Case4:15-cv-00216-DMR Document1 Filed01/15/15 Page1 of 10

1 Timothy P. Fox – Cal. Bar No. 157750

Sarah M. Morris* 2 CIVIL RIGHTS EDUCATION AND

3

ENFORCEMENT CENTER 104 Broadway, Suite 400

4 Denver, CO 80203 (303) 757-7901

5 tfox@creeclaw.org

smorris@creeclaw.org 6

7

Bill Lann Lee – Cal Bar. No. 108452 Julie Wilensky – Cal. Bar No. 271765 Joshua Davidson – Cal. Bar No. 275168 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94612 (510) 839-6824 blee@lewisfeinberg.com jwilensky@lewisfeinberg.com mcaesar@lewisfeinberg.com

8 Julia Campins – Cal. Bar No. 238023

Kevin W. Williams*

Hillary Benham-Baker – Cal. Bar No. 265019 COLORADO CROSS-DISABILITY

9 CAMPINS BENHAM-BAKER, LLP

COALITION

8 California #703 10 San Francisco, CA 94111

655 Broadway #775 Denver, CO 80203

11

(415) 373-5333 julia@cbbllp.com

(303) 839-1775 kwilliams@ccdconline.org

12 hillary@cbbllp.com

13 *Pro hac vice application forthcoming

14 Attorneys for Plaintiffs and the Proposed 15 Class

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO/OAKLAND DIVISION

19

20 THE CIVIL RIGHTS EDUCATION AND

21

ENFORCEMENT CENTER, on behalf of itself, and ANN CUPOLO-FREEMAN and

22 KENNETH KILGORE, on behalf of themselves and a proposed class of

23 similarly situated persons defined below,

24 Plaintiffs,

25

v.

26

27

ASHFORD HOSPITALITY TRUST, INC.,

28 Defendant.

Case No. _______________
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

COMPLAINT

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1

2

Plaintiffs, the Civil Rights Education and Enforcement Center (“CREEC”), on behalf of

3 itself, and Ann Cupolo-Freeman and Kenneth Kilgore on behalf of themselves and a proposed

4 class defined below, by and through undersigned counsel, file their Class Action Complaint for

5 Declaratory and Injunctive Relief and respectfully allege as follows:

6

INTRODUCTION

7

1.

For more than 20 years, the Americans with Disabilities Act has required hotels

8 that provide transportation services to their guests to provide equivalent accessible transportation

9 services to guests who use wheelchairs or scooters.

10

2.

Nevertheless Defendant Ashford Hospitality Trust, Inc. (“Ashford”) – which

11 owns and/or operates approximately 93 hotels spread among more than 25 states – has repeatedly

12 failed to provide wheelchair-accessible transportation in hotels that provide transportation to

13 nondisabled guests.

14

3.

As a result, while Ashford’s nondisabled guests staying at these hotels can take

15 advantage of airport shuttle services and transportation services to areas near the hotel, guests

16 who use wheelchairs or scooters are denied these services. This action is limited to Ashford’s

17 violations of state and federal requirements governing accessible transportation, including for

18 example purchase and lease of accessible vehicles and provision of accessible transportation.

19

4.

Plaintiffs seek declaratory and injunctive relief establishing that Ashford has

20 engaged in violations of the ADA and California state law, and requiring Ashford to comply with

21 these statutes by providing wheelchair-accessible transportation services that are equivalent to

22 the transportation services provided to nondisabled guests at Ashford’s hotels.

23

JURISDICTION AND VENUE

24

5.

Plaintiffs’ claims arise under Title III of the Americans with Disabilities Act, 42

25 U.S.C. § 12181, et seq. (“ADA”), and the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq.

26 (“the Unruh Act”).

27

6.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

28 §§ 1331 and 1343, and pursuant to its supplemental jurisdiction over Plaintiffs’ claims brought

COMPLAINT

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1 under the laws of the State of California. This Court has jurisdiction over Plaintiffs’ claims for

2 declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.

3

7.

Venue is proper within this District pursuant to 28 U.S.C. § 1391(b).

4

INTRADISTRICT ASSIGNMENT

5

8.

This action arises in part in Contra Costa and Alameda Counties and thus is

6 properly assigned to the San Francisco/Oakland Division.

7

PARTIES

8

9.

Plaintiff the Civil Rights Education and Enforcement Center (“CREEC”) is a

9 nationwide civil rights membership organization based in Denver, Colorado whose mission

10 includes, among other purposes, ensuring that persons with disabilities participate in our nation’s

11 civic life without discrimination, including in the opportunity to benefit from the services

12 provided by hotels.

13

10. Plaintiff Ann Cupolo-Freeman is a member of CREEC and is and has been at all

14 relevant times a resident of the State of California. Plaintiff Cupolo-Freeman has diastrophic

15 dysplasia and uses a motorized wheelchair for mobility. She has a disability within the meaning

16 of the ADA, 42 U.S.C. § 12102, and a physical disability as that term is defined in applicable

17 California law, including California Government Code section 12926. Because Ms. Cupolo-

18 Freeman requires a wheelchair-accessible vehicle in order to utilize transportation services

19 offered by hotels, she has a personal interest in ensuring that hotels comply with federal and state

20 requirements governing provision of accessible transportation services to hotel guests. She is

21 also a tester in this litigation.

22

11. Plaintiff Kenneth Kilgore is a member of CREEC and is and has been at all times

23 material hereto a resident of the State of California. Plaintiff Kilgore is a quadriplegic who uses

24 a wheelchair for mobility. He has a disability within the meaning of the ADA, 42 U.S.C. §

25 12102, and a physical disability as that term is defined in applicable California law, including

26 California Government Code section 12926. Because Mr. Kilgore requires a wheelchair-

27 accessible vehicle in order to utilize transportation services offered by hotels, he has a personal

28

COMPLAINT

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1 interest in ensuring that hotels comply with federal and state requirements governing provision

2 of accessible transportation services to hotel guests. He is also a tester in this litigation.

3

12. Defendant Ashford is an investment trust incorporated in Maryland, with its

4 principal place of business at 14185 Dallas Parkway, Suite 1100, Dallas, Texas. Ashford is a

5 publicly traded, self-administered real estate investment trust focused on investing in the

6 hospitality industry across all segments and in all methods including direct real estate, equity,

7 and debt. Ashford owns and/or operates hotels throughout the United States, including

8 approximately 15 hotels in the State of California.

9

FACTS APPLICABLE TO ALL CLAIMS

10

13. Defendant Ashford owns and/or operates the Courtyard Oakland Airport located

11 in Oakland, CA, a hotel that provides its guests with a shuttle service to and from the Oakland

12 International Airport and at least one Bay Area Rapid Transit station.

13

14. On or about October 22, 2014, Plaintiff Kilgore telephoned the Courtyard

14 Oakland Airport hotel and asked if it provided wheelchair-accessible shuttle services. He was

15 informed that the hotel does not offer wheelchair-accessible shuttle services.

16

15. Had Plaintiff Kilgore been informed that the hotel did provide wheelchair-

17 accessible shuttle services, he intended to stay at the hotel and to use those services. He was

18 deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.

19

16. Plaintiff Kilgore would like to stay at the Courtyard Oakland Airport hotel in the

20 future and use the hotel’s transportation services, and will do so if he calls and is told that such

21 accessible services exist.

22

17. Defendant Ashford owns and/or operates the Embassy Suites Walnut Creek

23 located in Walnut Creek, CA, a hotel that provides its guests with a local shuttle service within a

24 five-mile radius of the hotel.

25

18. On or about October 28, 2014, Plaintiff Cupolo-Freeman telephoned the Embassy

26 Suites Walnut Creek and asked if it provided wheelchair-accessible shuttle services. She was

27 informed that the hotel does not offer wheelchair-accessible shuttle services.

28

COMPLAINT

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1

19. Had Plaintiff Cupolo-Freeman been informed that the hotel did provide

2 wheelchair-accessible shuttle services, she intended to stay at the hotel and to use those services.

3 She was deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.

4

20. Plaintiff Cupolo-Freeman would like to stay at the Embassy Suites Walnut Creek

5 in the future and use the hotel’s transportation services, and will do so if she calls and is told that

6 such accessible services exist.

7

21. On information and belief, Ashford owns and/or operates a number of other hotels

8 in the United States that offer transportation services to their guests but do not offer equivalent

9 transportation services to guests who use wheelchairs or scooters. These hotels include, without

10 limitation:

11

A. Residence Inn Phoenix Airport, 801 N 44th St., Phoenix, AZ

12

B. Courtyard Louisville Airport, 819 Phillips Ln., Louisville, KY

13

C. Hilton Garden Inn BWI Airport, 1516 Aero Dr., Linthicum, MD

14

D. Hilton Minneapolis/St. Paul Airport Mall of America, 3800 American Blvd. E,

15

Bloomington, MN

16

E. SpringHill Suites Raleigh-Durham Airport/Research Triangle Park, 920 Slater

17

Rd., Durham, NC

18

F. Omaha Marriott, 10220 Regency Cir., Omaha, NE

19

G. Embassy Suites Syracuse, 6646 Old Collamer Rd. S, East Syracuse, NY

20

H. Embassy Suites Philadelphia – Airport, 9000 Bartram Ave., Philadelphia, PA

21

I. Dallas Marriott Suites Medical/Market Center, 2493 N Stemmons Fwy., Dallas,

22

TX

23

J. Embassy Suites Dallas – Near the Galleria, 14021 Noel Rd., Dallas, TX

24

K. Embassy Suites Houston – Near the Galleria, 2911 Sage Rd., Houston, TX

25

L. Courtyard Arlington Crystal City/Reagan National Airport, 2899 Jefferson Davis

26

Hwy., Arlington, VA

27

M. Embassy Suites Dulles Airport, 13341 Woodland Park Dr., Herndon, VA

28

COMPLAINT

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1

22. On information and belief, after August 25, 1990, Ashford has purchased or

2 leased vehicles for use on fixed-route and/or demand-responsive transportation systems in place

3 at its hotels.

4

23. CREEC brings this action based on associational standing on behalf of its

5 members. CREEC’s members – including Mr. Kilgore and Ms. Cupolo-Freeman – include

6 persons with disabilities who use wheelchairs or scooters for mobility, who would like to stay at

7 Ashford hotels and use their transportation services, but have been deterred and prevented from

8 doing so by the failure of those hotels to provide equivalent, wheelchair-accessible transportation

9 services. Because CREEC seeks only declaratory and injunctive relief, individual participation

10 of CREEC members is not required.

11

24. Prior to filing this litigation, attorneys from CREEC wrote to Ashford, explaining

12 that many of its hotels are in violation of the transportation provisions of the ADA and state law,

13 and requesting that it bring its hotels into compliance with these statutes. Ashford did not

14 respond to this letter.

15

CLASS ACTION ALLEGATIONS

16

25. Plaintiffs Cupolo-Freeman and Kilgore (the “Representative Plaintiffs”) bring this

17 action on behalf of themselves and on behalf of a class defined as follows: individuals who use

18 wheelchairs or scooters for mobility who have been, or in the future will be, denied the full and

19 equal enjoyment of transportation services offered to guests at hotels owned and/or operated by

20 Ashford because of the lack of equivalent accessible transportation services at those hotels.

21

26. Joinder of all members of the proposed class would be impracticable because,

22 without limitation, the class consists of numerous individuals who are geographically diverse,

23 these individuals are very difficult to identify and they are unlikely to be able to bring individual

24 suits.

25

27. There are numerous common questions of law and fact, including but not limited

26 to:

27

A. Whether Defendant Ashford is a “private entity[y] . . . not primarily engaged in

28

the business of transporting people”;

COMPLAINT

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1

B. Whether hotels owned and/or operated by Defendant Ashford provide fixed-route

2

and/or demand-responsive transportation systems;

3

C. Whether Defendant Ashford has purchased or leased any vehicles after August

4

25, 1990 for use on fixed-route or demand-responsive systems, and if so, the

5

seating capacity of those vehicles;

6

D. Whether Defendant Ashford’s transportation vehicles are readily accessible to and

7

usable by individuals with disabilities, including individuals who use wheelchairs;

8

and

9

E. Whether Defendant Ashford has ensured that the transportation system in place at

10

each hotel, when viewed in its entirety, meets the equivalent service requirements

11

of 49 C.F.R. part 37.

12

28. The claims of the Representative Plaintiffs are typical of the claims of the class

13 because they arise from the same course of conduct engaged in by Defendant Ashford, are based

14 on the same alleged violations of the same statutes and regulations, and seek the same relief.

15

29. The Representative Plaintiffs will fairly and adequately represent the interests of

16 the class. The Representative Plaintiffs have no interests adverse to the interests of other

17 members of the class. Further, the attorneys they have retained include counsel who have been

18 appointed as class counsel in, and have successfully litigated, numerous disability rights class

19 actions across the country.

20

30. Finally, certification under Rule 23(b)(2) is proper here because Defendant

21 Ashford has acted or refused to act on grounds generally applicable to the class, thereby making

22 appropriate final injunctive or declaratory relief with respect to the class as a whole.

23

FIRST CLAIM FOR RELIEF

Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. 24

25

31. Plaintiffs incorporate by reference each and every allegation herein.

26

32. Title III requires that “[n]o individual shall be discriminated against on the basis

27 of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

28

COMPLAINT

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1 advantages, or accommodations of any place of public accommodation by any person who owns .

2 . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).

3

33. Hotels that provide fixed-route transportation services to guests must comply with

4 the following requirements:

5

A. For all purchases or leases after August 25, 1990, vehicles with a seating capacity

6

over 16 passengers must be wheelchair-accessible;

7

B. For all purchases or leases after August 25, 1990, vehicles with a seating capacity

8

of under 16 passengers must be either wheelchair-accessible or equivalent service

9

must be provided.

10

34. Hotels that provide on-demand transportation services to guests must either

11 provide wheelchair-accessible vehicles or ensure that equivalent service is provided.

12

35. Defendant Ashford owns and/or operates “an inn, hotel, motel, or other place of

13 lodging,” which is a place of public accommodation pursuant to 42 U.S.C. § 12181(7)(A), and is

14 also a “private entit[y] not primarily engaged in the business of transporting people” pursuant to

15 49 C.F.R. part 37.

16

36. Defendant Ashford has engaged in illegal disability discrimination, as defined by

17 Title III, including without limitation, by failing to ensure that transportation vehicles in use at its

18 hotels are readily accessible to and usable by individuals with disabilities, including individuals

19 who use wheelchairs, by failing to ensure that its hotels provide equivalent accessible

20 transportation services to such individuals, and/or by failing to ensure that personnel are trained

21 to proficiency with respect to the provision of accessible transportation services.

22

37. Defendant Ashford’s ongoing and continuing violations of Title III have caused,

23 and in the absence of an injunction will continue to cause, harm to the plaintiffs and the class.

24

SECOND CLAIM FOR RELIEF

Unruh Civil Rights Act, Cal. Civ. Code, § 51, et seq., and the Unruh Act’s

25

Incorporation of the ADA

26

38. Plaintiffs incorporate by reference each and every allegation herein.

27

39. Defendant Ashford’s hotels are business establishments and, as such, must

28 comply with the provisions of the Unruh Act.

COMPLAINT

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1

40. The Unruh Act guarantees, inter alia, that persons with disabilities are entitled to

2 full and equal accommodations, advantages, facilities, privileges, or services in all business

3 establishments of every kind whatsoever within the jurisdiction of the State of California. Cal.

4 Civ. Code § 51(b).

5

41. A violation of the ADA, the DOJ Standards, or Title 24 is also a violation of the

6 Unruh Act.

7

42. Defendant Ashford has violated the Unruh Act by, inter alia, denying, or aiding

8 or inciting the denial of, Plaintiffs’ and class members’ rights to the full and equal

9 accommodations, advantages, facilities, privileges, or services offered at Defendant’s business

10 establishments, specifically the transportation services offered at Defendant’s hotels.

11

43. Defendant has also violated the Unruh Act by denying, or aiding or inciting the

12 denial of, Plaintiffs’ and class members’ rights to equal access arising from the provisions of the

13 ADA.

14

44. Defendant Ashford’s ongoing and continuing violations of the Unruh Act have

15 caused, and in the absence of an injunction will continue to cause, harm to the plaintiffs and the

16 class.

17

PRAYER FOR RELIEF

18 WHEREFORE, Plaintiffs respectfully request judgment as follows:

19

1. A declaration that Defendant Ashford’s conduct as alleged here has violated, and

20 continues to violate, Title III of the Americans with Disabilities Act of 1990 and the Unruh Civil

21 Rights Act, as well as their implementing regulations;

22

2. Issuance of a permanent injunction requiring Defendant Ashford to comply with

23 the ADA and the Unruh Act;

24

3. Award of Plaintiffs’ reasonable attorneys’ fees and costs, as provided by law; and

25

4. Such other additional or alternative relief as the Court finds just and proper.

26

27

28

COMPLAINT

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1 Dated: January 15, 2015 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT

Respectfully Submitted,

By: __/s/ Timothy P. Fox
Timothy P. Fox – Cal. Bar No. 157750 Sarah M. Morris* CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, CO 80203 (303) 757-7901 tfox@creeclaw.org smorris@creeclaw.org

Bill Lann Lee – Cal Bar. No. 108452 Julie Wilensky – Cal. Bar No. 271765 Joshua Davidson – Cal. Bar No. 275168 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94612 (510) 839-6824 blee@lewisfeinberg.com jwilensky@lewisfeinberg.com mcaesar@lewisfeinberg.com

Julia Campins – Cal. Bar No. 238023 Hillary Benham-Baker – Cal.Bar No. 265019 CAMPINS BENHAM-BAKER, LLP 8 California #703 San Francisco, CA 94111 (415) 373-5333 julia@cbbllp.com hillary@cbbllp.com

Kevin W. Williams* COLORADO CROSS-DISABILITY COALITION 655 Broadway #775 Denver, CO 80203 (303) 839-1775 kwilliams@ccdconline.org

*Pro hac vice application forthcoming

Attorneys for Plaintiffs and the Proposed Class

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1 Timothy P. Fox – Cal. Bar No. 157750

Bill Lann Lee – Cal Bar. No. 108452

2 Sarah M. Morris, Pro Hac Vice CIVIL RIGHTS EDUCATION AND

Julie Wilensky – Cal. Bar No. 271765 Joshua Davidson – Cal. Bar No. 275168

3 ENFORCEMENT CENTER

LEWIS, FEINBERG, LEE & JACKSON, P.C.

104 Broadway, Suite 400

476 9th Street

4 Denver, CO 80203

Oakland, CA 94612

5

(303) 757-7901 tfox@creeclaw.org

(510) 839-6824 blee@lewisfeinberg.com

6 smorris@creeclaw.org

jwilensky@lewisfeinberg.com jdavidson@lewisfeinberg.com

7 Julia Campins – Cal. Bar No. 238023

Hillary Benham-Baker – Cal. Bar No.265019 Kevin W. Williams, Pro Hac Vice

8 CAMPINS BENHAM-BAKER, LLP

COLORADO CROSS-DISABILITY COALITION

9

8 California #703 San Francisco, CA 94111

655 Broadway #775 Denver, CO 80203

10 (415) 373-5333 julia@cbbllp.com

(303) 839-1775 kwilliams@ccdconline.org

11 hillary@cbbllp.com

12 Attorneys for Plaintiffs and the Proposed 13 Class

14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA
16 OAKLAND DIVISION
17

18 THE CIVIL RIGHTS EDUCATION AND
19 ENFORCEMENT CENTER, on behalf of itself, and ANN CUPOLO-FREEMAN and
20 KENNETH KILGORE, on behalf of 21 themselves and a proposed class of
similarly situated persons defined below,
22 Plaintiffs,
23 v.
24
ASHFORD HOSPITALITY TRUST, 25 INC.,
26 Defendant.
27

Case No. 4:15-cv-00216-DMR
PLAINTIFFS’ MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED AND/OR CONSOLIDATED FOR PRE-TRIAL PURPOSES ONLY
The Honorable Donna M. Ryu Courtroom 4, 3rd Floor Hearing Date: May 14, 2015 Hearing Time: 11:00 a.m.

28

PLS’ MOTION TO RELATE CASES AND/OR

CONSOLIDATE PRE-TRIAL ONLY

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1

NOTICE OF MOTION & RELIEF SOUGHT

2

On May 14, 2015, at 11:00 a.m., before the Honorable Donna M. Ryu, Plaintiffs will

3 move for an order treating as related and consolidating this case for pretrial purposes only with

4 two others also filed the same day in the Northern District of California as detailed below.
5 POINTS AND AUTHORITIES IN SUPPORT OF MOTION
6 Pursuant to Civil L.R. 3-121 and 7-2, and Fed. R. Civ. P. 42, Plaintiffs in the cases of
7 CREEC et al. v. Hospitality Properties Trust, No. 3:15-cv-00221 (“HPT”), and CREEC et al. v.
8
9 RLJ Lodging Trust, No. 4:15-cv-00224 (“RLJ”), respectfully submit this motion in this case,

10 CREEC et al. v. Ashford Hospitality Trust, Inc., No. 4:15-cv-00216-DMR (“Ashford”), to

11 consider whether these three cases should be related and/or consolidated for pre-trial purposes
12 only. All three cases are filed in this district, and all complaints are attached to this motion as 13
Exhibits 1-3. HPT is assigned to Judge Jon S. Tigar, and RLJ to Judge Yvonne Gonzalez Rogers. 14
As required by Civil L.R. 3-12(b), Plaintiffs are filing this motion in the lowest-numbered case, 15
16 Ashford. Plaintiffs have discussed this motion with all three defendants, and understand that at

17 least two such defendants oppose it.

18 I. BACKGROUND

19

The three cases were all filed by the same group of attorneys on January 15, 2015 in this

20 district, and no discovery has yet taken place in any of the cases. All of these cases are based on
21 alleged failures to provide required wheelchair-accessible transportation by owners and/or
22

23 operators of hotels. The plaintiffs are CREEC, Ann Cupolo-Freeman and Kenneth Kilgore in all

24 three actions, and Ruthee Goldkorn in two of the three (HPT and RLJ). Ashford Compl. ¶¶ 9-11,

25 25; HPT Compl. ¶¶ 9-12, 30; RLJ Compl. ¶¶ 9-12, 34. All seek certification of the identical class

26

1

Civil L.R. 3-12 provides that a motion to consider whether cases should be related

27 should be an administrative motion pursuant to Civil L.R. 7-11. Because in addition to relation under Civil L.R. 3-12, Plaintiffs are also seeking consolidation pursuant to Fed. R. Civ. P. 42,

28 Plaintiffs have filed this motion as a duly noticed motion pursuant to Civil L.R. 7-2.

PLS’ MOTION TO RELATE CASES AND/OR

CONSOLIDATE PRE-TRIAL ONLY

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1 of persons, all allege violations of the identical federal and state statutes and regulations, and all 2 seek the same relief.

