*1 рenalty and that issue should remanded proceedings. I agency further
respectfully dissent. AND EN
CIVIL RIGHTS EDUCATION CENTER,
FORCEMENT on behalf
itself; Cupolo-Freeman; Ann Ruthee
Goldkorn; Reiskin, Julie on behalf proposed
themselves and a
similarly persons defined be situated
low, Plaintiffs-Appellants, TRUST,
HOSPITALITY PROPERTIES
Defendant-Appellee.
No. 16-16269 of Appeals,
United Court States
Ninth Circuit.
Argued May and Submitted Francisco,
San California , August
Filed 9
Before; J. ANDREW KLEINFELD WARDLAW, Circuit KIM McLANE MORRIS,** Judges, and BRIAN M. Judge. District Partial Partial Dissent Concurrence Judge MORRIS OPINION WARDLAW, Judge: Circuit presents questions of con- This case two *4 standing to claims under stitutional assert Americans Title III Disabilities with (“ADA”), Act question and the whether are claims maintainable those class (1) action. We must decide whether a Timothy Rights P. Civil (argued), Fox may rely on plaintiff effect “deterrent Center, Enforcement Den- and Education doctrine” to constitutional establish stand- Lee, Colorado; ver, Rights Bill Civil Lann ing under the she first- where lacks Center, Enforcement Education and knowledge hand that an establishment California; Berkeley, Campins, Cam- Julia (2) compliance; not ADA and whether a LLP, Cali- pins Lafayette,- Benham-Baker plaintiff standing has constitutiоnal where fornia; Disability Wilensky, Rights Julie only visiting her for a facility is motivation California, Oakland, California; Plain- it for ADA compliance. test We conclude tiffs-Appellants. standing may in both asserted However, although plain- circumstances. (argued), Christopher F. Raizman David tiffs standing to maintain this ADA Choi, Ogletree Wong, and Kathleen J. suit, court did district abuse P.C., & Stewart Los Deakins Nash Smoak denying discretion in certification. California, for Angeles, Defendant-Appel- finding The court did err in thát the lee. 23’s plaintiffs failed meet common- Rule Nako, Larkin, Lindsay Jocelyn arid D. ality requirement, given the lack consis- Miner, Fund, Berkeley, Lynnette Impact policies practices tent across the hotels California, Fund, for Amici Impact Curiae by Hospitality Properties owned defendant Advocates, Disability Rights Disability (“HPT”), оperated Trust but others. Fund, Rights Dis- Education & Defense I. Center, Rights Legal Disability ability Rights Oregon, Disability Rights Washing- HPT is a real estate trust investment Advocates, ton, (“REIT”) Equal Rights Legal Aid across the owns hotels Unit- States, California, Legal Association Aid Soci- ed are vehicles investors REITs - Center, ety Employment National Law to own of real a fraction of a estate group Deaf, Disability statute, holdings. of the National Association Under federal REITs Network, Rights National Federation on exempt corporate are from taxation of the shareholders are taxed when profits; Blind. ** Morris, tana, sitting by designation, Brian M. The Honorable United Judge for of Mon- States District the District §§ they receive 856- dividends.1 U.S.C. shall be discriminated .No .individual corporate To taxation against avoid basis of disability in the level, must, among things, REITs other equal enjoyment full and goods, passive delegate remain investors and services, facilities, privileges, advan- management particular facilities. Id. tages, or accommodations of any place of 856(d)(7). § public by any person accommodation ' owns, (or ,to), leases or oper- leases Cupolo-Freeman, Ann Named Plaintiffs place public ates a accommodation. Goldkorn, Julie Reiskin Ruthee (“Named Plaintiffs”) physically dis- 12182(a). § public is a A.hotel mobility. abled use wheelchairs for 12181(7)(A). § accommodation. Id. Section Cupolo-Freeman and reside Goldkorn 12182(b)(2)(B) requires specifically private California, while Reiskin lives Colorado. entities “operate” sys- “fixed route phoned Each an hotel located HPT-ownеd provide equivalent tems” service to provided in her state residence that free those Id. disabilities.. services, local in- shuttle each was 12182(b)(2)(B). 12182(b)(2)(C) Section re- formed issue did not hotel quires the that “operate” same entities provide equivalent for mo- shuttle service systems.” responsive “demand *5 alleges Each bility-impaired people. 