19405697-One-hundred-dollars-front-and-back-Stock-Photo-dollar-bill-hundred copyIn Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017) the Ninth Circuit decided once again to make abusive serial ADA litigation as easy as possible, ignoring both the constitutional limits on standing and the way cheap standing† has created a crisis in ADA litigation that Congress is only now beginning to fix.* The plaintiffs in Hospitality Properties Trust never visited the hotels they sued, relying instead on telephone calls in which they were supposedly told the defendant hotels lacked accessible free shuttle services. Beyond alleging the existence of these calls they included boilerplate allegations that they would have stayed at the hotel if there had been shuttle service and that they would visit in the future but were deterred by the ADA violation. This, they claimed, created an injury sufficient for Article III standing.

The Ninth Circuit’s analysis starts with the recognition the Supreme Court has held “past exposure to illegal conduct does not in itself show a present case or controversy” [quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)]. This means, of course, that the plaintiff must allege “continuing, present adverse effects” stemming from the defendant’s actions in order to maintain a cause of action. What “continuing, present adverse effects” might stem from a one time phone call? Invoking its own “deterrent effect doctrine” the Ninth Circuit found that an ADA injury continues “So long as the discriminatory conditions continue, and so long as a plaintiff is aware of them and remains deterred.” [quoting Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137 (9th Cir. 2002).] As long as the plaintiff is willing to allege deterrence then the pleadings will withstand a motion to dismiss.

The “deterrent effect doctrine” is itself a stretch in terms of standing. In City of Los Angeles v. Lyons the Supreme Court found that the plaintiff had not alleged standing for injunctive relief after being held in a choke-hold after a traffic stop. Despite his allegation that the police routinely used choke-holds after traffic stops the Supreme Court found there was no “real and immediate threat” of a future traffic stop and therefore no standing to seek injunctive relief. The “deterrent effect doctrine” in ADA cases finds a “real and immediate threat” of discrimination based on the plaintiff’s allegation that he would return someday but is deterred from returning by the supposed violation. It is as if the plaintiff in Lyons alleged that he was afraid of driving because of his fear of traffic stops and then relied on that fear to create a “concrete and immediate threat.” The harm of being deterred from going to a particular public accommodation hardly seems real or immediate. Nonetheless, the deterrent effect doctrine has been recognized in other circuits, although the best reasoned cases require something more.**

The “deterrent effect doctrine” makes even less sense in the situation presented by Hospitality Partners. The ordinary drive-by serial litigant claims at least to have seen a physical condition at the defendant’s property that will not, presumably, fix itself. Where there is a physical barrier to access it is likely that the discriminatory conditions will continue and the plaintiff can therefore plausibly allege he “is aware of them” without bothering to look again. When the plaintiff has done nothing more than make a single phone call as part of a survey looking for ADA violations, and gotten a single answer from a single unidentified hotel employee about a policy or service rather than a physical barrier, the existence of discrimination is doubtful, and its indefinite continuation into the future speculative. Nonetheless the Ninth Circuit endorses reliance on second-hand knowledge from an unidentified source, writing that  “[i]t is the plaintiff’s ‘actual knowledge’ of a barrier, rather than the source of that knowledge, that is determinative.”

Its use of the word “barrier” when the Ninth Circuit discusses actual knowledge shows the gap in its reasoning. Hospitality Partners is not about barriers to access, which are physical, but rather about discriminatory policies and services, which can change overnight.*** The plaintiff’s “actual knowledge” is hearsay coming from a hotel employee who may not himself have personal knowledge of the policy or service. How much uncertainty is permitted in a pleading under the Federal Rules? Does the plaintiff have to make the phone call, or can that be delegated to others in an ADA boiler room operation? Can the lawsuit be based on what the bell boy told the concierge without any plausible allegation that even the concierge knows the hotel’s policy? The Ninth Circuit’s opinion does not appear to set any limits on how far removed from the plaintiff the source of the supposed “actual knowledge” must be, for the Ninth Circuit explicitly refuses to engage in “line drawing.”

The Ninth Circuit recognizes that at the end of the day the plaintiff may not be able to prove an injury, but argues that “Making case-by-case determinations about whether a particular plaintiff’s injury is imminent is well within the competency of the district courts.” The notion that every claim, no matter how implausible, must go to trial flies in the face of Iqbal and Twombly,****  cases in which the Supreme Court tried to limit abusive lawsuits by requiring at least plausible allegations of fact that went beyond mere conclusions.

The decision in Hospitality Partners Trust is an open invitation to extortionate ADA litigation of the kind that is finally resulting in sanctions and even disbarment in Arizona and Colorado.***** Lawyers in those states who find the local federal courts inhospitable to mass-produced for-profit litigation need look no further than the Ninth Circuit for an inviting venue. Best of all, you don’t even need to leave home. Just pick up the phone and start dialing for dollars.

NOTES:

† See our blog, “Cheap Standing.” The decision in Hospitality Partners appears to reject the efforts we describe by the District Courts to require more than boilerplate standing allegations.

*Rep. Ted Poe’s bill to require advance notice before filing ADA lawsuits was recently reported out of committee and may reach a vote in the House. See, “A bipartisan solution to stopping drive-by lawsuits”

** There is an excellent survey of the law on standing in an ADA context in the recent decision Van Winkle v. Pinecroft Center, L.P., 2017 WL 3648477 (S.D. Tex. August 8, 2017). In that case the Court does not explicitly adopt any of the various tests for standing, merely finding that the Plaintiff might be able to meet one of them if he repleads, which she orders.

*** Because policies are so easily changed most courts will not agree that an ADA lawsuit based on a discriminatory policy has been mooted by a change in that policy. With continuation of any policy that uncertain it does not make sense to assume that a policy in existence in the past will continue. See our blogs mootness, including “Mootness and the ADA – Fighting may not be the best way to win.

**** See our earlier blog on pleading requirements, Iqbal, Twombly and the ADA.

***** See, “Judge Calls Lawsuit a Carnival Shell Game”


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