3

The three defendants are substantially similar types of entities -- publicly traded real estate

4 investment trusts that own and/or operate hotels throughout the United States, including

5 California. Ashford Compl. ¶ 12; HPT Compl. ¶ 13; RLJ Compl. ¶ 13. The answers filed by the
6 three defendants demonstrate that they are asserting a number of common defenses, including for
7
example: 8

9

 Plaintiffs have failed to mitigate their damages, Ashford Answer at 8; HPT Answer

10

¶ 15, at 8; RLJ Answer ¶ 61;

11

 Plaintiffs are estopped by their own conduct, Ashford Answer at 9; HPT Answer

12 ¶ 13, at 10; RLJ Answer ¶ 64;
13  Plaintiffs lack standing, Ashford Answer at 12; HPT Answer ¶ 18, at 11; RLJ
14

15

Answer ¶ 71;

16

 The alleged violations are the fault of third parties, Ashford Answer at 2; HPT

17

Answer ¶ 8, at 9; RLJ Answer ¶ 77.

18

All defendants assert that the proposed class does not meet the requirements of Rule 23.

19 Ashford Answer at 11-12; HPT Answer ¶ 4, at 7; RLJ Answer ¶ 34. At least two of the defendants
20 have indicated that they will object to any discovery requests seeking information concerning
21

22 hotels covered by the putative class but not specifically identified in the complaints.

23 II. TREATMENT AS RELATED CASES FOR PRETRIAL PURPOSES ONLY IS

24 APPROPRIATE.

25

These actions meet the definition of “related cases” provided in Civil Local Rule 3-12(a):

26 An action is related to another when:

27

(1) The actions concern substantially the same parties, property, transaction or event; and

(2) It appears likely that there will be an unduly burdensome duplication of labor and

28

expense or conflicting results if the cases are conducted before different Judges.

PLS’ MOTION TO RELATE CASES AND/OR

CONSOLIDATE PRE-TRIAL ONLY

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1

First, the parties in all three cases are substantially the same. CREEC, Ms. Freeman and

2 Mr. Kilgore are plaintiffs in all cases, and Ms. Goldkorn is a plaintiff in two of the cases.
3 Plaintiffs in all three seek certification of identical classes consisting of individuals who use
4

5 wheelchairs or scooters for mobility who have been, or in the future will be, denied the full and

6 equal enjoyment of transportation services offered to guests at hotels owned and/or operated by

7 each of the three Defendants because of the lack of equivalent accessible transportation services

8 at those hotels. Ashford Compl. ¶ 25; HPT Compl. ¶ 30; RLJ Compl. ¶ 34. Additionally, each
9 Defendant is a similar type of entity.
10 It also “appears likely that there will be an unduly burdensome duplication of labor and
11 12 expense or conflicting results if the cases are conducted before different Judges.” Civil L.R. 3-
13 12(a)(2). Indeed, a very significant dispute has already arisen. At least two of the defendants

14 have indicated that they will oppose any discovery concerning hotels covered by the putative

15 class but not specifically identified in the complaint. There is no need for this same issue to be
16 decided by multiple courts.
17 Discovery has not yet commenced, but it is virtually certain that relating these cases will
18 19 be more efficient than keeping them separate. For example, the issue of whether the proposed
20 representative plaintiffs are adequate for purposes of Rule 23 involves discovery that will be

21 common among the cases, such as discovery concerning the nature of the representative

22 plaintiffs’ disabilities and their willingness to serve as representative plaintiffs for the class.

23

Further, because all three cases involve identical provisions of state and federal law, the

24 discovery requests and resulting disputes will be similar among the cases, including discovery on
25

topics such as the purchase and lease history of vans, the equivalent transportation services 26

27 provided by each defendant, etc. Determination of these pre-trial issues by three different judges,

28 in three different actions, would be unduly burdensome, inefficient, and risks conflicting results.

PLS’ MOTION TO RELATE CASES AND/OR

CONSOLIDATE PRE-TRIAL ONLY

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1

Finally, it would be more efficient to have one court address discovery disputes

2 concerning the common defenses raised by the three defendants, such as discovery relating to

3 whether the plaintiffs have standing in this case, whether they have mitigated their damages, and

4 potentially discovery concerning third parties allegedly responsible for the violations.

5

Thus, Plaintiffs request that all three cases be treated as related and be assigned to proceed

6 for pre-trial issues only before the judge assigned to Ashford, Magistrate Judge Ryu.
7

As a procedural matter, if this motion is granted, the cases will proceed before Magistrate 8

9 Judge Ryu for pre-trial purposes and return to the Judges currently assigned to them for

10 dispositive motion and trial purposes.

11 III. CONSOLIDATION FOR PRETRIAL PURPOSES ONLY IS APPROPRIATE.

12

In addition to treatment as related cases, Plaintiffs respectfully request consolidation of all

13 three cases – also for pre-trial purposes only – pursuant to Fed. R. Civ. P. 42. Rule 42(a) provides
14
that, “[i]f actions before the court involve a common question of law or fact, the court may: (1) 15

16 join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3)

17 issue any other orders to avoid unnecessary cost or delay.” “District courts have broad discretion

18 under this rule to consolidate cases pending in the same district,” and may do so “for purposes of
19 discovery and pre-trial proceedings only.” Chelsea, LLC v. Regal Stone, Ltd., No. 07-5800 SC, 20
2009 WL 250479, at *2 (N.D. Cal. Feb. 3, 2009) (citing Investors Research Co. v. U.S. Dist. 21
Court for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989)); see also § 2382 Consolidation— 22 23 When Permissible, 9A Fed. Prac. & Proc. Civ. § 2382 (3d ed.) (“Consolidation of actions in their
24 pretrial stage, under many circumstances, will be a desirable administrative technique and is

25 within the power of the court.”). “In deciding whether to consolidate actions under Rule 42(a),

26 the court must balance the savings of time and effort consolidation will produce against any 27

28

PLS’ MOTION TO RELATE CASES AND/OR

CONSOLIDATE PRE-TRIAL ONLY

- 5 -

CASE NO. 4:15-CV-00216-DMR

Case 4:15-cv-00216-DMR Document 32 Filed 03/25/15 Page 6 of 9

1 inconvenience, delay, or expense that it would cause.” Chelsea, 2009 WL 250479, at *2 (citing 2 Huene v. U.S., 743 F.2d 703, 704 (9th Cir. 1984)).

3

Consolidation would “not merge the suits into a single cause, or change the rights of the

4 parties, or make those who are parties in one suit parties in another.” Geddes v. United Fin. Grp.,

5 559 F.2d 557, 561 (9th Cir. 1977) (citation omitted). Rather, consolidation for pretrial purposes
6 only would allow this Court to efficiently manage a number of common discovery issues that
7
have, or will, arise in this case, which are set forth in detail above. 8

9

These efficiencies outweigh any inconvenience, delay, or expense on the part of

10 Defendant, which is negligible. The risk of delay is reduced, the expenses of litigation will likely

11 be reduced, and no inconvenience results simply by assigning pre-trial matters in this case to
12 Judge Ryu, a result permitted by case law and the Federal Rules of Civil Procedure themselves. 13
See Chelsea, LLC, 2009 WL 250479, at *2, 3 (permitting consolidation for discovery and pre-trial 14
purposes only); Fed. R. Civ. P. 72. Inconvenience, delay, and expense is further reduced by 15
16 having one judge issue determine all pre-trial issues in the first instance.

17

Plaintiffs therefore submit that this is an instance meriting exercise of the court’s broad

18 discretion to consolidate and request that these cases be consolidated for pre-trial purposes only.
19 IV. CONCLUSION 20
Accordingly, Plaintiffs respectfully request that Ashford, HPT, and RLJ be related and/or 21
consolidated for pre-trial purposes only with the lowest-numbered case, Ashford, and proceed 22 23 before the judge assigned to that case, Magistrate Judge Ryu.

24

25

26

27

28

PLS’ MOTION TO RELATE CASES AND/OR

CONSOLIDATE PRE-TRIAL ONLY

- 6 -

CASE NO. 4:15-CV-00216-DMR

Case 4:15-cv-00216-DMR Document 32 Filed 03/25/15 Page 7 of 9

1 Dated: March 25, 2015 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully Submitted,
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER
By: __/s/ Sarah M. Morris Sarah M. Morris
Attorneys for Plaintiffs and the Proposed Class

PLS’ MOTION TO RELATE CASES AND/OR

CONSOLIDATE PRE-TRIAL ONLY

- 7 -

CASE NO. 4:15-CV-00216-DMR

Case 4:15-cv-00216-DMR Document 32 Filed 03/25/15 Page 8 of 9

1

Certificate of Service

2

I hereby certify that on March 25 2015, I electronically filed the foregoing document with

3 the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

4 the following email address:

5

Nolan S. Armstrong

6

nolan.armstrong@mcnamaralaw.com

7

Counsel for Ashford Hospitality Trust

8

9

I hereby further certify that on March 25, 2015, I mailed and emailed the foregoing

10 document to the following:

11

David Howard Raizman

12

david.raizman@ogletreedeakins.com

13

Christopher Frank Wong

14

christopher.wong@ogletreedeakins.com

15

Ki’Jhana R. Friday

16

kijhana.Friday@ogletreedeakins.com

17

400 S. Hope St., Ste. 1200

18

Los Angeles, CA 90071

19

Counsel for Hospitality Properties Trust

20

21

Helen Lee Greenberg

22

helen.greenberg@lewisbrisbois.com

23

333 Bush St., Ste. 1100

24

San Francisco, CA 94104

25

Counsel for RLJ Lodging Trust

26

27

28

PLS’ MOTION TO RELATE CASES AND/OR

CONSOLIDATE PRE-TRIAL ONLY

- 8 -

CASE NO. 4:15-CV-00216-DMR

Case 4:15-cv-00216-DMR Document 32 Filed 03/25/15 Page 9 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLS’ MOTION TO RELATE CASES AND/OR CONSOLIDATE PRE-TRIAL ONLY

__/s/ Marissa McGarry __ Marissa McGarry Paralegal
Civil Rights Education and Enforcement Center

- 9 -

CASE NO. 4:15-CV-00216-DMR

 
 Case 4:15-cv-00216-DMR Document 41 Filed 04/15/15 Page 1 of 2
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

THE CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, et al.,

CASE NO. 15-cv-00216 DMR

Plaintiff(s),

STIPULATION AND [PROPOSED] ORDER SELECTING ADR PROCESS

v. ASHFORD HOSPITALITY TRUST, INC.

Defendant( s).
------------------------~'
Counsel report that they have met and conferred regarding ADR and have reached the following stipulation pursuant to Civil L.R. 16-8 and ADR L.R. 3-5:

The parties agree to participate in the following ADR process:

Court Processes: D Non-binding Arbitration (ADR L.R. 4) D Early Neutral Evaluation (ENE) (ADR L.R. 5) D Mediation (ADR L.R. 6)

(Note: Parties who believe that an early settlement conference with a Magistrate Judge is appreciably more likely to meet their needs than any other form ofADR must participate in an ADR phone conference and may notfile this form. They must insteadfile a Notice ofNeedfor ADR Phone Conference. See Civil Local Rule 16-8 and ADR L.R. 3-5)

Private Process: X Private ADR (please identify process and provider) Mediation

The parties agree to hold the ADR session by: X the presumptive deadline (The deadline is 90 days from the date ofthe order referring the case to an ADR process unless otherwise ordered.)
D other requested deadline ______________________

Dated: April15, 2015 Dated: April15, 2015

Is/ Julia Campins Julia Campins Attorney for Plaintiffs
Is/ Nolan S. Armstrong Nolan S. Armstrong Attorney for Defendant

Case 4:15-cv-00216-DMR Document 41 Filed 04/15/15 Page 2 of 2
CONTINUE TO FOLLOWING PAGE [PROPOSED] ORDER
D The parties' stipulation is adopted and IT IS SO ORDERED. D The parties' stipulation is modified as follows, and IT IS SO ORDERED.

Dated:

UNITED STATES JUDGE

When filing this document in ECF, please be sure to use the appropriate Docket Event, e.g., "Stipulation and Proposed Order Selecting Mediation.''

Rev. 12/11

Page 2 of2

 
 Case 4:15-cv-00216-DMR Document 42 Filed 04/17/15 Page 1 of 2
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

THE CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, et al.,

CASE NO. 15-cv-00216 DMR

Plaintiff(s),

STIPULATION AND [PROPOSED] ORDER SELECTING ADR PROCESS

v. ASHFORD HOSPITALITY TRUST, INC.

Defendant(s).
------------------------~/
Counsel report that they have met and conferred regarding ADR and have reached the following stipulation pursuant to Civil L.R. 16-8 and ADR L.R. 3-5:

The parties agree to participate in the following ADR process:

Court Processes:
0 Non-binding Arbitration (ADR L.R. 4)
0 Early Neutral Evaluation (ENE) (ADR L.R. 5) 0 Mediation (ADR L.R. 6)

(Note: Parties who believe that an early settlement conference with a Magistrate Judge is appreciably more likely to meet their needs than any otherform ofADR must participate in an ADR phone conference and may notfile this form. They must insteadfile a Notice ofNeedfor ADR Phone Conference. See Civil Local Rule 16-8 and ADR L.R. 3-5)

Private Process: X Private ADR (please identify process and provider) Mediation

The parties agree to hold the ADR session by: X the presumptive deadline (Fhe deadline is 90 days from the date ofthe order referring the case to an ADR process unless otherwise ordered.)
0 other requested deadline----------------------

Dated: April 15, 2015 Dated: April 15, 2015

Is/ Julia Campins Julia Campins Attorney for Plaintiffs
Is/ Nolan S. Armstrong Nolan S. Armstrong Attorney for Defendant

Case 4:15-cv-00216-DMR Document 42 Filed 04/17/15 Page 2 of 2

X

UNITED S
ALIFORNIA

OURT NORTH

4/17/15

TATES DISTRICT C IT IS SO ORDERED
Judge Donna M. Ryu ERN DISTRICT OF C

 
 Case 4:15-cv-00216-DMR Document 50 Filed 08/27/15 Page 1 of 2

1 Timothy P. Fox – Cal. Bar No. 157750 Sarah M. Morris, Pro Hac Vice
2 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER
3 104 Broadway, Suite 400 Denver, CO 80203
4 (303) 757-7901 tfox@creeclaw.org
5 smorris@creeclaw.org
6
7

Bill Lann Lee – Cal. Bar. No. 108452 Julie Wilensky – Cal. Bar No. 271765 Joshua Davidson – Cal. Bar No. 275168 Linda Lam – Cal. Bar No. 301461 LEWIS, FEINBERG, LEE & JACKSON, P.C. 476 9th Street Oakland, CA 94607 (510) 839-6824 blee@lewisfeinberg.com jwilensky@lewisfeinberg.com jdavidson@lewisfeinberg.com llam@lewisfeinberg.com

8 Julia Campins – Cal. Bar No. 238023 Hillary Benham-Baker – Cal. Bar No.
9 265019 CAMPINS BENHAM-BAKER, LLP
10 8 California #703 San Francisco, CA 94111
11 (415) 373-5333 julia@cbbllp.com
12 hillary@cbbllp.com

Kevin W. Williams, Pro Hac Vice COLORADO CROSS-DISABILITY COALITION 655 Broadway #775 Denver, CO 80203 (303) 839-1775 kwilliams@ccdconline.org

13 Attorneys for Plaintiffs and the Proposed
14 Class

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO/OAKLAND DIVISION

18

19 THE CIVIL RIGHTS EDUCATION AND

ENFORCEMENT CENTER, on behalf of 20 itself, and ANN CUPOLO-FREEMAN and

21

KENNETH KILGORE, on behalf of themselves and a proposed class of

22 similarly situated persons defined below,

Case No. 15-CV-00216-DMR
STIPULATION OF DISMISSAL OF ALL CLAIMS OF PLAINTIFF KENNETH KILGORE WITH PREJUDICE

23 Plaintiffs,

24

v.

25 ASHFORD HOSPITALITY TRUST, 26 INC.,

27

Defendant.

28

STIPULATION OF DISMISSAL OF ALL CLAIMS OF PLAINTIFF KILGORE

CASE NO. 4:15-CV-00216-DMR

Case 4:15-cv-00216-DMR Document 50 Filed 08/27/15 Page 2 of 2

1 IT IS HEREBY STIPULATED AND AGREED, by the undersigned counsel for Plaintiffs The

2 Civil Rights Education and Enforcement Center, Ann Cupolo-Freeman, and Kenneth Kilgore, on

3 the one hand, and the undersigned counsel for Defendant Ashford Hospitality Trust (Ashford), on

4 the other hand, that pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiff Kenneth

5 Kilgore dismisses all of his claims in this action against Ashford with prejudice. The parties agree

6 not to seek fees and costs from each other for fees and costs directly related to the instant

7 Stipulation and the dismissal of Mr. Kilgore’s claims.

8

9 DATED: August 27, 2015

CAMPINS BENHAM-BAKER, LLP

10

/s/ Julia Campins_______________________

Julia Campins

11

Attorneys for Plaintiffs and the Proposed Class

12

13 DATED: August 27, 2015 14 15 16 17

MCNAMARA, NEY, BEATTY, SLATTERY, BORGES & AMBACHER LLP
/s/ Nolan Armstrong Nolan Armstrong Attorneys for Defendant Hospitality Properties Trust

18

ATTESTATION

19

I attest that for all conformed signatures indicated by an “/s/,” the signatory has concurred

20 in the filing of this document.

21 Dated: August 27, 2015
22
23

/s/ Julia Campins Julia Campins

24

25

26

27

28

STIPULATION OF DISMISSAL OF ALL CLAIMS OF PLAINTIFF KILGORE

- 1 -

CASE NO. 4:15-CV-00216-DMR

 
 Case 4:15-cv-00216-DMR Document 54 Filed 08/31/15 Page 1 of 11

1 Timothy P. Fox – Cal. Bar No. 157750

Bill Lann Lee – Cal Bar. No. 108452

Sarah M. Morris, Pro Hac Vice 2 CIVIL RIGHTS EDUCATION AND

Julie Wilensky – Cal. Bar No. 271765 Joshua Davidson – Cal. Bar No. 275168

3

ENFORCEMENT CENTER 104 Broadway, Suite 400

Linda Lam – Cal. Bar No. 301461 LEWIS, FEINBERG, LEE & JACKSON, P.C.

4 Denver, CO 80203 (303) 757-7901

476 9th Street Oakland, CA 94612

5 tfox@creeclaw.org

(510) 839-6824

smorris@creeclaw.org 6

blee@lewisfeinberg.com jwilensky@lewisfeinberg.com

7 Julia Campins – Cal. Bar No. 238023

jdavidson@lewisfeinberg.com llam@lewisfeinberg.com

8 Hillary Benham-Baker – Cal. Bar No.265019

CAMPINS BENHAM-BAKER, LLP

Kevin W. Williams, Pro Hac Vice

9 8 California #703

COLORADO CROSS-DISABILITY

San Francisco, CA 94111 10 (415) 373-5333

COALITION 655 Broadway #775

11 julia@cbbllp.com hillary@cbbllp.com

Denver, CO 80203 (303) 839-1775

12

kwilliams@ccdconline.org

Attorneys for Plaintiffs and the Proposed

13 Class

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO/OAKLAND DIVISION

17

18

THE CIVIL RIGHTS EDUCATION AND Case No. 4:15-cv-00216-DMR

19 ENFORCEMENT CENTER, on behalf of

itself, and ANN CUPOLO-FREEMAN and PLAINTIFFS’ FIRST AMENDED AND

20 JULIE REISKIN on behalf of themselves 21 and a proposed class of similarly situated

SUPPLEMENTAL CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

persons defined below,

22 Plaintiffs,
23

v. 24

25 ASHFORD HOSPITALITY TRUST, INC.,
26
Defendant. 27

28

- 1 – FIRST AMENDED COMPLAINT

CASE NO. 4:15-cv-00216-DMR

Case 4:15-cv-00216-DMR Document 54 Filed 08/31/15 Page 2 of 11

1

Plaintiffs, the Civil Rights Education and Enforcement Center (“CREEC”), on behalf of

2 itself, and Ann Cupolo-Freeman and Julie Reiskin on behalf of themselves and a proposed class

3 defined below, by and through undersigned counsel, file their Class Action Complaint for

4 Declaratory and Injunctive Relief and respectfully allege as follows:

5

INTRODUCTION

6

1.

For more than 20 years, the Americans with Disabilities Act has required hotels

7 that provide transportation services to their guests to provide equivalent accessible transportation

8 services to guests who use wheelchairs or scooters.

9

2.

Nevertheless Defendant Ashford Hospitality Trust, Inc. (“Ashford”) – which

10 owns and/or operates approximately 93 hotels spread among more than 25 states – has repeatedly

11 failed to provide equivalent wheelchair-accessible transportation in hotels that provide

12 transportation to nondisabled guests.

13

3.

As a result, while Ashford’s nondisabled guests staying at these hotels can take

14 advantage of airport shuttle services and transportation services to areas near the hotel, guests

15 who use wheelchairs or scooters are denied equivalent services. This action is limited to

16 Ashford’s violations of state and federal requirements governing accessible transportation,

17 including for example purchase and lease of accessible vehicles and provision of accessible

18 transportation.

19

4.

Plaintiffs seek declaratory and injunctive relief establishing that Ashford has

20 engaged in violations of the ADA and California state law, and requiring Ashford to comply with

21 these statutes by providing wheelchair-accessible transportation services that are equivalent to

22 the transportation services provided to nondisabled guests at Ashford’s hotels.

23

JURISDICTION AND VENUE

24

5.

Plaintiffs’ claims arise under Title III of the Americans with Disabilities Act, 42

25 U.S.C. § 12181, et seq. (“ADA”), and the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq.

26 (“the Unruh Act”).

27

6.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

28 §§ 1331 and 1343, and pursuant to its supplemental jurisdiction over Plaintiffs’ claims brought

- 2 – FIRST AMENDED COMPLAINT

CASE NO. 4:15-cv-00216-DMR

Case 4:15-cv-00216-DMR Document 54 Filed 08/31/15 Page 3 of 11

1 under the laws of the State of California. This Court has jurisdiction over Plaintiffs’ claims for

2 declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.

3

7.

Venue is proper within this District pursuant to 28 U.S.C. § 1391(b).

4

INTRADISTRICT ASSIGNMENT

5

8.

This action arises in part in Contra Costa and Alameda Counties and thus is

6 properly assigned to the San Francisco/Oakland Division.

7

PARTIES

8

9.

Plaintiff the Civil Rights Education and Enforcement Center (“CREEC”) is a

9 nationwide civil rights membership organization based in Denver, Colorado whose mission

10 includes, among other purposes, ensuring that persons with disabilities participate in our nation’s

11 civic life without discrimination, including in the opportunity to benefit from the services

12 provided by hotels.