12182(b)(2)(C). alleges that, CREEC stayed she at the she would have hotel provide while most hotels some form HPT provide to equiva- called but its failure service, local transportation very free addition, alleg- lent shuttle service. In each provide equivalent few that is ac- service stay still to es she intends at the people to or cessible who use wheelchairs hotel, equiva- to provide but that its failure mobility. scоoters for doing lent service her from shuttle deters court, Before the CREEC district present. so at to certify pursuant class moved Goldkorn, Reiskin, Cupolo-Freeman, and It Federal Rule of Civil Procedure 23. along Rights the Civil Education and with defined the as limited people with (collectively Center Enforcement mobility or will who have been be denied “CREEC”),2 putative filed a class action equivalent HPT services at transportation HPT in against District Court for alleges that the common hotels. CREEC California, alleg- District of Northern law include questions fact “[wheth- and ing equivalent that HPT offer had failed transportation er HPT’s vehi- Defendant transportation at its ho- accessible services readily cles are to and accessible usable in violation of III of the Ameri- tels Title disabilities, including individuals with indi- (“ADA”), Act cans with Disabilities wheelchairs,” viduals use and 12182(a), 12182(b)(2)(B), §§ “[wjhether HPT Defendant has ensured 12182(b)(2)(C). transportation system place in that the 12182(a) hotel, in provides:
Section when entirety, each viewed its Lokken, & The Committee defines ker 1. Senate Finance Lawrence Federal Taxation of Income, (2017). ¶ as REITs entities most Estates 99.5 and “received Gifts passive income [their] real-estate related investments,” 106-201, Rep. S. No. at 55 filing appeal, voluntarily After CREEC (1999). REITs receive conduit taxation treat its dismissed claims before the district court. get “permit investors ment individual Nevertheless, sake, simplicity's we follow management benefit centralized and referring appellants the district as court , being subjected to an diversification without "CREEC.” layer corporate Boris extra taxes.” I. Bitt (1992). argues HPT equivalent requirements serviсe the Named meets 23(a)(2). They satisfy P. of’ the ADA. R. Civ. Plaintiffs have failed both the Fed. proper injury-in-fact redressability require- assert that certification un- also 23(b)(2) HPT or because “acted ments. We address these der Rule contentions grounds generally appli- turn. refused act class, thereby making appro-
cable
declaratory
injunctive
properly
relief A. The Named
priate final
Plaintiffs
alleged injury
to the class as a whole.”
respect
fact.
It
court denied the
district
motion.
“requires
Article III
proposed
that the
class did
meet
held
party seeking
among
review himself
23(a) requirement of
the threshold Rule
Morton,
injured.”
Sierra Club
405 U.S.
delegates
commonality because
727, 734-35,
92 S.Ct.
III. (U.S.) Inc., Chapman Imports v. Pier 1 (9th banc). 939, 2011) (en firstWe address whether CREEC 631 F.3d 953 Cir. properly standing. has III asserted Article have dubbed We “deterrent effect following elements plaintiff three constitute doctrine.” Id. at 949-50. a “[W]hen meaning “irreducible minimum” who is of the constitutional within disabled (1) standing: аn in “injury knowledge fact” suffered ADA has actual illegal barri (2) by plaintiff; public a causal connection ers at accommodation to which he access, injury between and the defendant’s or she plaintiff desires need conduct; (3) a inju engage likelihood not in gesture’ that the the ‘futile of at ry by gain will be “redressed in tempting favorable deci access to show order sion.” Lujan Wildlife, v. 504 ...” injury. Holiday actual Pickern v. Defs. of 555, 560-61, Inc., 1133, Quality L.Ed.2d Foods 2002) (3) remedied; (quoting ADA violations they are 12188(a)(1)). long “So as the discrimina only to visit the by motivated hotels their continue, tory long and so as a conditions compliance; test them for ADA desire plaintiff is aware them and remains (4) they in allege injury deterred, con injury under the ADA original complaint, doing instead so in tinues.” Id. at 1137. the First Complaint. Amended None of facts standing. these defeats therefore, question,
The relevant
present
the Named Plaintiffs are
whether
1. The
Named Plaintiffs were
re-
visiting
from
ho
ly deterred
HPT-owned
quired to visit the hotels.
plead
limit our
tels.
evaluation to the
We
ings.
