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Clubs and bars have been luring women to their establishments with lower fees and shorter waits for decades, but a recent lawsuit claims that the practice is unconstitutional. New York attorney Roy Den Hollander, a solo practitioner for more than 15 years who deals primarily with civil litigation and corporate governance, has filed a class action against certain Manhattan nightclubs for “invidious discrimination” against men in their policies for admitting patrons. Hollander is seeking a declaratory judgment that would clarify whether nightclubs’ policies consist of “state action” due to their regulation by the New York State Division of Alcoholic Beverage Control, and consequently are subject to liability pursuant to 42 U.S.C. 1983, which allows civil action for deprivation of rights by persons acting under the color of state law. Hollander v. Copacabana Nightclub, No. 1:2007 CV 5873 (S.D.N.Y.). A case management and scheduling conference has been set for Oct. 11. 14th Amendment issue Hollander alleges that the clubs are violating the 14th Amendment’s guarantee of equal protection under the law, and, in addition to declaratory relief, he is seeking nominal damages and an injunction to halt the nightclubs’ practice of admitting women at a lower price than men. The nightclubs named in the suit include Copacabana Nightclub, China Club, AER Lounge and Sol. Hollander said he attended each of these venues on nights when they held promotions offering women either free or reduced fees, shorter waiting periods, or longer windows for free or reduced admission that were not available to men. He is looking to the case of Seidenberg v. McSorleys’ Old Ale House, Inc., 317 F. Supp 593 (S.D.N.Y.), as precedent for finding the existence of “state action” by bars and nightclubs. The court ruled in 1970 that state action existed when McSorleys’, a New York bar, refused to serve two women. Hollander also foresees an “uphill battle” in classifying the action as invidious discrimination, since he is arguing on behalf of men and not women, whom he says the U.S. Supreme Court has given “preferential treatment for past invidious, economic discrimination.” Tim Gleason, general manager of the China Club, said that he found Hollander’s grievance “ridiculous.” The China Club does offer promotions, sometimes organized by outside vendors, that offer special admission terms for women, Gleason said. Hollander maintains that hired promoters serve as agents of the clubs. Counsel for the Copacabana, AER and Sol nightclubs could not be reached for comment.

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