13

10. Plaintiff Ann Cupolo-Freeman is a member of CREEC and is and has been at all

14 relevant times a resident of the State of California. Plaintiff Cupolo-Freeman has diastrophic

15 dysplasia and uses a motorized wheelchair for mobility. She has a disability within the meaning

16 of the ADA, 42 U.S.C. § 12102, and a physical disability as that term is defined in applicable

17 California law, including California Government Code section 12926. Because Ms. Cupolo-

18 Freeman requires a wheelchair-accessible vehicle in order to utilize transportation services

19 offered by hotels, she has a personal interest in ensuring that hotels comply with federal and state

20 requirements governing provision of accessible transportation services to hotel guests. She is

21 also a tester in this litigation.

22

11. Plaintiff Julie Reiskin is a member of CREEC and is and has been at all times

23 material hereto a resident of the State of Colorado. Plaintiff Reiskin is a Board Member of the

24 Legal Services Corporation and the Executive Director of the Colorado Cross-Disability

25 Coalition. She travels frequently across the country. Plaintiff Reiskin has multiple sclerosis and

26 uses a power wheelchair for mobility. She has a disability within the meaning of the ADA, 42

27 U.S.C. § 12102, and a physical disability as that term is defined in applicable California law,

28 including California Government Code section 12926. Because Ms. Reiskin requires a

- 3 – FIRST AMENDED COMPLAINT

CASE NO. 4:15-cv-00216-DMR

Case 4:15-cv-00216-DMR Document 54 Filed 08/31/15 Page 4 of 11

1 wheelchair-accessible vehicle in order to utilize transportation services offered by hotels, she has

2 a personal interest in ensuring that hotels comply with federal and state requirements governing

3 provision of accessible transportation services to hotel guests. She is also a tester in this

4 litigation.

5

12. Defendant Ashford is an investment trust incorporated in Maryland, with its

6 principal place of business at 14185 Dallas Parkway, Suite 1100, Dallas, Texas. Ashford is a

7 publicly traded, self-administered real estate investment trust focused on investing in the

8 hospitality industry across all segments and in all methods including direct real estate, equity,

9 and debt. Ashford owns and/or operates hotels throughout the United States, including

10 approximately 15 hotels in the State of California.

11

FACTS APPLICABLE TO ALL CLAIMS

12

13. Defendant Ashford owns and/or operates the Courtyard Oakland Airport in

13 Oakland, CA, a hotel that provides its guests with free local shuttle service to Oakland Airport,

14 BART, and a rental car business. The website for this hotel provides information concerning the

15 inaccessible shuttle, but provides no information concerning accessible shuttle services.

16

14. On or about August 13, 2015, Plaintiff Reiskin telephoned the Courtyard Oakland

17 Airport and asked if it provided wheelchair-accessible shuttle services. She was informed that

18 the hotel does not offer wheelchair-accessible shuttle services. Plaintiff Reiskin was told that

19 when guests who use wheelchairs wish to use the hotel’s shuttle services, the hotel helps the

20 person inside the inaccessible van. Plaintiff Reiskin asked what the hotel did for people who use

21 power chairs. The hotel representative responded that the hotel once had a guest with a power

22 chair, and they had six pilots help carry the guest, and then his wheelchair, into and out of the

23 inaccessible van.

24

15. Had the hotel provided equivalent wheelchair-accessible shuttle services, and had

25 it informed Plaintiff Reiskin of those services, she intended to stay at the hotel and to use those

26 services. She was deterred from doing so by the hotel’s lack of equivalent wheelchair-accessible

27 shuttle services.

28

- 4 – FIRST AMENDED COMPLAINT

CASE NO. 4:15-cv-00216-DMR

Case 4:15-cv-00216-DMR Document 54 Filed 08/31/15 Page 5 of 11

1

16. Plaintiff Reiskin would like to stay at the Courtyard Oakland Airport in the future

2 and use the hotel’s transportation services, and will do so if the hotel accurately informs her that

3 it provides equivalent accessible transportation services.

4

17. Defendant Ashford owns and/or operates the Embassy Suites Walnut Creek

5 located in Walnut Creek, CA, a hotel that provides its guests with a local shuttle service within a

6 five-mile radius of the hotel.

7

18. On or about October 28, 2014, Plaintiff Cupolo-Freeman telephoned the Embassy

8 Suites Walnut Creek and asked if it provided wheelchair-accessible shuttle services. She was

9 informed that the hotel does not offer wheelchair-accessible shuttle services.

10

19. Had the hotel provided equivalent wheelchair-accessible shuttle services, and had

11 it informed Plaintiff Cupolo-Freeman been of those services, she intended to stay at the hotel and

12 to use those services. She was deterred from doing so by the hotel’s lack of equivalent

13 wheelchair-accessible shuttle services.

14

20. Plaintiff Cupolo-Freeman would like to stay at the Embassy Suites Walnut Creek

15 in the future and use the hotel’s transportation services, and will do so if the hotel accurately

16 informs her that it provides equivalent accessible transportation services.

17

21. On information and belief, Ashford owns and/or operates a number of other hotels

18 in the United States that offer transportation services to their guests but do not offer equivalent

19 transportation services to guests who use wheelchairs or scooters. These hotels include, without

20 limitation:

21

A. Residence Inn Phoenix Airport, 801 N 44th St., Phoenix, AZ

22

B. Courtyard Louisville Airport, 819 Phillips Ln., Louisville, KY

23

C. Hilton Garden Inn BWI Airport, 1516 Aero Dr., Linthicum, MD

24

D. Hilton Minneapolis/St. Paul Airport Mall of America, 3800 American Blvd. E,

25

Bloomington, MN

26

E. SpringHill Suites Raleigh-Durham Airport/Research Triangle Park, 920 Slater

27

Rd., Durham, NC

28

F. Omaha Marriott, 10220 Regency Cir., Omaha, NE

- 5 – FIRST AMENDED COMPLAINT

CASE NO. 4:15-cv-00216-DMR

Case 4:15-cv-00216-DMR Document 54 Filed 08/31/15 Page 6 of 11

1

G. Embassy Suites Syracuse, 6646 Old Collamer Rd. S, East Syracuse, NY

2

H. Embassy Suites Philadelphia – Airport, 9000 Bartram Ave., Philadelphia, PA

3

I. Dallas Marriott Suites Medical/Market Center, 2493 N Stemmons Fwy., Dallas,

4

TX

5

J. Embassy Suites Dallas – Near the Galleria, 14021 Noel Rd., Dallas, TX

6

K. Embassy Suites Houston – Near the Galleria, 2911 Sage Rd., Houston, TX

7

L. Courtyard Arlington Crystal City/Reagan National Airport, 2899 Jefferson Davis

8

Hwy., Arlington, VA

9

M. Embassy Suites Dulles Airport, 13341 Woodland Park Dr., Herndon, VA

10

22. On information and belief, after August 25, 1990, Ashford has purchased or

11 leased vehicles for use on fixed-route and/or demand-responsive transportation systems in place

12 at its hotels.

13

23. CREEC brings this action based on associational standing on behalf of its

14 members. CREEC’s members – including Ms. Cupolo-Freeman and Ms. Reiskin – include

15 persons with disabilities who use wheelchairs or scooters for mobility, who would like to stay at

16 Ashford hotels and use their transportation services, but have been deterred and prevented from

17 doing so by the failure of those hotels to provide equivalent, wheelchair-accessible transportation

18 services. Because CREEC seeks only declaratory and injunctive relief, individual participation

19 of CREEC members is not required.

20

24. Prior to filing this litigation, attorneys from CREEC wrote to Ashford, explaining

21 that many of its hotels are in violation of the transportation provisions of the ADA and state law,

22 and requesting that it bring its hotels into compliance with these statutes. Ashford did not

23 respond to this letter.

24

CLASS ACTION ALLEGATIONS

25

25. Plaintiffs Cupolo-Freeman and Reiskin (the “Representative Plaintiffs”) bring this

26 action on behalf of themselves and on behalf of a class defined as follows: individuals who use

27 wheelchairs or scooters for mobility who have been, or in the future will be, denied the full and

28

- 6 – FIRST AMENDED COMPLAINT

CASE NO. 4:15-cv-00216-DMR

Case 4:15-cv-00216-DMR Document 54 Filed 08/31/15 Page 7 of 11

1 equal enjoyment of transportation services offered to guests at hotels owned and/or operated by

2 Ashford because of the lack of equivalent accessible transportation services at those hotels.

3

26. Joinder of all members of the proposed class would be impracticable because,

4 without limitation, the class consists of numerous individuals who are geographically diverse,

5 these individuals are very difficult to identify and they are unlikely to be able to bring individual

6 suits.

7

27. There are numerous common questions of law and fact, including but not limited

8 to:

9

A. Whether Defendant Ashford is a “private entity[y] . . . not primarily engaged in

10

the business of transporting people”;

11

B. Whether hotels owned and/or operated by Defendant Ashford provide fixed-route

12

and/or demand-responsive transportation systems;

13

C. Whether Defendant Ashford has purchased or leased any vehicles after August

14

25, 1990 for use on fixed-route or demand-responsive systems, and if so, the

15

seating capacity of those vehicles;

16

D. Whether Defendant Ashford’s transportation vehicles are readily accessible to and

17

usable by individuals with disabilities, including individuals who use wheelchairs;

18

and

19

E. Whether Defendant Ashford has ensured that its transportation systems, when

20

viewed in their entirety, meet the equivalent service requirements of 49 C.F.R.

21

part 37.

22

28. The claims of the Representative Plaintiffs are typical of the claims of the class

23 because they arise from the same course of conduct engaged in by Defendant Ashford, are based

24 on the same alleged violations of the same statutes and regulations, and seek the same relief.

25

29. The Representative Plaintiffs will fairly and adequately represent the interests of

26 the class. The Representative Plaintiffs have no interests adverse to the interests of other

27 members of the class. Further, the attorneys they have retained include counsel who have been

28

- 7 – FIRST AMENDED COMPLAINT

CASE NO. 4:15-cv-00216-DMR

Case 4:15-cv-00216-DMR Document 54 Filed 08/31/15 Page 8 of 11

1 appointed as class counsel in, and have successfully litigated, numerous disability rights class

2 actions across the country.

3

30. Finally, certification under Rule 23(b)(2) is proper here because Defendant

4 Ashford has acted or refused to act on grounds generally applicable to the class, thereby making

5 appropriate final injunctive or declaratory relief with respect to the class as a whole.

6

FIRST CLAIM FOR RELIEF

Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. 7

8

31. Plaintiffs incorporate by reference each and every allegation herein.

9

32. Title III requires that “[n]o individual shall be discriminated against on the basis

10 of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

11 advantages, or accommodations of any place of public accommodation by any person who owns .

12 . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).

13

33. Hotels that provide fixed-route transportation services to guests must comply with

14 the following requirements:

15

A. For all purchases or leases after August 25, 1990, vehicles with a seating capacity

16

over 16 passengers must be wheelchair-accessible;

17

B. For all purchases or leases after August 25, 1990, vehicles with a seating capacity

18

of under 16 passengers must be either wheelchair-accessible or equivalent service

19

must be provided;

20

34. Hotels that provide on-demand transportation services to guests must either

21 provide wheelchair-accessible vehicles or ensure that equivalent service is provided.

22

35. Defendant Ashford owns and/or operates “an inn, hotel, motel, or other place of

23 lodging,” which is a place of public accommodation pursuant to 42 U.S.C. § 12181(7)(A), and is

24 also a “private entit[y] not primarily engaged in the business of transporting people” pursuant to

25 49 C.F.R. part 37.

26

36. Defendant Ashford has engaged in illegal disability discrimination, as defined by

27 Title III, including without limitation, by failing to ensure that transportation vehicles in use at its

28 hotels are readily accessible to and usable by individuals with disabilities, including individuals

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1 who use wheelchairs, by failing to ensure that its hotels provide equivalent accessible

2 transportation services to such individuals, and/or by failing to ensure that personnel are trained

3 to proficiency with respect to the provision of accessible transportation services.

4

37. Defendant Ashford’s ongoing and continuing violations of Title III have caused,

5 and in the absence of an injunction will continue to cause, harm to the plaintiffs and the class.

6

SECOND CLAIM FOR RELIEF

Unruh Civil Rights Act, Cal. Civ. Code, § 51, et seq., and the Unruh Act’s

7

Incorporation of the ADA

8

38. Plaintiffs incorporate by reference each and every allegation herein.

9

39. Defendant Ashford’s hotels are business establishments and, as such, must

10 comply with the provisions of the Unruh Act.

11

40. The Unruh Act guarantees, inter alia, that persons with disabilities are entitled to

12 full and equal accommodations, advantages, facilities, privileges, or services in all business

13 establishments of every kind whatsoever within the jurisdiction of the State of California. Cal.

14 Civ. Code § 51(b).

15

41. A violation of the ADA, the DOJ Standards, or Title 24 is also a violation of the

16 Unruh Act.

17

42. Defendant Ashford has violated the Unruh Act by, inter alia, denying, or aiding

18 or inciting the denial of, Plaintiffs’ and class members’ rights to the full and equal

19 accommodations, advantages, facilities, privileges, or services offered at Defendant’s business

20 establishments, specifically the transportation services offered at Defendant’s hotels.

21

43. Defendant has also violated the Unruh Act by denying, or aiding or inciting the

22 denial of, Plaintiffs’ and class members’ rights to equal access arising from the provisions of the

23 ADA.

24

44. Defendant Ashford’s ongoing and continuing violations of the Unruh Act have

25 caused, and in the absence of an injunction will continue to cause, harm to the plaintiffs and the

26 class.

27

PRAYER FOR RELIEF

28 WHEREFORE, Plaintiffs respectfully request judgment as follows:

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1

1. A declaration that Defendant Ashford’s conduct as alleged here has violated, and

2 continues to violate, Title III of the Americans with Disabilities Act of 1990 and the Unruh Civil

3 Rights Act, as well as their implementing regulations;

4

2. Issuance of a permanent injunction requiring Defendant Ashford to comply with

5 the ADA and the Unruh Act;

6

3. Award of Plaintiffs’ reasonable attorneys’ fees and costs, as provided by law; and

7

4. Such other additional or alternative relief as the Court finds just and proper.

8

9 Dated: August 31, 2015

By: /s/ Timothy P. Fox

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FIRST AMENDED COMPLAINT

Timothy P. Fox – Cal. Bar No. 157750 Sarah M. Morris, Pro Hac Vice CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, CO 80203 (303) 757-7901 tfox@creeclaw.org smorris@creeclaw.org
Bill Lann Lee – Cal Bar. No. 108452 Julie Wilensky – Cal. Bar No. 271765 Joshua Davidson – Cal. Bar No. 275168 Linda Lam – Cal. Bar No. 301461 LEWIS, FEINBERG, LEE & JACKSON, P.C. 476 9th Street Oakland, CA 94612 (510) 839-6824 blee@lewisfeinberg.com jwilensky@lewisfeinberg.com jdavidson@lewisfeinberg.com llam@lewisfeinberg.com
Julia Campins – Cal. Bar No. 238023 Hillary Benham-Baker – Cal. Bar No.265019 CAMPINS BENHAM-BAKER, LLP 8 California #703 San Francisco, CA 94111 (415) 373-5333 julia@cbbllp.com hillary@cbbllp.com
Kevin W. Williams, Pro Hac Vice
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FIRST AMENDED COMPLAINT

COLORADO CROSS-DISABILITY COALITION 655 Broadway #775 Denver, CO 80203 (303) 839-1775 kwilliams@ccdconline.org
Attorneys for Plaintiffs and the Proposed Class

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1 Timothy P. Fox – Cal. Bar No. 157750 Sarah M. Morris, Pro Hac Vice
2 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER
3 104 Broadway, Suite 400 Denver, CO 80203
4 (303) 757-7901 tfox@creeclaw.org
5 smorris@creeclaw.org

Bill Lann Lee – Cal. Bar. No. 108452 Julie Wilensky – Cal. Bar No. 271765 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER. 2120 University Ave. Berkeley, CA 94704 (510) 431-8484 blee@creeclaw.org jwilensky@creeclaw.org

6

7 Julia Campins – Cal. Bar No. 238023 Hillary Benham-Baker – Cal. Bar No.
8 265019 CAMPINS BENHAM-BAKER, LLP
9 935 Moraga Road, Suite 200 Lafayette, CA 94549
10 (415) 373-5333 julia@cbbllp.com
11 hillary@cbbllp.com

Kevin W. Williams, Pro Hac Vice COLORADO CROSS-DISABILITY COALITION 655 Broadway #775 Denver, CO 80203 (303) 839-1775 kwilliams@ccdconline.org

12 Attorneys for Plaintiffs and the Proposed
13 Class

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17

18 THE CIVIL RIGHTS EDUCATION AND

ENFORCEMENT CENTER, on behalf of 19 itself, and ANN CUPOLO-FREEMAN and

20

JULIE REISKIN, on behalf of themselves and a proposed class of similarly situated

21 persons defined below,

Case No. 4:15-cv-00216-DMR
UNOPPOSED NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS

22 Plaintiffs,

23

v.

24 ASHFORD HOSPITALITY TRUST, 25 INC.,

26

Defendant.

The Honorable Donna M. Ryu Courtroom 4, 3rd Floor Hearing Date: December 10, 2015 Hearing Time: 11:00 a.m.

27

28

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CASE NO. 4:15-CV-00216-DMR

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1

NOTICE IS GIVEN that on December 10, at 11:00 a.m., or as soon thereafter as the

2 matter may be heard in the above-entitled Court, Plaintiffs will and hereby do move the Court as

3 follows:

4

1. To certify the proposed class for settlement purposes only.

5

2. To preliminarily approve the Settlement Agreement (“Settlement” or “Settlement

6

Agreement”) (attached to the Proposed Preliminary Approval Order (“Proposed Order”) as

7

Exhibit A) between Plaintiffs, on behalf of themselves and Proposed Class, and Defendant

8

Ashford, by and through their respective counsel.

9

3. To set dates for the submission of any objections to the Settlement Agreement.

10

4. To set a Final Approval hearing.

11

5. To approve the form of Notice attached to the Proposed Order as Exhibit B.

12

6. To authorize the Notice dissemination plan described below.

13

7. To set a deadline for Class Counsel’s Motion for Attorneys’ Fees and Costs.

14

This unopposed motion is based on the Settlement Agreement, the Memorandum of

15 Points and Authorities in support of this Motion, the Declarations of Timothy Fox, Julia Campins,

16 Julie Wilensky, Kevin Williams, and Marissa McGarry in Support of the Unopposed Motion, and

17 all other papers filed in this action.

18

19

20 DATED: November 5, 2015

CAMPINS BENHAM-BAKER, LLP

21

/s/Julia Campins

Julia Campins

22

Attorneys for Plaintiffs and the Proposed Class

23

24

25

26

27

28

MOT. FOR PRELIM. APPROVAL & CERT. OF SETTLEMENT CLASS

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1

TABLE OF CONTENTS

2 Background ...................................................................................................................................... 2

3

I. Legal Background ............................................................................................................. 2

4

II. Factual Background........................................................................................................... 3

A. Ashford............................................................................................................................. 3

5

B. Plaintiffs’ Investigation.................................................................................................... 4

6

C. Negotiations and Settlement ............................................................................................ 5

7 Argument ......................................................................................................................................... 6

8

I. The Proposed Class Should Be Certified .......................................................................... 6

A. The Named Plaintiffs Have Standing to Seek Injunctive Relief...................................... 6

9

B. The Proposed Class Meets Rule 23.................................................................................. 9

10

1. The Proposed Class Is Ascertainable. ...................................................................... 11

2. The Proposed Class Meets the Requirements Of Rule 23(a). .................................. 12

11

i. The proposed class satisfies the numerosity requirement. ....................................... 12

12

ii. The proposed class satisfies the commonality requirement. ................................ 13

iii. The claims of the named plaintiffs satisfy the typicality requirement. ................ 15 13
iv. The proposed representatives meet the adequate representation requirement. .... 16

14

v. The proposed class counsel meet the requirements of Rule 23(g). ...................... 16

15

3. The Proposed Class Satisfies Rule 23(b)(2). ........................................................... 17

16

II. The Proposed Settlement Should Be Preliminarily Approved ........................................ 18

A. Injunctive Relief............................................................................................................. 18

17

B. Class Release.................................................................................................................. 20

18

C. Attorneys’ Fees and Costs and Costs of Administration and Monitoring of the

Settlement............................................................................................................................... 20

19

D. The Proposed Settlement Merits Preliminary Approval. ............................................... 21

20

1. Injunctive Relief....................................................................................................... 21

2. The Provision for Attorneys’ Fees and Costs Is Fair. .............................................. 22

21

E. The Proposed Form of Notice and Notice Plan Satisfy Due Process and Should Be

Approved................................................................................................................................ 23 22

23 Conclusion ..................................................................................................................................... 24

24

25

26

27

28

MOT. FOR PRELIM. APPROVAL & CERT. OF SETTLEMENT CLASS

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1

TABLE OF AUTHORITIES

2

3

FEDERAL CASES

Armstrong v. Davis,

4

275 F.3d 849 (9th Cir. 2001)....................................................................................... 6, 10, 15

5 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994) ........................................................................ 11, 12, 13, 16

6 Arnott v. U.S. Citizenship & Immig. Servs.,

290 F.R.D. 579 (C.D. Cal. 2012). ......................................................................................... 12

7 Balla v. Idaho,

8

677 F.3d 910 (9th Cir. 2012).................................................................................................22

Bates v. United Parcel Serv.,

9

204 F.R.D. 440 (N.D. Cal. 2001) .................................................................................... 12, 16

10 Berlowitz v. Nob Hill Masonic Mgmt., Inc., No. C-96-01241 MHP,

11

1996 WL 724776 (N.D. Cal. Dec. 6, 1996) .......................................................................... 11

Betancourt v. Federated Dept. Stores,

12

732 F. Supp. 2d 693 (W.D. Tex. 2010)...................................................................................8

13 Burns v. Elrod, 757 F.2d 151 (7th Cir. 1985).................................................................................................23

14 Californians for Disability Rights, Inc. v. California Dep’t of Transp.,

249 F.R.D. 334 (N.D. Cal. 2008) .............................................................................. 10, 12, 13

15 Chapman v. Pier 1 Imports (U.S.) Inc.,

16

631 F.3d 939 (9th Cir. 2011)........................................................................................... 6, 7, 8

Churchill Vill., L.L.C. v. Gen. Elec.,

17

361 F.3d 566 (9th Cir. 2004).................................................................................................23

18 Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014)...............................................................................7, 9, 12, 17

19 Ellis v. Costco Wholesale Corp.,

657 F.3d 970 (9th Cir. 2011).................................................................................................13