Agency
Cent. Delta
See
Water
HPT
plaintiff
that a
While
concedes
States,
306 F.3d
United
in-person
repeated
need
make
visits to
2002) (The
standing
“must
elements
be ADA non-compliant sites
order to dem
stage
litigation
of the
supported
each
noncompli
onstrate that
the defendant’s
any
manner as
other essential
same
access,
Pickern,
ance has deterred her
see
case.”).
element
plain
293 F.3d at
it contends that a
satisfy
injury-in-fact
tiff cannot
re
alleged
The Named Plaintiffs have
quirement unless she has had at least one
Cоmplaint
they
First Amended
“personal
alleged
encounter” with the
bar
hotels,
intend to visit the relevant
but have
argues
rier.
Named Plain
doing
by
from
so
the hotels’
been deterred
tiffs fail meet
this threshold because
They
ADA.
fur
noncompliance
they, merely
the hotels
in
telephoned
allege
they
ther
will visit the hotels
services avail
quire
transportation
about
Thus,
non-compliance is cured.
when the
guests.
able
disabled
prevented
the ADA violations have
them
staying
at the hotels. Without such
However,
purported require
averments, they
standing.
would lack
How
urged
“personal
HPT of a
ment
encoun
ever, “construing
allegations in
the factual
lacks
ter” with an access barrier
founda
complaint
plaintiffs,”
in favor of the
as
hotel,
visiting
Actually
tion Article III.
preliminary stage,
we must at this
Mont.
not make a
opposed
phoning,
does
Holder,
Shooting Sports Ass’n v.
727 F.3d
injury any more concrete: she
*7
975,
(9th
2013),
Cir.
we
that
979
conclude
in
using
from
the accommodation
deterred
sufficiently
Plaintiffs have
al
the Named
560,
504
at
Lujan,
either event. See
U.S.
Chapman,
in fact.
at
leged injury
631 F.3d
plaintiffs
“actual
112
2130. It is
S.Ct.
particu
harm is “concrete and
953. Their
barrier,
than the
knowledge” of a
rather
larized,”
intent to visit
and their
the hotels
that is determinative.
knowledge,
source of that
equivalent shuttle
they provide
once
ser
ern,
at 1135.
Pick
293 F.3d
for
their harm
vice
the disabled renders
imminent,
conjectural
not
or
“actual
True,
plaintiff has visit
whether a
560,
hypothetical.” Lujan,
while actions constitute “evi F.3d 1037-38 those bearing on is a whether there real distinguish planned dence. the term cases used repeated injury,” ones, threat immediate past from not to differentiate .visits 102, 1660, Lyons, U.S. at 103 S.Ct. “personal” “percipient” knowledge necessarily they dispositive are not evi knowledge. cit- secondhand The cases For example, dence. evidence concrete happened in Brooke all ed plain- involve plans travel would be sufficient show tiffs who had observed the lack of accom- a plaintiff disabled intends to visit a firsthand, but them modation held none.of facility, even if she has not travelled there that, a requirement. this was constitutional past. 564, 112 in the Lujan, See Accordingly, reject we HPT’s invitation Contrariwise, the absence of bright-line predicate to create a “per a plans, might "travel a visit not be past encounter” a sonal barrier access sufficient evidence of imminent future requirement standing as a under harm. See id. Making case-by-case Title III. determina Requiring plaintiff to “personally en- particular tions about whether counter” a barrier would also line- cause injury is imminent is well within the com drаwing problems. enough Would be See, petency e.g., district courts. to the concierge travel hotel ask the Inc., Supermarkets, Houston Marod whether the service accom- hotel’s shuttle d (as 2013) F.3 1335-37 disabled, plaintiff modates amust sessing determining various factors actually attempt purportedly use the plaintiff suing whether under ADA Title concierge deficient accommodation? If the III likely to actually was visit the super says accommodation, there is no must the market, visits, including prior proximity plaintiff perform a visual inspection or re- store, visits, plans for residence to future verify view schedules this? ifWhat as an “ADA status tester filed has plaintiff is blind? lawsuits”). many similar Nevertheless, HPT “personal insists its requirement encounter” dictated 2. The Named Plaintiffs in- need not precedent, citing сase', a district court' tend to the hotels visit until after Peterson, Brooke v. F.Supp.3d remediation. (C.D. 2016), 1207-11 proposi Cal. tion. Surveying Ninth Circuit cases HPT next contends the- Named doctrine, deterrent effect the Brooke court “a sufficient Plaintiffs establish precedent requires concluded that our . [they] again likelihood will. plaintiff' allege “personal, percipient wronged way,” Chapman, a similar knowledge [alleged] barriers access]” [to given allegation their *8 to sufficiently standing. assert Id. at 1207- stay not they plan do at the hotels According 10. to Brooke, secondhand unless and until remedies the alleged knowledge—obtained, example, for from a argument super- violations. This has some concierge or plaintiffs agent—is the insuf ficial appeal, courts bеcause have denied ficient. Id. standing plaintiff a unlikely where was
The actually experience Brooke court reads too much into a harm. threatened See, prior Morton, cases. places e.g., 734-35, our While at it talismanic 92 U.S. 405 weight 1361; Lujan, 562-64, our use of term 504 the “return” in at 112 S.Ct. U.S. Chapman, 631 F.3d at D’Lil v. S.Ct. 2130.
