()

A federal appeals court has upheld the denial of class certification in a case disability advocates claim could make it more difficult to bring class actions over civil rights violations.

The case is one of several in which Denver-based Civil Rights Education and Enforcement Center has sued real estate investment trusts over alleged violations of the Americans with Disabilities Act. The defendant, a REIT called Hospitality Properties Trust, owns about 300 hotels under various names, including Hyatt and Country Inn & Suites. Of those, 142 provided shuttle services but not to those who use wheelchairs or scooters to get around, according to the suit, brought by three individuals.

In 2016, U.S. District Judge Jon Tigar in San Francisco refused to certify the class action after finding that the REIT had no common policy prohibiting ADA compliance across its hotels, which were managed by independent contractors.

On Wednesday, the U.S. Court of Appeals for the Ninth Circuit agreed, upholding Tigar’s ruling.

“A practice may indeed be evidence of a systematic policy,” wrote Kim McLane Wardlaw, “but it is undisputed that HPT, pursuant to its contracts, does not participate in the management and operation of the hotels. Absent any allegation that HPT somehow discourages its contractors from complying with the ADA, CREEC cannot establish a pattern of discrimination orchestrated by HPT, as it must in order to establish a question of fact common to its claims against HPT.”

In a dissent, U.S. District Judge Brian Morris of Montana, sitting by designation on the appellate panel, said the majority’s opinion would allow HPT “to shirk its responsibilities as the owner under the ADA.”

The case got the attention of a dozen legal aid and disability rights groups, including three nonprofits based in the Washington, D.C., area — National Disability Rights Network, Association of the Deaf and National Federation of the Blind — and several California groups led by the Impact Fund in Berkeley, California. In a Nov. 3 amicus brief, Lindsay Nako, director of litigation at the Impact Fund, argued that upholding the district judge’s ruling would allow employers to escape liability for civil rights violations. In an interview, she said the case highlighted how noncompliance with the law, even without a policy, often comes up in civil rights cases where the goal is to “make sure the violations don’t continue in the future.”

Tim Fox, co-executive director of CREEC, did not respond to a request for comment. But in the plaintiffs’ appeal brief, filed on Oct. 27, he called it “the epitome of the type of case for which” class actions were designed to address.

“Fundamentally, this civil rights case challenges HPT’s widespread ‘failure to act’ to comply with the law, a failure that has resulted in an injury common to a large number of people,” he wrote.

HPT lawyer David Raizman, a shareholder at Olgetree, Deakins, Nash, Smoak & Stewart in Los Angeles, declined to comment. In a Dec. 28 appeal brief, he maintained the separate management companies, not his client, would be in charge of policies dealing with ADA compliance. He also challenged standing, noting that none of the plaintiffs actually stepped foot in the hotels. They instead relied on phone calls that found 90 percent of HPT’s hotels providing shuttle services didn’t do so for those in wheelchairs and scooters.

But the Ninth Circuit upheld standing, citing rulings in the Eleventh and Tenth circuits that dealt with so-called tester standing in ADA cases.

“Actually visiting a hotel, as opposed to phoning, does not make a plaintiff’s injury any more concrete: she is deterred from using the accommodation in either event,” Wardlaw wrote.

Contact the reporter at abronstad@alm.com. On Twitter: @abronstadlaw.