20 Evans v. Linden Research, Inc.,

21

No. C 11-01078 DMR,

2012 WL 5877579 (N.D. Cal. Nov. 20, 2012)......................................................................13

22 Evon v. Law Offices of Sidney Mickell,

688 F.3d 1015 (9th Cir. 2012)...............................................................................................14

23 Hernandez v. Cnty. of Monterey,

24

305 F.R.D. 132 (N.D. Cal. 2015) .......................................................................................... 12

Houston v. Marod Supermarkets, Inc.,

25

733 F.3d 1323 (11th Cir. 2013).......................................................................................7, 8, 9

26 In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) ................................................................................ 21

27 Klaus v. Jonestown Bank & Trust Co. of Jonestown, PA,

No. 1:12-CV-2488,

28

2013 WL 4079946 (M.D. Pa. Aug. 13, 2013) ........................................................................ 8

MOT. FOR PRELIM. APPROVAL & CERT. OF SETTLEMENT CLASS

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Lane v. Kitzhaber,

1

283 F.R.D. 587 (D. Or. 2012) ............................................................................................... 15

2 Lucas v. Kmart Corp., 234 F.R.D. 688 (D. Colo. 2006)............................................................................................23

3 Marilley v. Bonham,

No. C-11-02418-DMR,

4

2012 WL 851182 (N.D. Cal. Mar. 13, 2012) ........................................................................ 15

5 Moeller v. Taco Bell Corp., No. C 02-5849 PJH,

6

2012 WL 3070863 (N.D. Cal. July 26, 2012) ....................................................................... 11

Molski v. Arby’s Huntington Beach,

7

359 F. Supp. 2d 938 (C.D. Cal. 2005)..................................................................................... 8

8 Molski v. Price, 224 F.R.D. 479 (C.D. Cal. 2004) ............................................................................................ 8

9 Nat’l Fed’n of the Blind v. Target Corp.,

582 F. Supp. 2d 1185 (N.D. Cal. 2007) ................................................................................ 11

10 Nat’l Fed’n of the Blind v. Target Corp.,

11

No. C 06-01802 MHP,

2007 WL 1223755 (N.D. Cal. Apr. 25, 2007........................................................................12

12 O’Connor v. Boeing N. Am., Inc.,

184 F.R.D. 311 (C.D. Cal. 1998) .......................................................................................... 10

13 Park v. Ralph’s Grocery Co.,

14

254 F.R.D. 112 (C.D. Cal. 2008) .............................................................................. 10, 13, 16

Parsons v. Ryan,

15

754 F.3d 657 (9th Cir. 2014).................................................................................................14

16 Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986) .............................................................................................................. 22

17 Pickern v. Holiday Quality Foods Inc.,

293 F.3d 1133 (9th Cir. 2002).................................................................................................7

18 Rodriguez v. Hayes,

19

591 F.3d 1105 (9th Cir. 2010)...............................................................................................17

Shelton v. Bledsoe,

20

775 F.3d 554 (3d Cir. 2015)..................................................................................................10

21 Shields v. Walt Disney Parks and Resorts US, Inc., No. CV 10-05810 DMG (JEMx),

22

2011 WL 7416335 (C.D. Cal. June 29, 2011) ................................................................ 15, 17

Siddiqi v. Regents of the Univ. of Calif.,

23

No. C 99-0790 SI,

2000 WL 33190435 (N.D. Cal. Sept. 6, 2000) ..................................................................... 11

24 Smith v. Pacific Properties and Development Corp.,

25

58 F.3d 1097 (9th Cir. 2004)...............................................................................................8, 9

Sollenbarger v. Mountain States Telephone & Telegraph Co.,

26

121 F.R.D. 417 (D.N.M. 1988) ............................................................................................. 23

27 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003)...........................................................................................10, 21

28 Sueoka v. United States,

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101 Fed. Appx. 649 (9th Cir. 2004) ...................................................................................... 12

1 Tandy v. City of Wichita,

2

380 F.3d 1277 (10th Cir. 2004)...............................................................................................7

Tulsa Professional Collection Services, Inc. v. Pope,

3

485 U.S. 478 (1988) .............................................................................................................. 23

4 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) .................................................................................................... 13, 17

5 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998)...............................................................................................17
6 FEDERAL STATUTES

7 26 U.S.C. § 856 ....................................................................................................................... 4, 14

8 42 U.S.C. § 12182 ......................................................................................................................... 7 RULES
9 Federal Rule of Civil Procedure 23(a)(1).................................................................................... 12

10 Federal Rule of Civil Procedure 23(a)(2).................................................................................... 13

11 Federal Rule of Civil Procedure 23(a)(3).................................................................................... 15 Federal Rule of Civil Procedure 23(a)(4).................................................................................... 16
12 Federal Rule of Civil Procedure 23(c)(2).................................................................................... 23

13 Federal Rule of Civil Procedure 23(e) ........................................................................ 1, 21, 23, 24

14 Federal Rule of Civil Procedure 23(e)(1).................................................................................... 23 TREATISES
15 7A Fed. Prac. & Proc. Civ. § 1762 (3d ed.) ................................................................................ 12

16 Manual for Complex Litigation, Second § 30.44 (1985) ............................................................ 21

17 Newberg on Class Actions § 11.25 (1992) ................................................................................. 21 Newberg on Class Actions § 3:27 (5th ed.) ................................................................................ 14
18 Newberg on Class Actions § 3:7 (5th ed.) .................................................................................. 11

19

REGULATIONS

20 26 C.F.R. § 1.856-4 ................................................................................................................. 4, 14 49 C.F.R. § 37.101 ........................................................................................................................ 2
21 49 C.F.R. § 37.105 .................................................................................................................... 2, 3

22 49 C.F.R. § 37.171 ........................................................................................................................ 2

23 49 C.F.R. § 37.37 .......................................................................................................................... 2

24

25

26

27

28

MOT. FOR PRELIM. APPROVAL & CERT. OF SETTLEMENT CLASS

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1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED

2 MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT AND

3

CERTIFICATION OF SETTLEMENT CLASS

4

The parties in this injunctive-relief class action, which involves alleged violations of the

5 Americans with Disabilities Act and California state law concerning provision of wheelchair-

6 accessible transportation by hotels, have reached a settlement agreement that provides substantial

7 benefits to the class.

8

Specifically, this Settlement ensures that the current approximately 73 Ashford hotels that

9 provide transportation to hotel guests (“Ashford Hotels” or “Hotels”), and those Hotels that

10 provide transportation in the future, will also provide equivalent accessible transportation to Class

11 Members. The Plaintiffs did not bring claims for damages, and do not waive damages claims for

12 the Proposed Class with this settlement; instead they are achieving full compliance with the law

13 as requested in the Complaint. For these and other reasons discussed below, Plaintiffs’ Counsel,

14 who are experienced disability rights and class action practitioners, believe this Settlement—

15 negotiated at arm’s length over more than three months with the assistance of a mediator who is a

16 retired federal Magistrate Judge—to be a fair, adequate, and reasonable resolution of the claims

17 against Defendant. Accordingly, pursuant to Federal Rule of Civil Procedure 23(e), Plaintiffs

18 request that the Court:

19

(i) certify the proposed settlement class;

20

(ii) preliminarily approve the Settlement of this litigation;

21

(iii) approve the proposed form of class notice;

22

(iv) authorize dissemination of the notice in the manner described below;

23

(v) set deadlines for Class Members to object to the Settlement Agreement;

24

(vi) set a deadline for Class Counsel’s motion for Attorneys’ Fees and Costs; and

25

(v) set a fairness hearing to provide Class Members an opportunity to be heard and,

26 should the Court see fit, for entry of final approval of the proposed Settlement Agreement and the

27 petition of Class Counsel for an award of attorneys’ fees and costs.

28

MOT. FOR PRELIM. APPROVAL & CERT. OF SETTLEMENT CLASS

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1

BACKGROUND

2 I. Legal Background

3

Transportation services provided by hotels are covered by the ADA regulations applicable

4 to “private entities not primarily engaged in the business of transporting people,” which include

5 “[s]huttle systems and other transportation services operated by privately-owned hotels.” See 49

6 C.F.R. § 37.37(b).

7

The regulations generally require a hotel that offers transportation services to purchase

8 accessible vehicles or to provide equivalent transportation services to persons with disabilities.

9 See 49 C.F.R. §§ 37.101 & 37.171. Whether the hotel must purchase accessible vehicles, or

10 instead provide equivalent transportation services, depends upon the capacity of the vehicle and

11 whether the hotel operates a fixed route transportation system (i.e., providing transportation

12 between fixed locations such as an airport shuttle service) or a demand responsive system (i.e.,

13 providing transportation to any place a guest would like to go within a certain radius of the hotel).

14 The appendix to the regulations provides this helpful chart:

15

16

17

18

19

20

21

22

23

24

Section 37.105 sets forth the equivalent service standard and provides as follows:

[A] fixed route system or demand responsive system, when viewed in its entirety,

25

shall be deemed to provide equivalent service if the service available to

individuals with disabilities, including individuals who use wheelchairs, is

26

provided in the most integrated setting appropriate to the needs of the individual

27

and is equivalent to the service provided other individuals with respect to the following service characteristics:

28

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1

(a) (1) Schedules/headways (if the system is fixed route);

2

(2) Response time (if the system is demand responsive);

(b) Fares;

3

(c) Geographic area of service;

(d) Hours and days of service;

4

(e) Availability of information;

5

(f) Reservations capability (if the system is demand responsive); (g) Any constraints on capacity or service availability;

6

(h) Restrictions priorities based on trip purpose (if the system is demand

responsive).

7

8 49 C.F.R. § 37.105.

9

There are two important conclusions from these regulations. First, a hotel that offers

10 transportation services—whether fixed route1 or demand responsive—must, at a minimum,

11 provide equivalent transportation services in lift-equipped vehicles to people who use wheelchairs

12 or scooters. Second, equivalent really means equivalent. If a nondisabled person can decide on

13 the spur of the moment to take a hotel shuttle to a nearby attraction, and that shuttle is available

14 every 30 minutes, then a wheelchair-accessible shuttle must be available on equivalent notice to

15 people who use wheelchairs or scooters. Similarly, if a nondisabled person can board a hotel

16 airport shuttle, free of charge, without having to make any advance arrangements for that shuttle,

17 an accessible shuttle must be available without charge to persons with disabilities, and they must

18 not be required to arrange for the transportation themselves or to call in advance to schedule it.

19 II. Factual Background

20

A. Ashford

21

Ashford Hospitality Trust, Inc. (Ashford) is a publicly traded real estate investment trust

22 (REIT) that owns approximately 125 hotels, approximately 73 of which offer transportation

23 services to their guests and are thus subject to the ADA transportation requirements. Declaration

24 of Julia Campins in Support of Preliminary Approval of Class Action Settlement and Certification 25 of Settlement Class (Campins Decl.) Ex. 1 (Am. Resp. to Interrog. No. 1).2 These 73 Hotels are

26 spread among 20 states. Id. 1 The fixed route requirements kick in if the transportation system uses vehicles purchased or
27 leased after August 25, 1990, which is almost universally the case. 2 Although the Interrogatory Responses list 75 hotels, two of them are duplicates.
28

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1

Ashford tracks occupancy numbers for its hotels, calculated based on the number of

2 rooms per hotel and availability.3 The occupancy rates since January 1, 2013 at Ashford Hotels

3 are as follows:

4

•

2013: 6,628,187 room nights sold.

5

•

2014: 6,893,236 room nights sold.

6

•

2015: 5,292,435 room nights sold as mid-September.4

7 Id. (Am. Resp. to Interrog. No. 8).

8

As a real estate investment trust, Ashford is subject to various tax provisions, and one of

9 its primary defenses in this case concerns 26 U.S.C. § 856 and 26 C.F.R. § 1.856-4 (together the

10 “REIT tax provisions”), which condition favorable tax treatment of real estate investment trusts

11 on limitations on their ability to operate or manage hotels that they own. As a result, Ashford

12 contracts with third parties to manage its Hotels, and it has asserted that those management

13 companies are responsible for providing transportation services. Ashford thus asserts that it

14 “does not provide its management companies with any uniform policy or plan regarding the

15 operation of shuttle or transportation services at the hotels.” Supplemental Joint Case

16 Management Statement at 3, Dkt. No. 49.

17

B. Plaintiffs’ Investigation

18

Prior to filing this lawsuit, Plaintiff Civil Rights Education and Enforcement Center

19 (“CREEC”), and several of its members who have mobility disabilities and use wheelchairs,

20 called a number of Ashford Hotels to investigate whether there were ADA violations and to

21 confirm that the alleged violations of the ADA were widespread.5 Declaration of Marissa

22 McGarry (McGarry Decl.) ¶ 4. Plaintiff CREEC’s efforts to resolve the ADA violations before

23 3 These numbers do not precisely correlate with the number of guests that stayed at Ashford
24 hotels because, for example, some guests stay more than one night. They do, however, provide a rough approximation of the number of guests who have stayed at Ashford hotels over the last few
25 years. 4 This number assumes occupancy for the full year to date, although some of these hotels were
26 acquired during the course of the year, and thus the occupancy numbers for the time that these hotels were owned by Ashford would be less. But for purposes of numerosity, the key point here
27 is that millions of people stay at hotels owned by Ashford each year. 5 Plaintiff CREEC does not seek to represent a class or be designated as a class representative.
28

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1 filing suit were unsuccessful. First Am. Compl. ¶ 24, Dkt. No. 54. The complaint specifically

2 identified 15 Ashford Hotels allegedly in violation of the transportation requirements. Compl. ¶¶

3 14-21, Dkt. No. 1. On behalf of a class, Plaintiffs sought injunctive relief; Plaintiffs did not seek

4 damages on behalf of the class or the named plaintiffs.

5

The parties participated in early Court-mandated mediation at arms’ length through a

6 private mediator, retired Magistrate Judge James Larson of JAMS. An in-person mediation

7 session was held on July 1, 2015, and the parties continued to negotiate by phone and email for

8 several months afterwards. Campins Decl. ¶ 5.

9

Simultaneously, the parties have engaged in discovery, and Plaintiffs have conducted

10 further investigation regarding the remainder of the hotels in the Ashford portfolio that provide

11 transportation to guests. This investigation included review of a number of documents produced

12 by Ashford, such as brand policies relevant to transportation services, management agreements

13 and hotel accessibility policies. Id. ¶ 9. Plaintiffs called 68 Ashford hotels that provide

14 transportation services to investigate whether those Hotels also provided equivalent accessible

15 transportation services as required by the ADA.6 McGarry Decl. ¶ 5. Ashford also provided the

16 names of third party transportation providers on which some of its Hotels rely to provide

17 accessible transportation services. Plaintiffs called these third parties, and determined that many

18 of those third parties were not capable of providing equivalent accessible transportation services.

19 Id. ¶ 6. These calls confirmed for Plaintiffs the necessity for strong injunctive relief.

20

C. Negotiations and Settlement

21

From July through September, the parties engaged in a number of telephone calls and

22 email exchanges to negotiate the injunctive relief terms of the settlement. Campins Decl. ¶ 5. All

23 parties have been represented throughout these negotiations by counsel with substantial

24 experience in both disability rights and class action litigation. The parties reached full agreement

25 on the injunctive relief before negotiating attorneys’ fees and costs. Id. The parties reached full

26 6 Plaintiffs called every hotel identified by Ashford in Ashford’s initial responses to Plaintiffs’
27 interrogatories. Ashford supplemented these responses to add additional hotels after Plaintiffs had completed their calls.
28

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1 agreement on the injunctive relief before negotiating attorneys’ fees and costs. On September 29,

2 the parties executed a Memorandum of Understanding. The material terms of that Memorandum

3 have been memorialized in the longer-form Settlement Agreement—along with additional terms

4 necessary for formally submitting the Settlement for approval to the Court—and signed by all

5 parties and counsel on October 23, 2015.

6

ARGUMENT

7 I. The Proposed Class Should Be Certified

8

To certify the proposed class in this case, this Court must determine whether the Named

9 Plaintiffs have standing to assert injunctive claims, and whether the proposed class meets the

10 requirements of Rule 23. See, e.g., Armstrong v. Davis, 275 F.3d 849, 860, 868 (9th Cir. 2001).

11 As set forth below, both of these prerequisites are easily met here.

12

A. The Named Plaintiffs Have Standing to Seek Injunctive Relief.

13

To have standing to seek injunctive relief, a plaintiff must demonstrate that she has

14 suffered an injury in fact, and that she faces a “real and immediate threat of repeated injury” in

15 the future. Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011).

16

[A] plaintiff can demonstrate sufficient injury to pursue injunctive relief when

discriminatory architectural barriers deter him from returning to a noncompliant

17

accommodation. Just as a disabled individual who intends to return to a

18

noncompliant facility suffers an imminent injury from the facility’s ”existing or imminently threatened noncompliance with the ADA,” a plaintiff who is deterred

19

from patronizing a store suffers the ongoing “actual injury” of lack of access to

the store.

20 Id. at 950.

21 The Named Plaintiffs, Ann Cupolo Freeman and Julie Reiskin, have standing to pursue

22 injunctive relief: (1) they called Ashford Hotels and were told by the Hotels that although they do

23 provide inaccessible transportation, they do not provide equivalent accessible transportation;7 (2)

24 as a result, the Named Plaintiffs are deterred from patronizing those Hotels; and (3) they will

25

26 7 Once the named plaintiffs were told by the hotels that they do not provide accessible transportation, the plaintiffs were not required to make the futile gesture of actually staying at the
27 hotel and experiencing the lack of accessible transportation. See, e.g., Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136 (9th Cir. 2002).
28

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1 patronize the Hotels once the Hotels provide equivalent accessible transportation, and the

2 Plaintiffs are accurately informed of this when they contact the Hotels to inquire about equivalent

3 accessible transportation. First Am. Compl. ¶¶ 14-20. Under Chapman, the Named Plaintiffs

4 have standing to seek injunctive relief against Ashford.

5

Plaintiffs here called the Ashford Hotels at least in part as “testers,” i.e., people whose

6 purpose in attempting to patronize a defendant’s establishment is “to determine whether

7 defendant engaged in unlawful practices.” Tandy v. City of Wichita, 380 F.3d 1277, 1285 (10th

8 Cir. 2004) (holding that testers have standing under title II of the ADA). As such, their purpose

9 in calling Ashford Hotels was in part to determine whether those Hotels comply with ADA

10 transportation requirements. Under well-established law, plaintiffs who otherwise have standing

11 to seek injunctive relief under title III do not lose that standing because their motive in

12 patronizing a place of public accommodation is to test for compliance with title III.

13

Two federal appellate courts have addressed this issue, and both concluded, based on the

14 statutory language of title III, that testers do have standing under that statute. See Houston v.

15 Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013); Colo. Cross Disability Coal. v.

16 Abercrombie & Fitch Co., 765 F.3d 1205, 1211-12 (10th Cir. 2014).

17

Both courts relied on the language of the enforcement provision of title III, which

18 provides relief to “any person” who is being subjected to discrimination on the basis of disability,

19 as demonstrating that standing exists for anyone who has suffered an invasion of the legal interest

20 protected by title III “regardless of his or her motivation in encountering that invasion.” Colo.

21 Cross Disability Coalition, 765 F.3d at 1211; Houston, 733 F.3d at 1332.

22

In addition, Houston relied on 42 U.S.C. §§ 12182(a) and 12182(b)(2)(A)(iv), the

23 substantive statutory provision at issue there, and held that the “legal right created by [these

24 provisions] does not depend on the motive behind Plaintiff Houston’s attempt to enjoy the

25 facilities of the Presidente Supermarket. The text of §§ 12182(a) and 12182(b)(2)(A)(iv)

26 provides no basis for the suggestion that Plaintiff Houston’s motive is relevant to this legal right.”

27 733 F.3d at 1332.

28

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1

District courts in the Ninth Circuit and elsewhere have reached the same conclusion. See,

2 e.g., Molski v. Price, 224 F.R.D. 479, 484 (C.D. Cal. 2004) (holding that plaintiff whose motive

3 for visiting a service station was in part “to check on the station's ADA compliance” had standing

4 under title III); Molski v. Arby’s Huntington Beach, 359 F. Supp. 2d 938, 947-48 (C.D. Cal. 2005)

5 (same); Klaus v. Jonestown Bank & Trust Co. of Jonestown, PA, No. 1:12-CV-2488, 2013 WL

6 4079946, at *7 (M.D. Pa. Aug. 13, 2013) (“[N]umerous courts have rejected the notion that test

7 plaintiffs, or other serial litigants, forfeit their own standing to sue for discrimination in Title III

8 accessibility cases.”); Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 710 (W.D. Tex.

9 2010) (“Thus, a disabled tester who experiences the discrimination prohibited by the ADA has

10 standing to seek relief.”).

11

Although the Ninth Circuit itself has not yet directly addressed tester standing under title

12 III, two of its decisions on closely-related topics strongly suggest that it would join the Tenth and

13 Eleventh Circuits and find that testers have standing under title III.

14

First, the Ninth Circuit in Chapman held that courts must “take a broad view of

15 constitutional standing in civil rights cases, especially where, as under the ADA, private

16 enforcement suits ‘are the primary method of obtaining compliance with the Act.’” 631 F.3d at

17 946. Granting standing to testers is consistent with this approach.

18

Second, Smith v. Pacific Properties and Development Corp., 358 F.3d 1097 (9th Cir.

19 2004), considered whether disability testers have standing to seek injunctive relief under the Fair

20 Housing Act. In Smith, a nonprofit organization established a program to test whether multi-

21 family housing developments were in compliance with the FHA. Id. at 1099. One of the testers

22 used a wheelchair, and in his role as a tester, he identified several architectural barriers in

23 violation of the FHA, and the nonprofit organization subsequently brought suit against the

24 developer of the property. Id. The plaintiffs conceded that the tester did not have any interest in

25 actually purchasing or renting property. The developer moved to dismiss, arguing in part that the

26 tester lacked standing, and the district court granted that motion.

27

28

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1

On appeal, the Ninth Circuit reversed. The court began by noting that “[t]esters have

2 played a long and important role in fair housing enforcement . . .” Id. at 1102. It then examined

3 the language of the FHA, and held that it was sufficiently broad to provide standing to testers. Id.

4 at 1104.

5

The Ninth Circuit’s holding in Smith that disability testers have standing under the FHA

6 strongly indicates that it would join the Tenth and Eleventh Circuits and hold that disability

7 testers have standing under title III. This conclusion is bolstered by the analysis employed in

8 Smith, which was identical to the analysis applied by the courts in Houston and Colorado Cross

9 Disability Coalition. In all three cases, the courts’ analysis focused on the language of the

10 relevant statutes; significantly, the FHA language that caused the court in Smith to uphold tester

11 standing is virtually identical to the title III language on which Houston and Colorado Cross

12 Disability Coalition relied.

13

For example, the FHA enforcement provision at issue in Smith, like the enforcement

14 provision of title III, provided relief to “any person,” and the Ninth Circuit relied on that phrase to

15 find tester standing under the FHA. Smith, 358 F.3d at 1102. This strongly suggests that the

16 Ninth Circuit would reach the same conclusion when interpreting the identical language in the

17 title III enforcement provision.