1101 that, However, really just language plaintiffs “pose this is a to hold roundabout purchasers or plaintiff purpose a as renters for the of way challenging of the rule that collecting engage gesture” steering in “futile evidence unlawful need not a have, practices” standing to for is on sue viola standing Title III if she establish 804(d). 373-75, tions of at Section Id. that the “does notice establishment 1114. S.Ct. comply” with the ADA. U.S.C. intend 12188(a)(1). Pickem, e § “un- As we in held t dmay tha We have held th disable ADA, actually a plaintiff der the once has standing Af assert tester under the FHA. discriminatory conditions aware
become decided, Realty Havens Congress ter was accommodation, existing public at FHA to specifically prohibit the amended visiting from or thereby deterred patroniz- “handicap” discrimination on thé basis accommodation, ing plaintiff has “terms, conditions, privileges or in , injury.” an at 1136-37. suffered F.3d dwelling.” of a sale rental 42 U.S.C. injury long equivalent continues so The 3604(f)(2). § Following reasoning Thus, HPT’s contention access is denied. Realty, Havens we held that tester stand fails. ing provision. was available under this Props. Smith v. Corp., Pac. & Dev. visiting hotels is
3. Motivation
2004).
1102-04
We
irrelevant.
e
that,
provision
reasoned
at
as with th
3604(f)(2)
yet
§
in
Realty,
Our court has
decide
issue
Havens
was
plaintiffs suing
pur
Title III of
whether
under
terms
fide
limited
bona
standing.”
chasers.
held that
ADA can claim
Id.
1104. We
“[i]nter
“tester
We
3604(f)(2)
§
preting
begin
analysis
question
[testers]
our
of this
exclude
from
Coleman,
enforcing
right
their
to be free from
Realty
Corp.
Havens
in
specific
discrimination undermines the
363, 372-74, 102
1114,
forcement
Friends of
“
(TOC),
‘any person
being subjected
Inc.,
is
that
Inc. v. Laidlaw
Servs.
Envtl.
disability’
167,
693,
the basis of
191,
discrimination
120
528 U.S.
145
S.Ct.
suit,”
may bring
exactly tracking
“any
(2000),
argues
610
HPT
L.Ed.2d
that two
Realty.
person” language Havens
Id. at
Plaintiffs,
of the three
Goldkorn
Named
12188(a)(1))
§
42
(quoting
U.S.C.
1332-33
Reiskin,
standing
lack
they
because
(alteration
original). Finally,
the Hous
include the factual bases for their
pointed
Congress
court
out that
ton
knows
allegations
original complaint.
in the
How
standing to
how to limit
sue under discrim
ever,
proper
ju
focus in determining
“the
groups
peo
ination
to certain
statutes
existing
risdiction are
at the
the facts
time
FHA,
ple, having
so both in the
see
done
complaint
consideration
under
was
3604(a)
§
(requiring
fide
U.S.C.
“bona
filed.”
Advisors Inc.
Northstar Fin.
purchase
bring
to rent
order to
offer”
Invs.,
1036,
Schwab
779 F.3d
suit),
ADA,
Title III of the
seе 42
2015) (internal quotation
marks omit
12182(b)(l)(A)(iv)
§
(limiting suits
ted).
