: motivation is irrelevant; tester standing is valid under Title III
Standing — imminence/redressability: whether intent to visit only post-remediation defeats standing or redressability	Plaintiffs: they intend to stay once violations are remedied; injunction would redress harm	HPT: plaintiffs won’t visit unless fixed, so injury isn’t imminent; relief couldn’t remedy class-wide harms	Held: intent to visit after remediation suffices for imminence; requested injunction would redress injury
Class certification — commonality under Rule 23(a)(2): whether HPT’s ownership (but not operation) yields a classwide common issue	Plaintiffs: alleged systematic failure to provide equivalent transportation across HPT hotels supports commonality and typicality	HPT: operations vary by independent managers; no uniform policy or practice by HPT ties claims together	Held: affirmed denial of class certification — no common "policy or practice" by HPT; factual variation across hotels defeats commonality

Key Cases Cited

Lujan v. Defs. of Wildlife, 504 U.S. 555 (standing requires concrete, particularized, and imminent injury)
Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011) (deterrent-effect doctrine under ADA Title III)
Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002) (plaintiff need not attempt futile gesture once aware of barriers)
Havens Realty Corp. v. Coleman, 455 U.S. 363 (tester standing recognized under FHA informational/discrimination provision)
Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) (tester standing under FHA amendments to protect disabled)
Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013) (tester standing held viable under ADA Title III)
Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014) (motivation irrelevant for Title III standing)
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (commonality requires a contention capable of classwide resolution)
Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (abuse-of-discretion review for class-cert denial)
Parsons v. Ryan, 754 F.3d 657 (class certification where uniform policies/practices caused systemic harm)
Armstrong v. Davis, 275 F.3d 849 (class certification where system-wide policies affected all putative members)
Rodriguez v. Hayes, 591 F.3d 1105 (common legal issue can satisfy commonality despite divergent factual predicates)