18

Similarly, the Ninth Circuit in Smith analyzed the substantive FHA provision at issue in

19 that case to determine whether it included language indicating any intent to limit its protections

20 based on the motive of the plaintiff, and concluded that there was no such limitation, thus

21 supporting a finding of tester standing. Smith, 358 F.3d at 1103-04. Again, this mirrors the

22 analysis conducted by the Eleventh Circuit in Houston to find tester standing under title III.

23

For these reasons, the Named Plaintiffs in this case have standing as testers to seek

24 injunctive relief against Ashford.

25

B. The Proposed Class Meets Rule 23.

26

Named Plaintiffs seek certification of the following class for settlement purposes only:

27

All individuals with disabilities who use wheelchairs or scooters for mobility

28

who, from January 15, 2013 to the date of preliminary approval of the Settlement,

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1

have been denied the full and equal enjoyment of transportation services offered

to guests at Hotels owned and/or operated by Ashford because of the lack of

2

equivalent accessible transportation services at those Hotels.

3

Although Ashford does not oppose this motion, this Court still must determine that the

4 proposed class meets all of the requirements of Rule 23(a), at least one of the provisions of Rule

5 23(b), and Rule 23(g), which governs appointment of class counsel. See, e.g., Staton v. Boeing

6 Co., 327 F.3d 938, 952 (9th Cir. 2003). Here, Plaintiffs seek certification pursuant to Rule

7 23(b)(2). In addition, some courts have required that the class definition be precise, objective,

8 and presently ascertainable.8

9

Plaintiffs established below that the class is ascertainable and meets the requirements of

10 Rule 23. As an overview, however, the Ninth Circuit and numerous district courts in this Circuit

11 have certified classes of individuals with disabilities challenging alleged violations of the ADA.9

12 These include, for example:

13

• Armstrong v. Davis, 275 F.3d at 869-70, 879 (9th Cir. 2001) (affirming the

14

certification of a class of prisoners and parolees with sight, hearing, learning,

developmental, and mobility disabilities);

15

• Park v. Ralph’s Grocery Co., 254 F.R.D. 112 (C.D. Cal. 2008) (certifying class of

16

persons with mobility disabilities suing for alleged violations of architectural

17

accessibility requirements at a grocery store chain);

18

• Californians for Disability Rights, Inc. v. California Dep’t of Transp., 249 F.R.D.

334 (N.D. Cal. 2008) (certifying class of persons with mobility and/or vision

19

disabilities suing due to barriers along outdoor designated pedestrian walkways

throughout the state of California which are owned and/or maintained by the

20

California Department of Transportation);

21

• Nat’l Fed’n of the Blind v. Target Corp., 582 F. Supp. 2d 1185 (N.D. Cal. 2007)

22

(certifying class of persons with visual impairments suing for alleged violations of

accessibility requirements at online store);

23

24 8 See, e.g., O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998). A number of courts have held that the ascertainment requirement does not apply to class actions seeking only
25 injunctive relief under Rule 23(b)(2). See, e.g., Shelton v. Bledsoe, 775 F.3d 554, 563 (3d Cir. 2015) (“[A]scertainability is not a requirement for certification of a(b)(2) class seeking only
26 injunctive and declaratory relief . . . .”). The Ninth Circuit has not yet ruled on this issue. 9 Plaintiffs are not seeking certification concerning the California claims because those California
27 allegations are based on ADA violations, and the ADA provides Plaintiffs with the entire injunctive relief sought.
28

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1

• Moeller v. Taco Bell Corp., No. C 02-5849 PJH, 2012 WL 3070863, at *1 (N.D. Cal. July 26, 2012) (certifying for injunctive relief class of persons with mobility

2

disabilities suing for alleged violations of architectural accessibility requirements

at a fast food chain);

3

• Siddiqi v. Regents of the Univ. of Calif., No. C 99-0790 SI, 2000 WL 33190435, at

4

*11 (N.D. Cal. Sept. 6, 2000) (certifying classes of deaf and hard of hearing

5

students suing for alleged violations of federal law);

6

• Berlowitz v. Nob Hill Masonic Mgmt., Inc., No. C-96-01241 MHP, 1996 WL

724776, at *1, 5 (N.D. Cal. Dec. 6, 1996) (certifying class consisting of all persons

7

in California with physical disabilities suing for alleged violations of architectural

accessibility requirements at a concert arena); 8

• Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 460 (N.D. Cal.

9

1994), modified, 158 F.R.D. 439, 443, 460 (1994) (certifying a class of disabled

10

persons who used wheelchairs or who walked using aids suing for alleged

violations of architectural accessibility requirements of the ADA and the CDPA).

11

This case shares the relevant qualities with those cases such that it is equally appropriate

12 for class certification.

13

1. The Proposed Class Is Ascertainable.

14

In Rule 23(b)(2) class actions, “it is often the case that any relief obtained on behalf of the

15 class is injunctive and therefore does not require distribution to the class. Because ‘defendants are

16 legally obligated to comply [with any relief the court orders] . . . it is usually unnecessary to

17 define with precision the persons entitled to enforce compliance.’” Newberg on Class Actions §

18 3:7 (5th ed.) (citation omitted). Identification of individual class members is not required; to the

19 contrary, the fact that class members are difficult or impossible to identify individually supports

20 class certification under Rule 23(b)(2). See, e.g., Committee’s Notes to Rule 23(b)(2) (stating

21 that Rule 23(b)(2) is intended to address “various actions in the civil-rights field where a party is

22 charged with discriminating unlawfully against a class, usually one whose members are incapable

23 of specific enumeration.”).

24

Here, the class is clearly defined to identify the relevant time period (January 15, 2013

25 until the date of preliminary approval), the people who are included in the class (persons who use

26 wheelchairs or scooters for mobility), what those people must have experienced (denial of full

27 and equal enjoyment of transportation services because of the lack of equivalent accessible

28

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1 transportation services), and where those experiences must have occurred (at Hotels owned and/or

2 operated by Ashford). A number of courts have found any ascertainability requirement met by

3 similar class definitions. See, e.g., Nat’l Fed’n of the Blind v. Target Corp., No. C 06-01802

4 MHP, 2007 WL 1223755, at *4 (N.D. Cal. Apr. 25, 2007) (finding ascertain ability requirements

5 met by class defined as “All legally blind individuals in the United States who have attempted to

6 access Target.com and as a result have been denied access to the enjoyment of goods and services

7 offered in Target stores”).

8

2. The Proposed Class Meets the Requirements Of Rule 23(a).

9

Rule 23(a) establishes four prerequisites for class action litigation, which are: (1)

10 numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.

11

i. The proposed class satisfies the numerosity requirement.

12

Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is

13 impracticable.” Several factors are relevant to the court’s determination that the joinder of all the

14 members is impracticable, including the size of the class, location of class members, difficulty in

15 identifying those class members, and size of each class member’s claim. See 7A Fed. Prac. & 16 Proc. Civ. § 1762 (3d ed.). In analyzing these factors, a court may make common sense 17 assumptions and reasonable inferences. See, e.g., Californians for Disability Rights, 249 F.R.D.

18 at 347; Colo. Cross Disability Coal., 765 F.3d at 1215. Finally, “the numerosity requirement is

19 relaxed” where, as here, the class seeks only injunctive relief. Arnott v. U.S. Citizenship &

20 Immig. Servs., 290 F.R.D. 579, 586 (C.D. Cal. 2012) (citing Sueoka v. United States, 101 Fed.

21 Appx. 649, 653 (9th Cir. 2004)).

22

The class is numerous. Numerosity does not require a plaintiff to establish the exact

23 number of persons in the class. Bates v. United Parcel Serv., 204 F.R.D. 440, 444 (N.D. Cal.

24 2001) (citing Arnold, 158 F.R.D. at 448). A class or subclass with more than 40 members “raises

25 a presumption of impracticability [of joinder] based on numbers alone.” Hernandez v. Cnty. of 26 Monterey, 305 F.R.D. 132, 152-53 (N.D. Cal. 2015). Courts “regularly rely on” census data in 27 making numerosity determinations. Californians for Disability Rights, 249 F.R.D. at 347; see

28 also Arnold, 158 F.R.D. at 448.
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1

Here, there are a large number of facilities covered by the class (73 hotels) at which

2 millions of persons have stayed during the class period (approximately 18 million room nights

3 sold since January 1, 2013). In addition, census figures demonstrate that more than 3.6 million

4 people use wheelchairs for mobility in the United States. McGarry Decl. Ex. 1 (July 2012 U.S.

5 Census Bureau report on Americans with disabilities). If just 15 of those 3.6 million wheelchair

6 users each year stayed at, or were deterred from staying at, one of the Ashford Hotels at issue

7 since 2013, the numerosity requirement is met. As a matter of common sense, joinder is

8 impracticable based on the size of the class alone. Nevertheless there are a number of other

9 factors establishing numerosity.

10

The class is geographically dispersed. Joinder may be impracticable where a class is

11 geographically dispersed. See, e.g., Evans v. Linden Research, Inc., No. C 11-01078 DMR, 2012

12 WL 5877579, at *10 (N.D. Cal. Nov. 20, 2012). Here, the proposed class is geographically

13 dispersed, covering Hotels in 20 states.

14

Class members are difficult or impossible to identify. The fact that members of the

15 proposed class are difficult to identify individually supports a finding that joinder is

16 impracticable. See id.; see also Park, 254 F.R.D. at 120.

17

For these reasons, the proposed class meets the numerosity requirement.

18

ii. The proposed class satisfies the commonality requirement.

19

Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” This

20 requirement is “construed permissively,” and “[a]ll questions of fact and law need not be common

21 to satisfy the rule.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). “Even a

22 single common question will do,” as long as it is “of such a nature that it is capable of classwide

23 resolution—which means that determination of its truth or falsity will resolve an issue that is

24 central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes,

25 131 S. Ct. 2541, 2551, 2556 (2011) (internal quotation marks omitted). Thus, “[w]here the

26 circumstances of each particular class member vary but retain a common core of factual or legal

27

28
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1 issues with the rest of the class, commonality exists.” Evon v. Law Offices of Sidney Mickell, 688

2 F.3d 1015, 1029 (9th Cir. 2012).

3

Commonality exists where a defendant allegedly failed to have in place practices or

4 policies required by law. See, e.g., Parsons v. Ryan, 754 F.3d 657, 664, 678 (9th Cir. 2014)

5 (affirming certification of a class based on common questions that included the defendant’s

6 alleged failure to provide medication, treatment, and other medical care to prisoners).

7

Here, there are a number of issues central to each class member’s claim that can be

8 resolved on a classwide basis, most notably concerning the impact, if any, of 26 U.S.C. § 856 and

9 26 C.F.R. § 1.856-4—the REIT tax provisions—on Defendant’s obligations under the ADA. As

10 set forth above, the REIT tax provisions place limitations on the ability of a real estate investment

11 trust to operate hotels that it owns and still receive favorable tax status. These provisions raise a

12 number of questions common to every class member, including:

13

• Do these provisions actually cause a real estate investment trust to lose its

14

favorable tax status simply by modifying its hotel practices and procedures to

15

comply with the ADA?

16

• If so, is this a defense to claims brought under the ADA?

17

• Even if these provisions are interpreted to prevent a real estate investment trust

18

from modifying its hotel practices and procedures while still maintaining its tax

19

status, is there other relief that this Court can order to ensure compliance with

20

accessible transportation regulations that do not put the tax status at risk, such as,

21

for example, requiring Defendant to purchase wheelchair accessible vans for its

22

Hotels?

23

These types of issues establish commonality. See, e.g., Newberg on Class Actions § 3:27

24 (5th ed.) (“A claim that the opposing party ‘has acted or refused to act on grounds that apply

25 generally to the class’ necessarily presents a common question of fact; similarly, a claim that

26 injunctive or declaratory relief is appropriate for the class as a whole presents a common question

27 of law.”).

28
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1

Finally, the fact that individual class members may have experienced alleged violations in

2 different ways—some may have been told that no accessible transportation is provided, others

3 may have had to wait longer for accessible transportation than nondisabled guests wait, and/or

4 some class members may have been told that they must pay for accessible transportation whereas

5 the hotel provides inaccessible transportation at no cost—does not defeat commonality where, as

6 here, Plaintiffs allege a systemwide practice of discrimination. See, e.g., Armstrong, 275 F.3d at

7 868 (Rejecting argument that “a wide variation in the nature of the particular class members'

8 disabilities precludes a finding of commonality,” and holding that “commonality is satisfied

9 where the lawsuit challenges a system-wide practice or policy that affects all of the putative class

10 members.”); Marilley v. Bonham, No. C-11-02418-DMR, 2012 WL 851182, at *4 (N.D. Cal.

11 Mar. 13, 2012) (“Neither factual differences between the proposed class members nor the

12 plurality of implicated statutes defeats commonality where class members share such a common

13 question.”); Shields v. Walt Disney Parks and Resorts US, Inc., No. CV 10-05810 DMG (JEMx),

14 2011 WL 7416335, at *25 (C.D. Cal. June 29, 2011) (holding that the variety of communication

15 preferences among the visually impaired class members did not defeat class certification because

16 “[a]n injunction applicable to all class members could include multiple remedial measures to

17 remedy the violation of a common right.”); Lane v. Kitzhaber, 283 F.R.D. 587, 598 (D. Or. 2012)

18 (“As in other cases certifying class actions under the ADA and Rehabilitation Act, commonality

19 exists even where class members are not identically situated.”).

20

iii. The claims of the named plaintiffs satisfy the typicality requirement.

21

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical

22 of the claims or defenses of the class.” The purpose of the requirement “is to assure that the

23 interest of the named representative aligns with the interests of the class. Typicality is satisfied

24 when each class member’s claim arises from the same course of events, and each class member

25 makes similar legal arguments to prove the defendant’s liability.” Covillo v. Specialtys Cafe, No.

26 C-11-00594 DMR, 2013 WL 5781574, at *6 (N.D. Cal. Oct. 25, 2013) (citations and internal

27 quotation marks omitted).

28
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1

Numerous courts have held that the typicality requirement is met in cases like this one

2 involving alleged violations of title III of the ADA. See, e.g., Arnold, 158 F.R.D. at 450; Park,

3 254 F.R.D. at 121.

4

The Named Plaintiffs’ claims, like those of members of the class, all arise from the same

5 course of events—Defendant’s failure to provide equivalent accessible transportation. Likewise,

6 the Named Plaintiffs’ claims, like those of the members of the class, rest on identical legal

7 theories and arguments. Thus the typicality requirement is met.

8

iv. The proposed representatives meet the adequate representation

requirement.

9

The final requirement of Rule 23(a), adequate representation, requires that the proposed

10 representatives do not have conflicts of interest with the proposed class. Fed. R. Civ. P. 23(a)(4);

11 Bates, 204 F.R.D. at 447; Newberg on Class Actions § 3.58 (5th ed.) (“All that is required [to

12 fulfill the adequate representation requirement] – as the phrase ‘absence of conflict’ suggest – is

13 sufficient similarity of interest such that there is no affirmative antagonism between the

14 representative and the class.”).

15 Neither Named Plaintiffs nor their counsel has conflicts of interest with the proposed

16 class. Both Named Plaintiffs are members of the class that they seek to represent and both seek to

17 remedy alleged violations of the ADA. They also seek the same relief as the class:

18 comprehensive injunctive relief that ensures Ashford’s compliance with the law. Neither Named

19 Plaintiff seeks any monetary damages.

20 v. The proposed class counsel meet the requirements of Rule 23(g).
21 In addition, class counsel meet the requirements of Rule 23(g), which requires the Court

22 to appoint class counsel based on the following factors: (i) the work counsel has done in

23 identifying or investigating potential claims in the action; (ii) counsel’s experience in handling

24 class actions, other complex litigation, and the types of claims asserted in the action; (iii)

25 counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to

26 representing the class. These factors weigh decisively towards appointing the proposed class

27 counsel in this case.

28

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1

Attached are declarations demonstrating the adequacy of the proposed class counsel in

2 this case: Tim Fox, Sarah Morris, Bill Lann Lee, Julie Wilensky, Julia Campins, Hillary Benham-

3 Baker, and Kevin Williams. Together these attorneys have litigated dozens of class actions,

4 including numerous class actions under the ADA and other disability rights statutes. The

5 attorneys and their firms and organizations have been appointed as class counsel, having been

6 found by the relevant courts to meet the adequate representation requirements under Rule 23.

7

Counsel are thoroughly familiar with the ADA, having litigated not only class actions

8 under that statute, but also numerous individual cases as well. They have thoroughly investigated

9 this case, calling nearly every Ashford hotel that provides transportation to its guests, calling third

10 parties that Ashford relies on to provide accessible transportation, and reviewing documents

11 provided by Ashford during the mediation process. They have the resources to litigate this case,

12 as demonstrated by the settlement achieved in this case, which provides a substantial and

13 important injunctive relief to the class. If this settlement is not approved, class counsel have the

14 resources to continue to litigate this case vigorously on behalf of the proposed class.

15

3. The Proposed Class Satisfies Rule 23(b)(2).

16

Certification under Rule 23(b)(2) is proper where “the party opposing the class has acted

17 or refused to act on grounds that apply generally to the class, so that final injunctive relief or

18 corresponding declaratory relief is appropriate respecting the class as a whole.” The Supreme

19 Court in Wal-Mart recognized that “‘[c]ivil rights cases against parties charged with unlawful,

20 class-based discrimination are prime examples’ of what (b)(2) is meant to capture.” 131 S. Ct. at

21 2557 (citation omitted). Rule 23(b)(2) is satisfied where “‘class members complain of a pattern

22 or practice that is generally applicable to the class as a whole.’” Rodriguez v. Hayes, 591 F.3d

23 1105, 1125 (9th Cir. 2010) (quoting Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)).

24

Numerous courts have certified classes under Rule 23(b)(2) alleging violations of title III.

25 See, e.g., Shields, 279 F.R.D. at 557-60; Colo. Cross Disability Coal., 765 F.3d at 1217.

26

Here, Plaintiffs allege that Ashford has a practice of not providing equivalent accessible

27 transportation services at Hotels it owns that generally provide transportation services to guests,

28
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1 and plaintiffs seek only injunctive and declaratory relief. Because this civil rights case involves

2 allegations that Ashford “has acted or refused to act on grounds that apply generally to the class,

3 so that final injunctive relief or corresponding declaratory relief” is appropriate for the class as a

4 whole, the class meets the requirements of Rule 23(b)(2).

5 II. The Proposed Settlement Should Be Preliminarily Approved

6

The terms of the Proposed Settlement Agreement are set forth in the Settlement

7 Agreement, a copy of which is attached as Exhibit A to the Proposed Preliminary Approval

8 Order. The following summarizes the principal terms of the Settlement:

9

A. Injunctive Relief

10

Plaintiffs and Ashford have negotiated a comprehensive scheme for injunctive relief.10

11 The injunctive relief of the Settlement Agreement requires all Ashford Hotels to come into

12 compliance with the regulations described above. The Settlement Agreement sets forth what

13 compliance means, with specific attention to ensuring that any third-party transportation

14 providers utilized by Ashford Hotels to provide equivalent accessible transportation truly do

15 provide such equivalent accessible transportation. Settlement Agreement ¶ 5.a. Moreover, the

16 Settlement Agreement explicitly requires that accurate information be provided to potential hotel

17 guests, so that no guests are erroneously deterred. Id. ¶ 5.c. Ashford will provide information to

18 Plaintiffs regarding the current status of the Hotels that provide transportation services to their

19 guests, as well as any applicable third party transportation providers. Id. ¶ 4. Finally, Ashford

20 will notify all management companies—the companies that directly manage Ashford’s Hotels—

21 about the Settlement Agreement and the management companies’ obligations under the law, as

22 well as any hotel’s non-compliance with either. Id. ¶ 6.

23

To ensure that Ashford Hotels come into compliance, the Settlement provides a multistage

24 monitoring process that involves both a third-party monitor and monitoring by Plaintiffs’

25 Counsel. First, the third-party monitor will contact 50% of Ashford Hotels that provide

26 10 The Complaint sought only injunctive relief and attorneys’ fees and costs. The Settlement Agreement does not provide for any damages, and only releases individual damages claims for
27 the individual named plaintiffs through the date of preliminary approval. The proposed recovery to the class is in all other requests identical to the recovery to the individual named plaintiffs.
28

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1 transportation services to guests every four months for the first two years of the Settlement

2 Agreement’s term to test their compliance. Id. ¶ 7.b. Subsequent monitoring cycles will also

3 include Hotels that failed to provide accurate information or equivalent accessible services during

4 the previous cycle. Id. ¶ 7.c. This stepped-up monitoring ensures that problem Hotels are closely

5 monitored. Second, the monitor will send a tester to 15% of the Hotels who, during those

6 telephone conversations, claim to have equivalent accessible transportation to confirm that the

7 Hotel does indeed provide equivalent, accessible transportation. Id. ¶ 7.b. Finally, any hotel that

8 is found to be out of compliance during the first two years of monitoring will be subjected to a

9 third year of monitoring unless it can prove that it has purchased its own accessible transportation

10 vehicle. Id. ¶ 7.d. Hotels whose non-compliance is confined to inaccurate information will be

11 subjected to the third year of monitoring only if they were found to be out of compliance a second

12 time. Id. ¶ 7.d. This comprehensive monitoring program is thorough and addresses the issues

13 that Plaintiffs have uncovered during their investigation.

14

Ashford will continue to provide information to the Plaintiffs throughout this process. Id.

15 ¶ 7.e. Additionally, Ashford will provide notices to the hotel managers of their hotels’ non-

16 compliance. After three instances of non-compliance, Ashford has committed to either

17 discontinuing transportation services at that particular hotel or purchasing a wheelchair-accessible

18 vehicle for use at that hotel. Id. ¶ 8.c. This final part of the monitoring and compliance process

19 closes the loop so that all hotels should be in full compliance with the ADA by the end of the

20 third year of the Settlement Agreement, if not long before.11

21

The parties have mutually agreed upon Progressive Management Resources, Inc. (PMR)

22 as the third-party monitor. PMR is a firm with substantial experience in compliance and

23 monitoring with respect to public accommodations. Campins Decl. Ex. 2 (PMR website).

24 Ashford will pay the fees and costs of monitoring.12

25 11 Ashford will also request that future management agreements between Ashford and the hotel management companies include explicit requirements to comply with the accessible
26 transportation requirements under the ADA. Settlement ¶ 8.d. 12 To the extent that those fees and costs include fees and costs incurred by Plaintiffs’ counsel,
27 they are subsumed into Plaintiffs’ forthcoming attorneys’ fees request, as explained in Section II.C.
28

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1

Plaintiffs’ Counsel will also be involved in monitoring. Settlement Agreement ¶ 7.b.i.