Complaint
The First Amended
was
for
actions to “clients or
some
customers
complaint
under consideration when
accommodation”),
public
but
covered
standing,
the district court
it
assessed
12182(a).
§
it chose not to
that
do so
operative.
remains
and Reiskin
Goldkorn
Houston,
Accordingly,
733 F.3d
1333.
allege
adequately
complaint
in that
that
reasoned,
as a
the court
status
they
injured by
were
hotels’
HPT
failure
deprive
right
tester does not
her of the
to accommodate their disabilities. Accord
12182(a).
§
injunctive
sue for
relief under
ingly,
argument
HPT’s
fails.
Id. at 1332-34.
The Tenth Circuit has
that
also held
B.
by
the Named
harm suffered
standing is
tester
viable under Title III
is redressable.
Plaintiffs
ADA. Colo. Cross Disability
Coal. v.
that
Co.,
also contends
& Fitch
Abercrombie
2014).
finding
district court
1210-11
erred
CREEC
The Colorado
provides
standing
court noted that
III
has
Plaintiffs’
Cross
“Title
because the Named
‘any person’
redressable,
subjected
injuries
given
remedies
to ille-
that it
gal disability
discrimination.” Id. at
impossible
would be
court to
fashion
12188(a)). Thus,
(quoting 42 U.S.C.
However,
injunction.
a class-wide
this is
“anyone
concluded
who has suffered
just a
reiteration
HPT’s view
legal
protected
interest
an invasion
plaintiff
merits of
claims. A
CREEC’s
III
may
standing, regardless
Title
have
need
show that “a favorable decision
encountering
of his or her motivation in
will
injuries.
relieve” her
Larson v. Va
invasion.”
lente,
n.15,
(1982).
1103 The district court denied CREEC’s class IV. motion, concluding certification that denying A district court’s order com- CREEC failed demonstrate either is abuse of class certification reviewed monality typicality. R. or Fed. Civ. P. Co., Ins. Jimenez v. Allstate discretion. 23(a)(2)-(3). It also held that CREEC 2014). 1161, As F.3d 1164 satisfy requirements the of Rule suming applied district has the court 23(b) injunction sought because the it standard, court legal reviewing correct impermissibly vague, would have been if only may set aside decision injunсtion “a nothing more than bare reasoning “illogical, implausi court’s was Ryan, follow the law.” Parsons v.
ble, that support or without in inferences 657, 2014). 689 n.35 facts in the may be drawn from the rec 23(a)(2) requires com Rule “a ord.” Id. ... of mon contention such a nature that Wal- capable is of resolution.” classwide A must party seeking class certification Stores, Dukes, Inc. v. Mart (1) all mem- of “joinder demonstrate 180 L.Ed.2d (2) impracticable,” ques- is “there are bers (2011).A is common to all contention mem class,” tions of law or fact common if falsity “determination its truth or bers (3) or plaintiffs’ claims defenses named an issue that is central to the will resolve (4) class, typical are those validity of one of claims in each one fairly representative parties will “the stroke.” adequately protect interests HPT—a REIT—owns some 302 hotels 23(a). R. class.” Fed. P. Civ. States. CREEC has al- across United establishing all If party succeeds operate that 142 of these hotels shut- leged 23(a) elements, it four of the must then in a manner that tle services violates the requirements satisfy one the three However, oper- HPT does not itself ADA. 23(b). Rule CREEC Rule relies enjoy To tax ate the hotels. benefits under 23(b)(2), requires showing which must, statute, among things, other REITs or party opposing the has acted “the class delegate passive remain investors and gen- grounds apply refused act on management particular facilities. class, erally injunctive so final 856(d)(7). Accordingly, em- U.S.C. appropriate respecting ... is relief professional management ploys various class as a contends that wholе.” CREEC “eligible independent companies that are injunctive appropriate is because relief operate the hotels it owns. contractors” provision HPT has failed to ensure the “eligible independent An contractor” hotels, equivalent shuttle at its services “actively en- person corporation or con- and because the district court could gaged operating business the trade facilities,” ceivably implement instruct HPT to uni- qualified lodging and that does than of the policies practices comply percent form not control more voting power.3 26 ADA. REIT’s shares or (last 28, 2017). Presumably aspx operations out visited June 3. HPT has contracted its hotel managers control over the independent operators. these maintain a handful of website, manage, According properties they contracted to to its its 500 hotels operated by eligible independent could themselves be named defendants six contract- actions, firms, ultimately separate could ing including such names as household HPT, any discriminatory Portfolio, http:// responsible for Wyndham Hyatt. held practices. www.hptreit.com/portfolio/properties/default. *11 1104 856(d)(9). 856(d)(3), Although of
§§ HPT’s that each 142 hotels violat- “proving management compa- agreements with the ed the 142 require ADA would trials within all require “comply nies with the latter to a trial.” Id. manage- their of their laws in fulfillment . court did district not obligations,” agree- agreement ment those its finding abuse discretion that management stipulate ments also that the commonality. The court cor lackеd sole, companies have exclusive and “shall rectly found have HPT did a that uninterrupted control operation over the policy regarding eligible how its indepen provide HPT or the Hotels.” “does not set comply dent contractors to had with Companies any the Management with uni- ADA. that main CREEO HPT insists opera- policy plan regarding form or unwritten, policy an tained non defacto transportation at tion of services shuttle compliance widespread resulted in Thus, management it its hotels.” is the See, Jimenez, ADA e.g., violations. 765 HPT, companies, not that decide whether F.3d (finding at 1165-66 commonality transportation to local offer services alleged on policy based unofficial dis on that set the terms those services which couraging employees reporting over operate. time), However, not alleged CREEC has argues HPT there com- can be no any facts support theory. would regarding operation question mon allegations On the in the com amended law, its as a matter of fed- hotels because plaint, nothing HPT has to done discour delegate operat- HPT to requires eral law age its complying contractors from with ing if authority independent contractors Indeed, require ADA. HPT’s contracts it its wishes maintain REIT status and operators hotel comply applicable tax benefits See that flow therefrom. policy federal and This is state laws. a 856(Z)(3)(A). However, 26 U.S.C. the dis- delegation, non-compliance. While trict court held that the fact that commonality may be established based sрecific a to en- policy lacks and uniform .,. “pattern a of officially sanctioned [ille compliance sure ADA at its hotels defeated behavior,” gal] Ryan, Nordstrom v. 762 commonality, regardless of HPT’s reasons 2014), merely point lacking
for
policy.
a
The court rea-
such
harm,
ing
pattern
a
untethered to the
that,
legal
duty
adopt
soned
absent
conduct,
defendant’s
is insufficient.
specific
ADA,
policies to comply with the
“it
HPT’s
Nor
how
lack
admitted
did-
district
abuse
dis-
unclear
court
policy regarding
operation
finding
of shuttle
cretion in
the factual Issues
transportation
regarding
as the
alleged
sig-
services could
ADA
serve
violations are
‘glue’ holding together
nificantly
Plaintiffs claims.”
different at the
hotels.4
various
(citing Wal-Mart,
no
single, “general
131 There is
evidence of a
2541).
S.Ct.
that there
no “com-
policy
Given
was
could
discrimination” that
serve
court, held,
policy,”
Wal-Mart,
offending
mon
aas
common
issue.
U.S. at
Specifically,
4.
quired
days
court
district
at least two
notice
found that:
advance
arrange
transporta-
While some of
wheelchair-accessible
the hotels contacted
alleged
guest,
Plaintiffs are
have not
Named
tion
whereas nondisabled
any
transpor-
offered
guests
required
wheelchair-accessible
provide
were
less notice.
all,
alleged
Ctr.,
tation
are
to have
others
Rights
Civ.
Educ. &
Enforcement
transporta-
offered wheelchair-accessible
(N.D.Cal.2016) (citations
F.R.D.
101 n.4
tion,
required guests
but
to cover
costs.
omitted).