2 They will do so through any members of the class that visit Ashford hotels as well as through

3 monitoring by Plaintiffs’ Counsel of the third-party transportation providers that hotels use to

4 provide transportation to disabled guests to ensure that the services provided by the third parties

5 are actually equivalent to the services provided to guests without disabilities. In addition,

6 Plaintiffs’ Counsel will review monitoring reports by PMR, and raise issues as needed with

7 Ashford.

8

Finally, the parties have also agreed to a multi-stage dispute resolution process in which

9 disputes that the parties cannot resolve themselves will be brought to a mediator, and if the

10 disputes cannot be resolved in mediation, they can be brought to the Court for resolution during

11 the term of the Settlement Agreement. See Settlement Agreement ¶ 14.

12

B. Class Release

13

The Settlement Agreement does not release any claims on behalf of class members for

14 damages. Nor does it release any claims against any potential defendants who could have been

15 sued in this litigation other than Ashford. See id. ¶ 15.

16

C. Attorneys’ Fees and Costs and Costs of Administration and Monitoring of the

17

Settlement

18

The parties have agreed that Class Counsel may seek an award of attorneys’ fees and costs

19 that have been or will be incurred in litigation, seeking final approval, and future monitoring

20 during the term of the settlement in the amount of $165,000 and that Ashford will not oppose

21 such request. Should the Court preliminarily approve the proposed Settlement Agreement,

22 Plaintiffs intend to apply for such an award before their application for final approval of the

23 Settlement and sufficiently in advance of the class members’ deadline to object to the proposed

24 Settlement. This amount explicitly includes and covers monitoring of the settlement, which will

25 involve review of the agreed-upon monitor’s reports as well as independent monitoring of the

26 third-party providers of transportation for those hotels that do not have accessible vans. Plaintiffs

27 currently estimate that the fees associated with this future monitoring for the three-year term of

28
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1 the Agreement constitute approximately $30,000 of the $165,000 total requested fee award.

2 Campins Decl. ¶ 6.

3

D. The Proposed Settlement Merits Preliminary Approval.

4

Rule 23(e) requires a district court to determine whether a proposed class action

5 settlement is “fundamentally fair, adequate, and reasonable.” Staton v. Boeing Co., 327 F.3d 938,

6 959 (9th Cir. 2003). At final approval, this involves an analysis of a number of different factors.

7 See, e.g., id. Preliminary approval is an initial assessment of the fairness of the proposed

8 settlement made by a court on the basis of written submissions and presentations from the settling

9 parties.

10

Preliminary approval of a settlement and notice to the proposed class is appropriate: “[i]f

11 [1] the proposed settlement appears to be the product of serious, informed, non-collusive

12 negotiations, [2] has no obvious deficiencies, [3] does not improperly grant preferential treatment

13 to class representatives or segments of the class, and [4] falls with the range of possible

14 approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (citing

15 Manual for Complex Litigation, Second § 30.44 (1985)). “In addition, ‘[t]he court may find that

16 the settlement proposal contains some merit, is within the range of reasonableness required for a

17 settlement offer, or is presumptively valid.’” Id. (citing Newberg on Class Actions § 11.25

18 (1992)).

19

Here, the proposed Settlement satisfies the preliminary approval requirements. Plaintiffs’

20 Counsel believe that the proposed Settlement is an excellent result, reached after thorough

21 investigation and extensive negotiations and with assistance of a JAMS mediator who is a retired

22 federal Magistrate Judge. Campins Decl. ¶¶ 5, 7. No class representatives or segments of the

23 class are receiving any preferential treatment.

24

1. Injunctive Relief

25

The Settlement will provide substantial injunctive relief to the Class. By means of this

26 Settlement Agreement, all Ashford hotels that provide transportation services to guests will

27 provide either a wheelchair-accessible vehicle or truly equivalent accessible transportation. The

28
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1 hotels will be held accountable through a monitoring process that ensures that each hotel is

2 monitored at least three times, and the monitoring will increase if any hotel is found out of

3 compliance at any time during the term of the Agreement. The monitoring consists both of calls

4 to the hotels to verify that they are providing the required services and that they are providing

5 accurate information with respect to those services, and in-person visits to a random selection of

6 the hotels that purport to provide equivalent accessible transportation through a third-party

7 transportation provider. After three infractions by a particular hotel, Ashford has committed to

8 either discontinue all transportation services at the hotel, or to purchasing an accessible vehicle

9 for use at that hotel so that there can be no further difficulties in providing equivalent accessible

10 transportation through a third-party transportation provider.

11

2. The Provision for Attorneys’ Fees and Costs Is Fair.

12

The parties have agreed, subject to this Court’s approval, to an award of fees and costs

13 totaling $165,000. Settlement Agreement ¶ 11. In litigating this matter, Plaintiffs’ Counsel have

14 taken substantial risk and aggressively investigated a problem involving widespread ADA

15 noncompliance that has never been litigated before. To Plaintiffs’ knowledge, this Settlement

16 Agreement is the first of its kind in the nation and sets the standard for hotel transportation for

17 guests with disabilities. Campins Decl. ¶ 7. The fees agreed to, $165,000, is expected to be at or

18 below Plaintiffs’ Counsel’s lodestar at the conclusion of the three years of the settlement term.

19 Plaintiffs’ Counsel have expended substantial time to date, and will be involved in monitoring

20 during the settlement term for which Ashford has agreed to pay attorneys’ fees. Such subsequent

21 monitoring by Plaintiffs’ Counsel is appropriate, as is compensation for this work. See, e.g.,

22 Balla v. Idaho, 677 F.3d 910, 918 (9th Cir. 2012) (holding that injunction monitoring is often

23 necessary and fees are appropriate); see also Pennsylvania v. Delaware Valley Citizens’ Council

24 for Clean Air, 478 U.S. 546, 558-59 (1986) (holding that plaintiffs’ counsel’s post-judgment

25 monitoring “was as necessary to the attainment of adequate relief for their client as was all of

26 their earlier work in the courtroom which secured Delaware Valley's initial success in obtaining

27

28
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1 the consent decree.”). Plaintiffs’ Counsel will support their fee request with more detail in the

2 motion for attorneys’ fees and costs.

3

E. The Proposed Form of Notice and Notice Plan Satisfy Due Process and Should Be

Approved. 4

5

Under Federal Rule of Civil Procedure 23(e)(1), the court “must direct notice in a

6 reasonable manner to all class members who would be bound by a propos[ed settlement].” Class

7 members are entitled to receive “the best notice practicable” under the circumstances. Burns v.

8 Elrod, 757 F.2d 151, 154 (7th Cir. 1985) (citing Fed. R. Civ. P. 23(c)(2)). Notice is satisfactory

9 “if it generally describes the terms of the settlement in sufficient detail to alert those with adverse

10 viewpoints to investigate and to come forward and be heard.” Churchill Vill., L.L.C. v. Gen. 11 Elec., 361 F.3d 566, 575 (9th Cir. 2004) (internal citation and quotation marks omitted). “The 12 hallmark of the notice inquiry . . . is reasonableness.” Lucas v. Kmart Corp., 234 F.R.D. 688, 696 13 (D. Colo. 2006) (citing Sollenbarger v. Mountain States Telephone & Telegraph Co., 121 F.R.D.

14 417, 436 (D.N.M. 1988)); see also, e.g., Tulsa Professional Collection Services, Inc. v. Pope, 485

15 U.S. 478 (1988).

16

The notice standard is easily satisfied here. The parties propose dissemination of notice

17 through known disability advocacy groups, which is the most reasonable manner to ensure that

18 class members receive word of the settlement. This is not a case like many other class actions

19 where there is a list of shareholders of a company, employees, or purchasers of a product that can

20 be obtained through reasonable efforts. To the contrary, the Settling Parties are not aware of any 21 available list of individuals who use wheelchairs or scooters and patronize Ashford hotels. Nor 22 do the Settling Parties believe that one could be created without months of effort and huge 23 expenditure. Under such circumstances, individual notice is not required. Lucas, 234 F.R.D. at

24 696 (citing Sollenbarger, 121 F.R.D. at 437 (publication notice sufficient to subgroup of class

25 when efforts required for creating list of individuals would be excessive under the circumstances). 26 Compare Fed. R. Civ. P. 23(c)(2)(B) (regarding individual notice for classes certified under Rule 27 23(b)(3)) to Fed. R. Civ. P. 23(c)(2)(A) and 23(e)(1) (discussing “reasonable” and “appropriate” 28 notice).

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1

The proposed notice describes the Settlement Class, summarizes the proposed settlement,

2 and explains to class members their right to object and be heard in open court. Ex. B.

3

Notice Plan: Plaintiffs here propose to email notice to disability-related organizations

4 throughout the country. In addition, Plaintiffs will provide the notice to those persons with

5 disabilities who have contacted CREEC about problems with accessible hotel transportation.

6

Notice Deadline: Plaintiffs request that the Court order notice to be issued not more than

7 10 days after preliminary approval of the Settlement (“Notice Deadline”).

8

Deadline to file Motion for Attorneys’ Fees: Forty-five days after the Notice Deadline.

9

Deadline to submit Objections to the Settlement: Sixty days after the Notice Deadline.

10

Final Approval hearing: March 10, 2016, or eighty days after the Notice Deadline set

11 by the Court, whichever is later, or as soon thereafter as the Court may set the hearing.

12

CONCLUSION

13

For the reasons above, the parties respectfully request that the Court grant the Proposed

14 Preliminary Approval Order filed concurrently.

15

16 Dated: November 5, 2015

Respectfully Submitted,

17

By: /s/Julia Campins

18

Julia Campins

19

Hillary Benham-Baker CAMPINS BENHAM-BAKER, LLP

20

935 Moraga Road, Suite 200 Lafayette, CA 94549

21

(415) 373-5333 julia@cbbllp.com

22

hillary@cbbllp.com

23 24 25 26 27 28
MOT. FOR PRELIM. APPROVAL & CERT. OF SETTLEMENT CLASS

Timothy P. Fox – Cal. Bar No. 157750 Sarah M. Morris, Pro Hac Vice CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, CO 80203 (303) 757-7901 tfox@creeclaw.org smorris@creeclaw.org

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MOT. FOR PRELIM. APPROVAL & CERT. OF SETTLEMENT CLASS

Bill Lann Lee – Cal Bar. No. 108452 Julie Wilensky – Cal. Bar No. 271765 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 2120 University Ave. Berkeley, CA 94704 (510) 431-8484 blee@creeclaw.org jwilensky@creeclaw.org
Kevin W. Williams, Pro Hac Vice COLORADO CROSS-DISABILITY COALITION 655 Broadway #775 Denver, CO 80203 (303) 839-1775 kwilliams@ccdconline.org
Attorneys for Plaintiffs and the Proposed Class

- 25 -

CASE NO. 4:15-CV-00216-DMR

 
 Case 4:15-cv-00216-DMR Document 70 Filed 11/18/15 Page 1 of 1

1 NOLAN S. ARMSTRONG (State Bar No.241311)
MCNAMARA,NEY,BEATTY,SLATTERY,
2 BORGES & AMBACHER LLP 1211 Newell Avenue
3 Walnut Creek,CA 94596 Telephone:(925)939-5330
4 Facsimile: (925)939-0203 nolan.armstronga,mcnamara.com
5 Attorneys for Defendant
6 ASHFORD HOSPITALITY TRUST,1NC.

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11

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22

THE CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER,on behalfof itself, and ANN CUPOLO-FREEMAN and JULIE REISKIN,on behalfofthemselves and a proposed class of similarly situated persons defined below,
Plaintiffs,
vs.
ASHFORD HOSPITALITY TRUST INC.,
Defendant.

Case No.4:15-CV-00216-DMR
STATEMENT OF NON-OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS

Defendant Ashford Hospitality Trust, Inc. hereby does not oppose the Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class filed by plaintiffs in the above-captioned matter.

23 Dated: November 17,2015 24

McNaMaxA,NEY,BEATTY,SLaTTEUY,
BORGES & AMBACHER LLP

25 By: ~`ti

26

Nolan S. Armstrong

Attorneys for Defendant

27

ASHFORD HOSPITALITY TRUST,INC.

28

STATEMENT OF NON-OPPOSITION TO PLAINTIFFS'

MOTION FOR PRELIMINARY APPROVAL OF CLASS

ACTION SE'T'TLEMENT AND CERTIFICATION OF

SETTLEMENT CLASS

Case No.4:15-CV-00216-DMR

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6 CIVIL RIGHTS EDUCATION AND
7 ENFORCEMENT CENTER, et al.,

8

Plaintiffs,

9

v.

10 ASHFORD HOSPITALITY TRUST, INC.,

11

Defendant.

Case No. 15-cv-00216-DMR
ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Re: Dkt. No. 66

12

Plaintiffs Civil Rights Education and Enforcement Center (“CREEC”), Ann Cupolo-

United States District Court Northern District of California

13 Freeman, and Julie Reiskin move for preliminary approval of a class action settlement. [Docket

14 No. 66.] Defendant Ashford Hospitality Trust, Inc. (“Ashford”) does not oppose the motion.

15 [Docket No. 70.] The court conducted a hearing on December 10, 2015. For the following 16 reasons, the court grants preliminary approval of the proposed class settlement.

17 I. BACKGROUND

18

A. Litigation History

19

In this class action, Plaintiffs seek declaratory and injunctive relief for alleged violations of

20 the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et seq., and California’s Unruh

21 Civil Rights Act, California Civil Code section 51, regarding the provision of wheelchair-

22 accessible transportation by hotels. Plaintiff CREEC is a civil rights organization based in

23 Denver, Colorado that is dedicated to ensuring that “persons with disabilities participate in our

24 nation’s civic life without discrimination.” [Docket No. 54 (Am. Compl.) ¶ 9.] Plaintiffs Cupolo-

25 Freeman and Reiskin, who are CREEC members, each have disabilities within the meaning of the

26 ADA and California law. Both use wheelchairs for mobility. Defendant Ashford is a publicly-

27 traded real estate investment trust that owns approximately 125 hotels, 73 of which offer

28 transportation services to their guests and are therefore subject to ADA transportation

1 requirements. These 73 hotels are spread among 20 states.

2

Plaintiffs assert that the ADA regulations require any Ashford hotel that offers

3 transportation services to purchase accessible vehicles or to provide equivalent transportation

4 services to persons with disabilities. See 49 C.F.R. §§ 37.101, 37.171. Whether the hotel must

5 purchase accessible vehicles, or instead provide equivalent transportation services, depends upon

6 the capacity of the vehicle (over 16 persons, or 16 persons or less) and whether the hotel operates

7 a fixed route transportation system, or a demand-responsive system. The lowest requirement (in

8 this case, for hotels with demand responsive systems using a vehicle with capacity for 16 persons

9 or less) is that the hotel provide equivalent transportation services if they do not own an accessible

10 vehicle.

11

In their amended complaint, Plaintiffs allege two claims against Ashford: 1) disability

United States District Court Northern District of California

12 discrimination under the ADA, 42 U.S.C. § 12182(a), for failing to ensure that transportation

13 vehicles in use at its hotels are readily accessible to and usable by individuals with disabilities; and

14 2) violation of California Civil Code section 51(b) for denying Plaintiffs and the class members’

15 rights to full and equal accommodations, advantages, facilities, privileges, or services offered at

16 Ashford’s hotels. Plaintiffs seek declaratory relief and a permanent injunction requiring Ashford

17 to comply with the ADA and the Unruh Act, as well as an award of reasonable attorneys’ fees and

18 costs. Plaintiffs do not seek damages on behalf of the class or the named plaintiffs.

19

B. Discovery and Mediation

20

The parties conducted an in-person mediation session in July 2015 before retired

21 Magistrate Judge James Larson. They continued to negotiate by telephone and email after that

22 session, and simultaneously engaged in discovery and investigation. Plaintiffs contacted 68 of the

23 73 Ashford hotels that provide transportation services to investigate whether those hotels provide

24 equivalent accessible transportation services. Plaintiffs also called third party transportation

25 providers identified by Ashford to determine whether they were capable of providing equivalent

26 accessible transportation services.

27

Following continued negotiations, the parties agreed to settle this matter in September

28 2015, and executed a settlement agreement on October 23, 2015. Plaintiffs filed an unopposed 2

1 motion for preliminary approval of the settlement agreement on November 5, 2015. The court

2 held a hearing on the motion on December 10, 2015.

3

C. The Settlement Agreement

4

The complete terms of the proposed settlement agreement are set forth in the Joint

5 Stipulation and Settlement Agreement, which is attached as Exhibit A to Plaintiffs’ motion. Pls.’

6 Mot. Ex. A (Settlement Agreement).

7

1. Injunctive Relief

8

The Settlement Agreement provides a comprehensive scheme for injunctive relief,

9 requiring all Ashford-owned and/or operated hotels to come into compliance with ADA

10 regulations that require hotels that offer transportation services to provide equivalent

11 transportation services to people who use wheelchairs or scooters. The Settlement Agreement sets

United States District Court Northern District of California

12 forth what “compliance” means, with specific attention to ensuring that any third party

13 transportation providers utilized by Ashford hotels provide equivalent accessible transportation.

14 Settlement Agreement ¶ 5. The Settlement Agreement explicitly requires that Ashford hotels

15 provide accurate information to potential hotel guests so that no guests are erroneously deterred.

16 Id. ¶ 5.c. Ashford will provide information to Plaintiffs regarding the current status of the hotels

17 that provide transportation services to their guests, as well as any applicable third party

18 transportation providers. Id. ¶ 4. Finally, Ashford will notify all companies that directly manage

19 Ashford’s hotels about the Settlement Agreement and the management companies’ obligations

20 under the law, as well as any hotel’s non-compliance with either. Id. ¶ 6.

21

To ensure that Ashford hotels come into compliance, the Settlement Agreement sets forth a

22 multistage, three-year monitoring process that involves both a third-party monitor and monitoring

23 by Plaintiffs’ counsel. Id. ¶ 7. Ashford will continue to provide information to Plaintiffs

24 throughout the monitoring process, and the monitoring and compliance process is designed to

25 ensure that all hotels are in full compliance with the ADA by the end of the third year of the

26 Settlement Agreement. Id. ¶¶ 7, 8. The parties have mutually selected a third-party monitor,

27 Progressive Management Resources, Inc. (“PMR”), which is a firm with experience in compliance

28 and monitoring with respect to public accommodations. Ashford will pay the fees and costs of 3

1 monitoring. Settlement Agreement ¶ 7. The parties have also agreed to a dispute resolution

2 process during the term of the Settlement Agreement. Id. at ¶ 14.

3

2. Released Claims

4

The settlement agreement defines the class as

5

all individuals with disabilities who use wheelchairs or scooters for

6

mobility who, from January 15, 2013 to the date of preliminary

approval of the Settlement, have been denied the full and equal

7

enjoyment of transportation services offered to guests at Hotels

owned and/or operated by Ashford because of the lack of equivalent

8

accessible transportation services at those Hotels.

9 Settlement Agreement ¶ 1. Plaintiffs and the class members will release any and all past or

10 present claims as of the date of preliminary approval of the settlement for injunctive or declaratory

11 relief against Ashford or its subsidiary or affiliated entities that are based on the ADA, the Unruh

United States District Court Northern District of California

12 Act, or any public accommodation provision of any federal, local, or state statutory, regulatory, or

13 common law concerning the provision of wheelchair accessible transportation services at Ashford

14 hotels. Id. at ¶ 15(a). While Plaintiffs Cupolo-Freeman and Reiskin further agree to release any

15 claims for monetary damages against Ashford, its subsidiary, and affiliated entities, the Settlement

16 Agreement does not release any claims on behalf of the class members for damages. Id. ¶ 15.

17

3. Class Notice

18

The parties propose dissemination of the class notice by emailing the notice to known

19 disability advocacy groups and independent living centers. Plaintiffs have submitted a nationwide

20 list of several hundred organizations to whom Plaintiffs propose sending the class notice. [Docket

21 No. 73 (Campins Decl., Dec. 11, 2015 Ex. 3 (Class Notice Organizations List).] In addition,

22 Plaintiffs will provide the notice to those persons with disabilities who have contacted CREEC

23 about problems with accessible hotel transportation. The proposed class notice is attached as

24 Exhibit B to Plaintiffs’ motion. Pls.’ Mot. Ex. B (Notice).

25

4. Attorneys’ Fees and Costs and Costs of Administration and Monitoring

26

The Settlement Agreement authorizes class counsel to seek an award of attorneys’ fees and

27 costs up to $165,000. This amount includes fees for work performed in connection with this

28 lawsuit as well as fees for future monitoring and evaluating compliance with the settlement. 4

1 Settlement Agreement ¶ 11. Counsel estimates that the fees for monitoring the settlement in this

2 case will total at least $30,000 over the course of three years.

3 II. DISCUSSION

4

A. Conditional Class Certification

5

Plaintiffs seek conditional certification of a settlement class under Federal Rules of Civil

6 Procedure 23(a) and 23(b)(2). A court may only certify a class action if it satisfies the four

7 prerequisites identified in Rule 23(a) and fits within one of the three subdivisions of Rule 23(b).

8 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Class certification requires the

9 following: (1) the class must be so numerous that joinder of all members individually is

10 impracticable; (2) there are questions of law or fact common to the class; (3) the claims or

11 defenses of the class representatives must be typical of the claims or defenses of the class; and (4)

United States District Court Northern District of California

12 the person representing the class must be able to fairly and adequately protect the interests of all

13 class members. See Fed. R. Civ. P. 23(a); Staton v. Boeing, 327 F.3d 938, 953 (9th Cir. 2003).

14 “The four requirements of Rule 23(a) are commonly referred to as ‘numerosity,’ ‘commonality,’

15 ‘typicality,’ and ‘adequacy of representation’ (or just ‘adequacy’), respectively.” United Steel,

16 Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO v.

17 ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010). Certification under Rule 23(b)(2) is

18 appropriate where “the party opposing the class has acted or refused to act on grounds that apply

19 generally to the class, so that final injunctive relief or corresponding declaratory relief is

20 appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). In the settlement context,

21 the court must pay “undiluted, even heightened, attention” to class certification requirements

22 because the court will not have the opportunity to adjust the class based on information revealed at

23 trial. See Staton, 327 F.3d at 952-53 (quoting Amchem, 521 U.S. at 620); Hanlon v. Chrysler

24 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (same).

25

Plaintiffs ask the court to conditionally certify the following class:

26

All individuals with disabilities who use wheelchairs or scooters for

mobility who, from January 15, 2013 to the date of preliminary

27

approval of the Settlement, have been denied the full and equal

enjoyment of transportation services offered to guests at Hotels

28

owned and/or operated by Ashford because of the lack of equivalent

5

United States District Court Northern District of California

accessible transportation services at those Hotels. 1
“Although there is no explicit requirement concerning the class definition in FRCP 23, courts have 2
held that the class must be adequately defined and clearly ascertainable before a class action may 3
proceed.” Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679-80 (S.D. Cal. 1999) (citation 4
omitted). The court finds that the class is clearly defined to identify the relevant time period, 5
January 15, 2013 until the date of preliminary approval. It also clearly describes the people who 6
are included in the class (persons who use wheelchairs or scooters for mobility), what those 7
individuals must have experienced (denial of full and equal enjoyment of transportation services 8
because of the lack of equivalent accessible transportation services), and where those experiences 9
must have occurred (at hotels owned and/or operated by Ashford). Accordingly, the class is 10
clearly ascertainable. See, e.g., Nat’l Fed’n of the Blind v. Target Corp., No. C 06-01802 MHP, 11
2007 WL 1223755, at *4 (N.D. Cal. April 25, 2007) (finding class defined as “All legally blind 12
individuals in the United States who have attempted to access Target.com and as a result have 13
been denied access to the enjoyment of goods and services offered in Target stores” sufficiently 14
ascertainable). 15
Once an ascertainable and identifiable class has been defined, the court must determine 16
whether Plaintiffs have satisfied the requirements under Rule 23(a). First, Rule 23(a) requires that 17
“the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). 18
Plaintiffs assert that the proposed class satisfies the numerosity requirement because it covers 73 19
hotels at which millions of persons have stayed during the class period, (see Campins Decl. Ex. 1), 20
and highlight census figures that indicate that more than 3.6 million Americans use wheelchairs 21
for mobility. McGarry Decl. Ex. 1. Therefore, Plaintiffs argue, if “just 15 of those 3.6 million 22
wheelchair users each year stayed at, or were deterred from staying at, one of the Ashford Hotels 23
at issue since 2013, the numerosity requirement is met.” Pls.’ Mot. 13 (citing Hernandez v. Cty. of 24
Monterey, 305 F.R.D. 132, 153 (N.D. Cal. 2015) (“A class or subclass with more than 40 25
members ‘raises a presumption of impracticability based on numbers alone.’” (citation omitted))). 26
Further, the proposed class is geographically dispersed, covering hotels in 20 states, which 27
supports a finding that joinder is impracticable. See Haley v. Medtronic, Inc., 169 F.R.D. 643, 648 28
6

1 (C.D. Cal. 1996). Using “common sense assumptions” and reasonable inferences, see

2 Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 347 (N.D. Cal.

3 2008), the court finds that Plaintiffs satisfy Rule 23’s numerosity requirement.

4

With respect to commonality, Rule 23(a)(2) requires that there be “questions of law or fact

5 common to the class.” Fed. R. Civ. P. 23(a)(2). “All questions of fact and law need not be

6 common to satisfy the rule. The existence of shared legal issues with divergent factual predicates

7 is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the

8 class.” Hanlon, 150 F.3d at 1019; see also Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 506

9 (N.D. Cal. 2012). Commonality may be found where a defendant allegedly fails to have in place

10 policies or practices required by law. See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir.

11 2014) (affirming class certification based on common questions that included medical policies and

United States District Court Northern District of California

12 practices that allegedly created a substantial risk of serious harm). Here, the issues facing the class

13 arise from common questions involving Ashford’s obligations to provide ADA-compliant

14 transportation services to guests. A common issue also exists regarding the impact of federal tax

15 provisions governing real estate investment trusts. Specifically, one of Ashford’s defenses

16 concerns tax provisions which condition favorable tax treatment of real estate investment trusts on

17 limitations on their ability to operate or manage hotels that they own. As a result, Ashford

18 contracts with third parties to manage its hotels. Ashford asserts in this litigation that those

19 management companies are responsible for providing transportation services, and that it does not

20 provide those third parties with any uniform policy or plan regarding the operation of

21 transportation services at its hotels. Whether this is an adequate defense to ADA claims is a

22 question common to every class member. The court finds that these issues are sufficient to

23 establish commonality.

24

Plaintiffs have also satisfied Rule 23(a)(3)’s typicality requirement. Typicality requires

25 that “the claims or defenses of the representative parties are typical of the claims or defenses of the

26 class.” Fed. R. Civ. P. 23(a)(3). The purpose of the requirement “is to assure that the interest of

27 the named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp.,

28 976 F.2d 497, 508 (9th Cir. 1992). Typicality is “satisfied when each class member’s claim arises 7

1 from the same course of events, and each class member makes similar legal arguments to prove

2 the defendant’s liability.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (quotation marks

3 omitted) (quoting Marisol v. Giuliani, 126 F.3d 372, 376 (2nd Cir. 1997)), abrogated on other

4 grounds by Johnson v. Cal., 543 U.S. 499, 504-05 (2005). Here, the named Plaintiffs’ personal

5 claims are similar to those of the absent class members; namely, Ashford’s hotels’ failure to

6 provide accessible transportation services.

7

Finally, Rule 23(a)(4) requires that “the representative parties will fairly and adequately

8 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To satisfy constitutional due process

9 concerns, absent class members must be afforded adequate representation before entry of a

10 judgment which binds them.” Hanlon, 150 F.3d at 1020. To determine whether the adequacy

11 prong is satisfied, courts consider the following two questions: “(1) [d]o the representative

United States District Court Northern District of California

12 plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the

13 representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class?”

14 Staton, 327 F.3d at 957 (citation omitted); see also Fendler v. Westgate-California Corp., 527

15 F.2d 1168, 1170 (9th Cir. 1975) (noting that representative plaintiffs and counsel also must have

16 sufficient “zeal and competence” to protect class interests). There is no indication of any conflict

17 between the class and Plaintiffs and/or their counsel. Class counsel are highly skilled and

18 experienced class action litigators. They also have significant expertise in vindicating the rights of

19 disabled individuals. The court is well-satisfied that Plaintiffs and their counsel have and will

20 continue to pursue this action vigorously on behalf of Plaintiffs and the proposed class members.

21

In addition to meeting the prerequisites of Rule 23(a), a proposed class must be appropriate

22 for certification under one of the categories in Rule 23(b). See Fed. R. Civ. P. 23(b); Hanlon, 150

23 F.3d at 1022. The court finds that certification is appropriate under Rule 23(b)(2). Certification

24 under Rule 23(b)(2) is proper where “the party opposing the class has acted or refused to act on

25 grounds that apply generally to the class, so that final injunctive relief or corresponding

26 declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2) is satisfied where

27 “‘class members complain of a pattern or practice that is generally applicable to the class as a

28 whole.’” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010) (quoting Walters v. Reno, 145 8

1 F.3d 1032, 1047 (9th Cir. 1998)). As discussed above, Plaintiffs allege that Ashford has a practice

2 of failing to provide equivalent accessible transportation services at its hotels that provide

3 transportation services to guests. Plaintiffs seek only injunctive and declaratory relief.

4

In sum, the record is sufficient to support conditional certification of the class under Rules

5 23(a) and 23(b)(2).

6

B. Preliminary Fairness Determination

7

Federal Rule of Civil Procedure 23(e) requires the court to determine whether a proposed

8 settlement is “‘fundamentally fair, adequate, and reasonable.’” Staton, 327 F.3d at 952 (quoting

9 Hanlon, 150 F.3d at 1026; see also Fed. R. Civ. P. 23(e) (court may only approve class action

10 settlement based on finding that settlement is “fair, reasonable, and adequate.”). “The purpose of

11 Rule 23(e) is to protect the unnamed members of the class from unjust or unfair settlements

United States District Court Northern District of California

12 affecting their rights.” In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008) (citation

13 omitted). “The initial decision to approve or reject a settlement proposal is committed to the

14 sound discretion of the trial judge.” Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625

15 (9th Cir. 1982).

16

To make a fairness determination, the court must balance a number of factors, including

17 the strength of the plaintiff’s case; the risk, expense, complexity, and likely duration of further

18 litigation; the risk of maintaining class action status throughout the trial; the amount offered in

19 settlement; the extent of discovery completed; the stage of the proceedings; and the experience and

20 views of counsel. Staton, 327 F.3d at 959. In making this evaluation, the court is not to “reach

21 any ultimate conclusions on the contested issues of fact and law which underlie the merits of the

22 dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and

23 expensive litigation that induce consensual settlements.” Officers for Justice, 688 F.2d at 625.

24 “The relative importance to be attached to any factor will depend upon and be dictated by the

25 nature of the claim(s) advanced, the type(s) of relief sought, and the unique facts and

26 circumstances presented by each individual case.” Id. Further, as some of these factors cannot be

27 fully assessed until the court conducts its final fairness hearing, “a full fairness analysis is

28 unnecessary at this stage.” Alberto v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008) 9

1 (quotation marks and citation omitted). Preliminary approval of a settlement and notice to the

2 class is appropriate if “the proposed settlement appears to be the product of serious, informed,

3 non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential

4 treatment to class representatives or segments of the class, and falls within the range of possible

5 approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (citing

6 Manual for Complex Litigation, Second § 30.44 (2d ed. 1985)).

7

Here, the factors set forth in In Re Tableware Antitrust Litigation weigh in favor of

8 preliminary approval of the settlement. First, the parties participated in private mediation, which

9 “tends to support the conclusion that the settlement process was not collusive.” Villegas v. J.P.

10 Morgan Chase & Co., No. CV 09-00261 SBA (EMC), 2012 WL 5878390, at *6 (N.D. Cal. Nov.

11 21, 2012). Additionally, the parties reached full agreement on the injunctive relief portion of the

12 settlement before negotiating attorneys’ fees and costs. Campins Decl. ¶ 5. Second, there are no

United States District Court Northern District of California

13 obvious deficiencies. The settlement provides significant and substantial injunctive relief to the

14 class members, in that all Ashford hotels that provide transportation services to guests will provide

15 either a wheelchair-accessible vehicle or equivalent accessible transportation. The hotels will be

16 held accountable pursuant to a thorough monitoring process, which is designed to achieve full

17 compliance with the ADA by the end of the third year of the Settlement Agreement. The

18 settlement does not grant preferential treatment to the class representatives or segments of the

19 class.

20

C. Class Notice

21

The court next considers the sufficiency of the parties’ notice plan. Where a proposed

22 settlement has been reached by the parties, the “court must direct notice in a reasonable manner to

23 all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). The court

24 must ensure that the parties’ notice plan provides for “the best notice that is practicable under the

25 circumstances, including individual notice to all members who can be identified through

26 reasonable effort” and that the notice itself explains in easily understood language the nature of the

27 action, definition of the class, class claims, issues and defenses, ability to appear through

28 individual counsel, procedure to request exclusion, and the binding nature of the class judgment. 10

1 Fed. R. Civ. P. 23(c)(2)(B).

2

In this case, there is no practical way to create a list of individuals who use wheelchairs or

3 scooters and patronize Ashford hotels. The parties propose dissemination of the class notice by

4 emailing the notice to known disability advocacy groups and independent living centers. Class

5 counsel has compiled and submitted a nationwide list of several hundred organizations. In

6 addition, Plaintiffs will provide the notice to those persons with disabilities who have contacted

7 CREEC about problems with accessible hotel transportation. The court is satisfied that this notice

8 plan is the best notice practicable under the circumstances. The court also finds that the proposed

9 class notice adequately describes the nature of the action, summarizes the terms of the settlement,

10 identifies the class and provides instruction on how to object, and sets forth the proposed fees and

11 expenses to be paid to Plaintiffs’ counsel in clear, understandable language. In sum, the proposed

United States District Court Northern District of California

12 notice plan satisfies the requirements of Rule 23(c)(2)(B).

13 III. CONCLUSION

14

For the reasons stated above, Plaintiffs’ motion for preliminary approval of the class action

15 settlement is GRANTED as follows:

16

1. Pursuant to Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), the

17 court conditionally certifies, for settlement purposes only, a proposed settlement class comprised

18 of all individuals with disabilities who use wheelchairs or scooters for mobility who, from January

19 15, 2013 to December 10, 2015, have been denied the full and equal enjoyment of transportation

20 services offered to guests at Hotels owned and/or operated by Ashford because of the lack of

21 equivalent accessible transportation services at those Hotels.

22

2. The settlement agreement is preliminarily approved as fair, reasonable, and

23 adequate pursuant to Federal Rule of Civil Procedure 23(e).

24

3. Defendant shall issue CAFA notice to the appropriate government entities by no

25 later than December 18, 2015.

26

4. The court approves the form of the proposed notice and notice dissemination plan

27 and orders Plaintiffs to issue notice to the class by December 21, 2015 (the “notice deadline”).

28

5. Class Counsel and Plaintiffs shall file a motion for attorneys’ fees and costs and for

11

1 final approval of the settlement within 45 days after the notice deadline.

2

6. Any member of the settlement class who wishes to object to the settlement shall

3 file any objections by February 19, 2016.

4

7. A hearing on the final approval of the settlement will be heard on March 10, 2016

United States District Court Northern District of California
UNITED S ALIFORNIA

5 at 11:00 a.m.

6

7

IT IS SO ORDERED.

8 Dated: December 18, 2015

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TATES DISTRICT C

OURT NORTH

_________I_T__IS__S_O___O_R__D__E_R__E_D___________

Donna M. Ryu

United
Judge

DStoatnens aMMag.isRtryatue

Judge

ERN DISTRICT OF C

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 Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 1 of 10

1 Timothy P. Fox – Cal. Bar No. 157750 CIVIL RIGHTS EDUCATION AND
2 ENFORCEMENT CENTER 104 Broadway, Suite 400
3 Denver, CO 80203 (303) 757-7901
4 tfox@creeclaw.org
5

Bill Lann Lee – Cal. Bar. No. 108452 Julie Wilensky – Cal. Bar No. 271765 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER. 2120 University Ave. Berkeley, CA 94704 (510) 431-8484 blee@creeclaw.org jwilensky@creeclaw.org

6

7 Julia Campins – Cal. Bar No. 238023 Hillary Benham-Baker – Cal. Bar No.
8 265019 CAMPINS BENHAM-BAKER, LLP
9 935 Moraga Road, Suite 200 Lafayette, CA 94549
10 (415) 373-5333 julia@cbbllp.com
11 hillary@cbbllp.com

Kevin W. Williams, Pro Hac Vice COLORADO CROSS-DISABILITY COALITION 655 Broadway #775 Denver, CO 80203 (303) 839-1775 kwilliams@ccdconline.org

12 Attorneys for Plaintiffs and the Class
13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA
15 OAKLAND DIVISION
16

17
THE CIVIL RIGHTS EDUCATION AND 18 ENFORCEMENT CENTER, on behalf of

19

itself, and ANN CUPOLO-FREEMAN and JULIE REISKIN, on behalf of themselves

20 and a proposed class of similarly situated persons defined below,

21

Plaintiffs, 22

v. 23

ASHFORD HOSPITALITY TRUST, 24 INC.,

25

Defendant.

26

Case No. 4:15-cv-00216-DMR
UNOPPOSED NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
The Honorable Donna M. Ryu Courtroom 4, 3rd Floor Hearing Date: March 10, 2016 Hearing Time: 11:00 a.m.

27

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MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 4:15-CV-00216-DMR

Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 2 of 10

1

NOTICE IS GIVEN that on March 10, 2016, at 11:00 a.m., or as soon thereafter as the

2 matter may be heard in the above-entitled Court, Plaintiffs will and do move the Court to finally

3 approve the Settlement Agreement (“Settlement” or “Settlement Agreement”) (attached to the

4 Proposed Final Approval Order (“Proposed Order”) as Exhibit A) between Plaintiffs, on behalf of

5 themselves and Class, and Defendant Ashford, by and through their respective counsel.

6 Concurrently with this Motion, Plaintiffs are submitting a Motion for Attorneys’ Fees. This

7 unopposed Motion is based on the Settlement Agreement, the Memorandum of Points and

8 Authorities in support of this Motion, the Declarations of Julia Campins and Julie Wilensky in

9 Support of the Unopposed Motion, and all other papers filed in this action.

10

11

12 DATED: February 4, 2016

CAMPINS BENHAM-BAKER, LLP

13

/s/Julia Campins

Julia Campins

14

Attorneys for Plaintiffs and the Settlement

Class

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MOT. FOR FINAL APPROVAL OF CLASS

ACTION SETTLEMENT

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CASE NO. 4:15-CV-00216-DMR

Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 3 of 10

1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED

2

MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT

3

The parties in this injunctive-relief class action, which involves alleged violations of the

4 Americans with Disabilities Act and California state law concerning provision of wheelchair-

5 accessible transportation by hotels, have reached a settlement agreement that provides substantial

6 benefits to the class.

7

Specifically, this Settlement ensures that the approximately 54 Ashford hotels that

8 currently provide transportation to hotel guests (“Ashford Hotels” or “Hotels”), and those Hotels

9 owned or acquired by Ashford that will provide transportation in the future, will also provide

10 equivalent accessible transportation to Class Members. The Plaintiffs did not bring claims for

11 damages, and do not waive damages claims for the Class with this settlement; instead they are

12 achieving full compliance with the law as requested in the Complaint. For these and other

13 reasons discussed below, Plaintiffs’ Counsel, who are experienced disability rights and class

14 action practitioners, believe this Settlement—negotiated at arm’s length over more than three

15 months with the assistance of a mediator who is a retired federal Magistrate Judge—to be a fair,

16 adequate, and reasonable resolution of the claims against Defendant. Accordingly, pursuant to

17 Federal Rule of Civil Procedure 23(e), Plaintiffs request that the Court enter final approval of the 18 proposed Settlement Agreement.1

19

BACKGROUND

20 I. Legal Background

21

As explained in Plaintiffs’ Motion for Preliminary Approval and this Court’s Order

22 Granting Preliminary Approval, transportation services provided by hotels are covered by the

23 ADA regulations applicable to “private entities not primarily engaged in the business of

24 transporting people,” which include “[s]huttle systems and other transportation services operated

25 by privately-owned hotels.” See 49 C.F.R. § 37.37(b); see also 28 C.F.R. § 36.310(c). The

26 regulations generally require a hotel that offers transportation services to purchase accessible

27 1 In Docket Numbers 78 through 81, Plaintiffs have filed a Motion for Attorneys’ Fees and Costs.

28

MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 4 of 10

1 vehicles or to provide equivalent transportation services to persons with disabilities. See 49

2 C.F.R. §§ 37.101 & 37.171. Whether the hotel must purchase accessible vehicles, or instead

3 provide equivalent transportation services, depends upon the capacity of the vehicle and whether

4 the hotel operates a fixed route transportation system (i.e., providing transportation between fixed

5 locations such as an airport shuttle service) or a demand responsive system (i.e., providing

6 transportation to any place a guest would like to go within a certain radius of the hotel). 49

7 C.F.R. § 37.105.

8 II. Factual Background

9

A. The Parties and Proceedings

10

As explained in Plaintiffs Motion for Preliminary Approval, Dkt. No. 66, Ashford

11 Hospitalities Trust is a real estate investment trust (REIT), which owns approximately 125 hotels

12 nationwide. Since Plaintiffs filed their Motion for Preliminary Approval, they have received

13 updated ownership and transportation information from Ashford, indicating that Ashford actually 14 owns 54 hotels that provide transportation services to guests.2 Dkt. No. 66-1.

15

B. Order Directing Notice

16

Plaintiffs proposed—and the Court ordered—sending class notice by email to hundreds of

17 disability organizations, as well as any individuals with whom CREEC had communicated

18 regarding problems with Ashford hotel transportation. Dkt. No. 75 at 10-11.

19

Plaintiffs complied with the Court’s order. On December 21, 2015, they sent class notice

20 by email to 655 organizations and 43 individuals. Where the organizations lacked email

21 addresses or where there were multiple locations, and one of those locations lacked an email

22 address, Plaintiffs also sent class notice through first class mail. Plaintiffs continued their efforts

23 to resend returned emailed and mailed notice. Ultimately, Plaintiffs have been unable to reach

24

2 Ashford’s discovery responses indicated that 73 hotels provided such services. It has

25

since informed Plaintiffs that, of those 73, at 14 Ashford has either discontinued transportation services (effective no later than 1/1/16) or incorrectly included the hotel in the amended

26

interrogatory responses. An additional 5 only have transportation services as part of an arrangement with nearby theme parks, and the transportation is provided and controlled

27

exclusively by the theme parks, not the hotels. Declaration of Julia Campins in Support of Motion for Final Approval ¶ 8.

28

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Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 5 of 10

1 only 4 organizations and 1 individual. Declaration of Julie Wilensky in Support of Motion for

2 Final Approval (Wilensky Decl.) ¶¶ 5-7.

3

C. Responses to the Notice

4

As of the date of filing of this Motion, no class members have filed any objections to the

5 proposed settlement, or have contacted Class Counsel to express dissatisfaction with any aspect

6 of the proposed settlement, including the amount Plaintiffs’ Counsel will request for attorneys’

7 fees and costs. Declaration of Julia Campins in Support of Motion for Final Approval (Campins

8 Decl.) ¶ 3. The only responses Plaintiffs have received have been requests for information (such

9 as the locations of relevant Ashford hotels or the Notice in an alternate format), congratulations

10 from a class member, and a blog posting informing followers of that blog regarding the

11 Settlement. Wilensky Decl. ¶ 8.

12

D. Terms of the Settlement

13

The terms of the Proposed Settlement Agreement are set forth in the Settlement

14 Agreement, a copy of which is attached as Exhibit A to the Proposed Final Approval Order. The

15 Court summarized the Settlement Agreement in its Order Granting Preliminary Approval, Dkt

16 No. 75, at 3-4. Plaintiffs also provided a detailed summary in their Motion for Preliminary

17 Approval, Dkt. No. 66, at 18-20.

18

ARGUMENT

19 I. The Court Should Finally Certify the Class

20

The Court conditionally certified the Settlement Class in the Order granting preliminary

21 approval. See Order at 5-9 (Dkt. No. 75). The Court should confirm the certification of the

22 Settlement Class as final, as the Class meets all of the requirements of Rule 23(a) and Rule

23 23(b)(2). As the Court has already found, the class satisfies the requirements of Rule 23(a)

24 because it is so numerous that joinder is impracticable, there are questions of law and fact

25 common to the class, the claims of the named Plaintiffs are typical of the claims of the class, and

26 the named Plaintiffs will fairly and adequately protect the interests of the class. Additionally,

27

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1 satisfying Rule 23(b)(2), class members complain of a pattern or practice that is generally

2 applicable to the class as a whole.

3 II. The Court Should Grant Final Approval of the Agreement

4

“[V]oluntary conciliation and settlement are the preferred means of dispute resolution,”

5 especially in complex class actions. Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615,

6 625 (9th Cir. 1982). Class action lawsuits readily lend themselves to compromise because of the

7 difficulties of proof, the uncertainties of the outcome and the typical length of the litigation. As a

8 result, “there is a strong judicial policy that favors settlements, particularly where complex class

9 action litigation is concerned.” In re Synocor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008).