alleged
Still other
re-
hotels
352-53,
2001)
A practice may
(commonality satisfied
systematic
indeed be
of a
policy,
evidence
challenged
where
policy
written
see,
Jimenez,
e.g.,
Title the discrimi- hearing disability parole parole “in revocation nation the full basis equal proceedings, at numerous facilities across enjoyment of [accommodations] merits, argument We do not not the issue of certification. 5. reach HPT's that the class Second, argument apply does not even if were bear on ADA to it because it is not an this certification, "operator” transportation we need reach it be- services at the class 12182(b). First, the distriсt court on other hotels it owns. 42 U.S.C. cause we affirm us, goes grounds. issue is not before because it state, against discriminated them on ment opposed class certification on the disabilities. Id. ground basis their that class members suffered deten- tion for different reasons and under the argued on appeal The Board authority of different statutes. Id. at 1122. particu- in the nature of the wide variation applied We the commonality requirement precluded lar members’ class disabilities “to look legal some shared issue finding commonality. The Board con- a common core of facts.” Id. We deter- separate representative law- tended mined that the commonality existed in the hearing suits should been filed “constitutional issue the heart of each impaired, impaired, develop- vision claim for member’s relief.” Id. at mentally impaired, learning impaired, 1123. The of equivalent transporta- denial mobility impaired. disagreed. We tion violation stands at the rights in civil We noted liti- heart of CREEC’s claims for relief. This satisfy gation commonality require- legal shared issue satisfies commonali- challenges ment sys- “where the lawsuit ty requirement applied Rodriguez, practice policy tem-wide that affects all putative of the class members.” Id. at 868. among
Individual factual differences
*14
respect
to typicality, Armstrong
With
preclude
individual class members
did
again proves
instructive. The
sat-
commonality
all
where
suffered “similar
typicality requirement
isfied the
based on
harm
accommo-
from Board’s failure to
injury:
their
“a refusal or
to
same
failure
date their disabilities.” Id.
afford them
required
accommodations as
Plaintiffs here all
from similar
suffer
by
Armstrong,
statute.”
F.3d at 869.
harm
on HPT’s
based
failure to accommo-
mobility impaired persons,
In the
case
required by
date their disabilities as
injuries
their
in their
“inability
lied
recognized Armstrong,
ADA. As
wheth-
physical
overcome
barriers
attend-
provides
one
no van
for
er
hotel
service
result,
hearings.
ance” at
As a
all of
Id.
people
mobility impairments,
with
while
deprivation
the class
members suffered
charges
another hotel
extra for van service
Id.,
provided by
of services
the Board.
people
mobility impairments
with
citing 42 U.S.C.
12132. It mattered not
proves irrelevant to the issue of class certi-
facility may
that one Board
have failed
putative
fication.
all
Whether
of the
class provide
transрortation
mobility im-
van
members suffer from
failure of HPT’s
prisoners,
paired
while another
fa-
Board
hotels to accommodate their
disabilities
cility may
hearing or
provide
failed to
required by
instead should drive
for hearing impaired
translation assistance
analysis.
prisoners.
It mattered
the Board
acknowledged
Ninth Circuit has
accommodations re-
provide
The
failed
legal
quired by
Armstrong,
that the “existence of shared
issues
CREEC suffers
deprivation pro- services transportation allege by HPT’s Plaintiffs
vided hotels. hotels have
that HPT’s refused required them accommodations
afford
Ryan,
Parsons v.
the ADA.
754 F.3d
2014), upheld
certi-
ROBINS, individually
Thomas
Eighth
Amendment health care
fication
and
similarly
on behalf of all others
claims
conditions-of-confinement
situated, Plaintiff-Appellant,
now,
brought by
prisoners
“[a]U
be, subjected
in the future
will
medical,
mental health
dental care
INC.,
SPOKEO,
a California
Department
of the
practices
[Arizonа
corporation, Defendant-
A broader
more diverse
Corrections].”
Appellee.
of claims
difficult to contem-
seems
group
contemplate
plate. Arizona could not
11-56843
No.
argued
group
more
claims as
diverse
Appeals,
United States Court
"Eighth
healthcare
Amendment
Ninth Circuit.
conditions-of-confinement claims are inher-
ently
specific
many
case
and turn on
indi-
Argued and
December
Submitted
Parsons,
inquiries.”
custody to a substantial of serious risk
harm.” Id. at 676. We too should recognizé alleged practices
that the of HPT’s hotels failing comply equivalent requirement
transportation of the ADA ex-
poses CREEC to a and members sub-
stantial risk bf serious harm.
HPT’s REIT decision establish a as
its preferred ownership structure should alleged systematic
not shield HPT from its equivalent transporta-
effort evade the requirements majori-
tion of the ADA. The
ty’s claims conclusion that CREEC’s would
require 142 mini within a trial should trials HPT to certification
defeat allows its responsibilities as the owner
shirk un- I the ADA. CREEC has
der believe that commonality typicality
satisfied
requirements analyzed by Rule