10

To approve a proposed settlement of a class action under Federal Rule of Civil Procedure

11 23(e), the Court must find that the proposed settlement is “fair, adequate and reasonable,”

12 recognizing that ‘“it is the settlement taken as a whole, rather than the individual component

13 parts, that must be examined for overall fairness.”’ Staton v. Boeing Co., 327 F.3d 938, 960 (9th

14 Cir. 2003) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (internal

15 alterations omitted)).

16

When determining whether to grant final approval, “the court’s intrusion upon what is

17 otherwise a private consensual agreement negotiated between the parties to a lawsuit must be

18 limited to the extent necessary to reach a reasoned judgment that the agreement is not the product

19 of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement,

20 taken as a whole, is fair, reasonable and adequate to all concerned.” Officers for Justice, 688 F.2d

21 at 625. The Court should balance “the strength of plaintiffs’ case; the risk, expense, complexity,

22 and likely duration of further litigation; the risk of maintaining class action status throughout the

23 trial; the amount offered in settlement; the extent of discovery completed, and the state of the

24 proceedings; the experience and views of counsel . . . and the reaction of the class members to the

25 proposed settlement.” Id. The list of factors is not exclusive, and “those factors not relevant to

26 [a] case [may be] omitted.” Churchill Village, L.L.C. v. Gen. Electric, 361 F.3d 566, 576 n.7 (9th

27 Cir. 2004).

28

MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 7 of 10

A. The Settlement Will Benefit the Class 1

2

The Court is asked to evaluate the strength of Plaintiffs’ case. Here, Plaintiffs’ case is

3 strong, but so is the scope of the relief in the Settlement Agreement. The “amount offered in

4 settlement” by Ashford is a good result for the class. Because the Settlement will provide

5 substantial injunctive relief to the Class, it is an appropriate resolution of this case and the Court

6 should finally approve the Settlement. By means of this Settlement Agreement, all Ashford

7 hotels that provide transportation services to guests will provide either a wheelchair-accessible

8 vehicle or truly equivalent accessible transportation. The hotels will be held accountable through

9 a monitoring process that ensures that each hotel is monitored at least three times, and the

10 monitoring will increase if any hotel is found out of compliance at any time during the term of the

11 Agreement. The monitoring consists both of calls to the hotels to verify that they are providing

12 the required services and that they are providing accurate information with respect to those

13 services, and in-person visits to a random selection of the hotels that purport to provide equivalent

14 accessible transportation through a third-party transportation provider. After three infractions by

15 a particular hotel, Ashford has committed to either discontinue all transportation services at the

16 hotel, or to purchase an accessible vehicle for use at that hotel so that there can be no further

17 difficulties in providing equivalent accessible transportation through a third-party transportation

18 provider. The Settlement Agreement therefore creates a multistage process to ensure the best

19 chance that, by the end of three-year term of the agreement (if not before), all Ashford hotels that

20 provide transportation to guests will provide equivalent accessible transportation to the members

21 of the class. Dkt. No.75 at 3-4, 10.

22

All that the class releases in exchange for these measures and this monitoring are

23 injunctive relief claims through the date of preliminary approval (December 18, 2015). Cf.

24 Hanlon, 150 F.3d at 1027 (noting that the class achieved injunctive relief and monitoring but

25 retained the right to challenge other allegedly unlawful actions, and weighing that trade in favor

26 of approval of the settlement). In light of the substantial relief and comprehensive monitoring

27 scheme, final approval of the Settlement Agreement is appropriate.

28

MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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CASE NO. 4:15-CV-00216-DMR

Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 8 of 10

B. In the Absence of a Settlement, this Litigation Could Continue for Many Years. 1

2

Another factor supporting approval of a proposed settlement is “the likely duration of

3 further litigation.” See Staton, 327 F.3d at 959. In similar cases that do not resolve through such

4 early settlement, there can be considerable expense, such as multiple experts, contested motions

5 for class certification, summary judgment, and extensive discovery disputes. These adversarial

6 proceedings present risk, expense, complexity, and can drag the litigation on for multiple years.

7 Campins Decl. ¶ 5. For example, although Ashford did not contest liability, it could have

8 contested the type of injunctive relief available or class certification. Although Plaintiffs believe

9 that class certification is warranted, if litigation continued, there would be a risk that class

10 certification might not have been maintained through trial. In contrast, here Plaintiffs were able

11 to garner substantial injunctive relief for the class and bind Ashford to a productive resolution that

12 will begin to see results immediately.

13

C. The Settlement Was Reached Through Well Informed, Arm’s Length Negotiations After a Thorough Investigation of Claims.

14

Even though this case resolved at an early stage, the parties exchanged crucial

15 information, permitting them to discuss both the relevant case facts and the possible solutions.

16 Although the case settled early in formal discovery, Plaintiffs had extensive information in

17 mediation followed by formal discovery that enabled them to make a thorough assessment of the

18 class’s claims. Campins Decl. ¶ 4. Therefore, Plaintiffs were “appropriately informed in

19 negotiating a settlement.” Villegas v. J.P. Morgan Chase & Co., CV 09–00261 SBA (EMC),

20 2012 WL 5878390, at *6 (N.D. Cal, Nov. 21, 2012).

21

Moreover, Plaintiffs and Ashford engaged in lengthy negotiations, through a mediator,

22 over several months and via in-person and telephonic meetings as well as by email. See, e.g.,

23 Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 366 (S.D.N.Y. 2002) (finding that the

24 negotiations leading to a class action settlement had been at arm’s length in part because they had

25 occurred over several months and had involved several in-person meetings). Plaintiffs satisfied

26 themselves that they had sufficient information to craft an effective settlement. Although they

27

28

MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 9 of 10

1 have just begun the monitoring phase, so far they continue to believe that the process arrived at

2 was appropriate for the task. Campins Decl. ¶ 6.

3

D. The Reaction of the Class Supports Approval of the Settlement.

4

As of the date of filing, there have been no objections or complaints from any members of

5 the class. The only direct communication Plaintiffs have received has been a congratulatory

6 email from a class member. Wilensky Decl. ¶ 8. Based on the reception in the community,

7 Plaintiffs believe that the class is pleased with the result achieved. Campins Decl. ¶ 7.

8

E. The Recommendations of Experienced Counsel Favor Approval of the

9

Settlement.

10

In appraising the fairness of a proposed settlement, “[t]he recommendations of plaintiffs’

11 counsel should be given a presumption of reasonableness.” Boyd v. Bechtel Corp., 485 F. Supp.

12 610, 622 (N.D. Cal. 1979); see also In re Omnivision Techs. Inc., 559 F. Supp. 2d 1036, 1043

13 (N.D. Cal. 2008); Nat’l Rural Telecomm. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal.

14 2004) (noting counsel are “most closely acquainted with the facts of the underlying litigation”);

15 Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980) (“[T]he fact that

16 experienced counsel involved in the case approved the settlement after hard-fought negotiations is

17 entitled to considerable weight.”).

18

Here, the class is represented by counsel with significant experience in both disability

19 access cases and class actions, and these counsel firmly support approval of the Agreement.

20 Campins Declaration in Support of Preliminary Approval (Dkt. No. 67) ¶¶ 7-8.

21

CONCLUSION

22

For the reasons above, Plaintiffs respectfully request that the Court grant the Proposed

23 Final Approval Order filed concurrently.

24 25 Dated: February 4, 2016

Respectfully Submitted,

26
27
28
MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

By: /s/Julia Campins Julia Campins Hillary Benham-Baker

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Case 4:15-cv-00216-DMR Document 82 Filed 02/04/16 Page 10 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

CAMPINS BENHAM-BAKER, LLP 935 Moraga Road, Suite 200 Lafayette, CA 94549 (415) 373-5333 julia@cbbllp.com hillary@cbbllp.com
Timothy P. Fox – Cal. Bar No. 157750 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, CO 80203 (303) 757-7901 tfox@creeclaw.org
Bill Lann Lee – Cal Bar. No. 108452 Julie Wilensky – Cal. Bar No. 271765 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 2120 University Ave. Berkeley, CA 94704 (510) 431-8484 blee@creeclaw.org jwilensky@creeclaw.org
Kevin W. Williams, Pro Hac Vice COLORADO CROSS-DISABILITY COALITION 655 Broadway #775 Denver, CO 80203 (303) 839-1775 kwilliams@ccdconline.org
Attorneys for Plaintiffs and the Settlement Class

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CASE NO. 4:15-CV-00216-DMR

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6 CIVIL RIGHTS EDUCATION AND
7 ENFORCEMENT CENTER, et al.,

8

Plaintiffs,

9

v.

10 ASHFORD HOSPITALITY TRUST, INC.,

11

Defendant.

12

Case No. 15-cv-00216-DMR
ORDER GRANTING PLAINTIFFS' MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND GRANTING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
Re: Dkt. Nos. 81, 82

United States District Court Northern District of California

13

Plaintiffs Civil Rights Education and Enforcement Center (“CREEC”), Ann Cupolo-

14 Freeman, and Julie Reiskin move for final approval of a class action settlement and for an award

15 of attorneys’ fees and costs. [Docket Nos. 81, 82.] Defendant Ashford Hospitality Trust, Inc. 16 (“Ashford”) does not oppose the motion for final approval. [Docket No. 85.] The court conducted 17 a hearing on March 10, 2016. For the following reasons, the court grants final approval of the 18 proposed class settlement and awards attorneys’ fees and costs to class counsel.

19 I. BACKGROUND

20

A. Litigation History

21

In this class action, Plaintiffs seek declaratory and injunctive relief for alleged violations of

22 the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et seq., and California’s Unruh

23 Civil Rights Act, California Civil Code section 51, regarding the provision of wheelchair-

24 accessible transportation by hotels. Plaintiff CREEC is a civil rights organization based in

25 Denver, Colorado that is dedicated to ensuring that “persons with disabilities participate in our

26 nation’s civic life without discrimination.” [Docket No. 54 (Am. Compl.) ¶ 9.] Plaintiffs Cupolo-

27 Freeman and Reiskin, who are CREEC members, each have disabilities within the meaning of the

28 ADA and California law. Both use wheelchairs for mobility. Defendant Ashford is a publicly-

1 traded real estate investment trust that owns approximately 125 hotels, 54 of which offer

2 transportation services to their guests and are therefore subject to ADA transportation 3 requirements.1 These 54 hotels are spread among multiple states.

4

Plaintiffs assert that the ADA regulations require any Ashford hotel that offers

5 transportation services to purchase accessible vehicles or to provide equivalent transportation

6 services to persons with disabilities. See 49 C.F.R. §§ 37.101, 37.171. Whether the hotel must

7 purchase accessible vehicles, or instead provide equivalent transportation services, depends upon

8 the capacity of the vehicle (over 16 persons, or 16 persons or less) and whether the hotel operates

9 a fixed route transportation system, or a demand-responsive system. The lowest requirement (in

10 this case, for hotels with demand responsive systems using a vehicle with capacity for 16 persons

11 or less) is that the hotel provide equivalent transportation services if it does not own an accessible

United States District Court Northern District of California

12 vehicle.

13

In their amended complaint, Plaintiffs allege two claims against Ashford: 1) disability

14 discrimination under the ADA, 42 U.S.C. § 12182(a), for failing to ensure that transportation

15 vehicles in use at its hotels are readily accessible to and usable by individuals with disabilities; and

16 2) violation of California Civil Code section 51(b) for denying Plaintiffs and the class members’

17 rights to full and equal accommodations, advantages, facilities, privileges, or services offered at

18 Ashford’s hotels. Plaintiffs seek declaratory relief and a permanent injunction requiring Ashford

19 to comply with the ADA and the Unruh Act, as well as an award of reasonable attorneys’ fees and

20 costs. Plaintiffs do not seek damages on behalf of the class or the named plaintiffs.

21

B. Discovery and Mediation

22

The parties conducted an in-person mediation session in July 2015 before retired

23 Magistrate Judge James Larson. They continued to negotiate by telephone and email after that

24 session, and simultaneously engaged in discovery and investigation. Plaintiffs contacted 68

25 Ashford hotels that provide transportation services to investigate whether those hotels provide

26

27 1 Ashford’s original discovery responses indicated that 73 hotels provided such services. It has

28

since informed Plaintiffs that only 54 hotels currently offer transportation services. Campins Decl., Feb. 4, 2016, ¶ 8.

2

1 equivalent accessible transportation services. Plaintiffs also called third party transportation

2 providers identified by Ashford to determine whether they were capable of providing equivalent

3 accessible transportation services.

4

Following continued negotiations, the parties agreed to settle this matter in September

5 2015, and executed a settlement agreement on October 23, 2015. Plaintiffs filed an unopposed

6 motion for preliminary approval of the settlement agreement on November 5, 2015. The court

7 held a hearing on the motion on December 10, 2015 and granted preliminary approval on

8 December 18, 2015. [Docket No. 75 (Prelim. Approval Order).]

9

C. The Settlement Agreement

10

The complete terms of the proposed settlement agreement are set forth in the Joint

11 Stipulation and Settlement Agreement, which is attached as Exhibit A to Plaintiffs’ motion for

United States District Court Northern District of California

12 preliminary approval of the class action settlement. [Docket No. 66 (Pls.’ Mot. for Preliminary

13 Approval) Ex. A (Settlement Agreement).]

14

1. Injunctive Relief

15

The Settlement Agreement provides a comprehensive scheme for injunctive relief,

16 requiring all Ashford-owned and/or operated hotels to come into compliance with ADA

17 regulations that require hotels that offer transportation services to provide equivalent

18 transportation services to people who use wheelchairs or scooters. The Settlement Agreement sets

19 forth what “compliance” means, with specific attention to ensuring that any third party

20 transportation providers utilized by Ashford hotels provide equivalent accessible transportation.

21 Settlement Agreement ¶ 5. The Settlement Agreement explicitly requires that Ashford hotels

22 provide accurate information to potential hotel guests so that no guests are erroneously deterred.

23 Id. ¶ 5.c. Ashford will provide information to Plaintiffs regarding the current status of the hotels

24 that provide transportation services to their guests, as well as any applicable third party

25 transportation providers. Id. ¶ 4. Finally, Ashford will notify all companies that directly manage

26 Ashford’s hotels about the Settlement Agreement and the management companies’ obligations

27 under the law, as well as any hotel’s non-compliance with the Settlement Agreement. Id. ¶ 6.

28

To ensure that Ashford hotels come into compliance, the Settlement Agreement sets forth a

3

1 multistage, three-year monitoring process that involves both a third-party monitor and monitoring

2 by Plaintiffs’ counsel. Id. ¶ 7. Ashford will continue to provide information to Plaintiffs

3 throughout the monitoring process, and the monitoring and compliance process is designed to

4 ensure that all hotels are in full compliance with the ADA by the end of the third year of the

5 Settlement Agreement. Id. ¶¶ 7, 8. The parties have mutually selected a third-party monitor,

6 Progressive Management Resources, Inc. (“PMR”), which is a firm with experience in compliance

7 and monitoring with respect to public accommodations. Ashford will pay the fees and costs of

8 monitoring. Settlement Agreement ¶ 7. The parties have also agreed to a dispute resolution

9 process during the term of the Settlement Agreement. Id. at ¶ 14.

10

2. Released Claims

11

The settlement agreement defines the class as

United States District Court Northern District of California

12

all individuals with disabilities who use wheelchairs or scooters for

13

mobility who, from January 15, 2013 to the date of preliminary

approval of the Settlement, have been denied the full and equal

14

enjoyment of transportation services offered to guests at Hotels

owned and/or operated by Ashford because of the lack of equivalent

15

accessible transportation services at those Hotels.

16 Settlement Agreement ¶ 1. Plaintiffs and the class members will release any and all past or

17 present claims as of the date of preliminary approval of the settlement for injunctive or declaratory

18 relief against Ashford or its subsidiary or affiliated entities that are based on the ADA, the Unruh

19 Act, or any public accommodation provision of any federal, local, or state statutory, regulatory, or

20 common law concerning the provision of wheelchair accessible transportation services at Ashford

21 hotels. Id. at ¶ 15(a). While Plaintiffs Cupolo-Freeman and Reiskin further agree to release any

22 claims for monetary damages against Ashford, its subsidiary, and affiliated entities, the Settlement

23 Agreement does not release any claims on behalf of the class members for damages. Id. ¶ 15.

24

3. Attorneys’ Fees and Costs and Costs of Administration and Monitoring

25

The Settlement Agreement authorizes class counsel to seek an award of attorneys’ fees and

26 costs up to $165,000. This amount includes fees for work performed in connection with this

27 lawsuit as well as fees for future monitoring and evaluating compliance with the settlement.

28 Settlement Agreement ¶ 11. 4

D. Notice to the Class 1
The parties proposed, and the court ordered, dissemination of the class notice by email to 2
known disability advocacy groups and independent living centers, as well as to persons with 3
disabilities who have contacted CREEC about problems with accessible hotel transportation. 4
Pursuant to the preliminary approval order, on December 21, 2015, Plaintiffs sent class notice by 5
email to 655 disability advocacy organizations and 43 individuals. Wilensky Decl., Feb. 4, 2016, 6
¶¶ 4-6. Where the organizations lacked email addresses or where there were multiple locations 7
and one of those locations lacked an email address, Plaintiffs also sent class notice via first class 8
mail, which resulted in 666 emailed notices and 34 mailed notices. Id. at ¶ 6. Plaintiffs re-sent 9
returned emailed and mailed notices. Ultimately, Plaintiffs were unable to reach only four 10
organizations and one individual. Id. at ¶ 7. No class members objected to the settlement. 11

II. CLASS CERTIFICATION 12
For the reasons set forth in the court’s preliminary approval order, the court finds that the 13
proposed settlement class meets the requirements of Federal Rules of Civil Procedure 23(a) and 14
23(b)(2). The settlement class consists of: 15

All individuals with disabilities who use wheelchairs or scooters for

16

mobility who, from January 15, 2013 to the date of preliminary

approval of the Settlement, have been denied the full and equal

17

enjoyment of transportation services offered to guests at Hotels

owned and/or operated by Ashford because of the lack of equivalent

18

accessible transportation services at those Hotels.

19 Prelim. Approval Order at 5-6.

United States District Court Northern District of California

20 III. FINAL APPROVAL OF SETTLEMENT

21

Federal Rule of Civil Procedure 23(e) provides that a class action may not be settled

22 without court approval. “If the proposal would bind class members, the court may approve it only

23 after a hearing and on a finding that it is fair, reasonable, and adequate. Fed. R. Civ. P. 23(e).

24 Approval under Rule 23 involves a two-step process: (1) preliminary approval of the settlement;

25 and (2) final approval of the settlement at a fairness hearing following notice to the class. See

26 Nat’l Rural Telecomm. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004).

27

The primary concern of Rule 23(e) is “the protection of those class members, including the

28 named plaintiffs, whose rights may not have been given due regard by the negotiating parties.” 5

1 Officers for Justice v. Civil Serv. Comm’n of the City & Cnty. of San Francisco, 688 F.2d 615, 624

2 (9th Cir. 1982) (citations omitted). To assess a proposed settlement, courts balance the following

3 non-exclusive factors: “(1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity,

4 and likely duration of further litigation; (3) the risk of maintaining class action status throughout

5 the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage

6 of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental

7 participant; and (8) the reaction of class members to the proposed settlement.” Churchill Village

8 LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). Not all of these factors will apply to every

9 class action settlement, and in certain circumstances, “one factor alone may prove determinative in

10 finding sufficient grounds for court approval.” Nat’l Rural Telecomm. Coop., 221 F.R.D. at 525-

11 26 (citing Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993)). The district

United States District Court Northern District of California

12 court’s role in evaluating a proposed settlement “must be limited to the extent necessary to reach a

13 reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion

14 between, the negotiating parties,” and that the settlement is fair as a whole. Rodriguez v. West

15 Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009). It is neither for the court to reach any ultimate

16 conclusions regarding the merits of the dispute, nor to second guess the settlement terms. Officers

17 for Justice, 688 F.2d at 625; see also Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.

18 1998) (“Neither the district court nor this court ha[s] the ability to delete, modify or substitute

19 certain provisions. The settlement must stand or fall in its entirety.” (citation and internal

20 quotation marks omitted)). “[T]he decision to approve or reject a settlement is committed to the

21 sound discretion of the trial judge because [the judge] is exposed to the litigants and their

22 strategies, positions, and proof.” Id. (citation and quotation marks omitted).

23

The court has evaluated the proposed settlement for overall fairness under the relevant

24 factors and concludes that settlement is appropriate. With respect to the strength of Plaintiffs’

25 case, the parties reached settlement before the court considered the merits of their claims.

26 However, Ashford acknowledges that it could be found statutorily liable in the event of an ADA

27 violation. Ashford states that had a settlement not been reached, it would have contested class

28 certification and the type of injunctive relief available, which could have extended the litigation, 6

1 causing considerable expense. The proposed settlement provides meaningful injunctive relief to

2 the class members on a much shorter time frame than otherwise possible. All Ashford hotels that

3 provide transportation services to guests will provide either a wheelchair-accessible vehicle or

4 equivalent accessible transportation. The hotels will be held accountable pursuant to a thorough

5 monitoring process, which is designed to achieve full compliance with the ADA by the end of the

6 third year of the Settlement Agreement. The extent of discovery also supports settlement.

7 Plaintiffs had extensive information in mediation followed by formal discovery that enabled them

8 to make a thorough assessment of the class’s claims.

9

Further, the settlement is the product of good faith, non-collusive, arms-length negotiations

10 by experienced counsel after three mediation sessions, warranting a presumption in favor of

11 approval. See Officers for Justice, 688 F.2d at 625. Class counsel are highly skilled and

United States District Court Northern District of California

12 experienced class action litigators with significant expertise in vindicating the rights of disabled

13 individuals, and counsel firmly supports approval of the agreement. Finally, the reaction of class

14 members to the proposed settlement strongly favors approval. No class members objected to the

15 proposed settlement. See Mandujano v. Basic Vegetable Prods., Inc., 541 F.2d 832, 837 (9th Cir.

16 1976) (indicating that the number of objectors is “a factor to be considered when approving a

17 settlement”).

18

In sum, the court finds that viewed as a whole, the proposed settlement is sufficiently “fair,

19 reasonable and adequate.” See Officers for Justice, 688 F.2d at 625. Therefore, the court grants

20 final approval to the class settlement.

21 IV. ATTORNEYS’ FEES AND COSTS

22

Rule 23(h) provides that “[i]n a certified class action, the court may award reasonable

23 attorneys’ fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed.

24 R. Civ. P. 23(h). However, courts “have an independent obligation to ensure that the award, like

25 the settlement itself, is reasonable, even if the parties have already agreed to an amount.” In re

26 Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) (citations omitted).

27

The ADA provides for an award of reasonable attorneys’ fees and costs to prevailing

28 parties. 42 U.S.C. § 12205. The Ninth Circuit has approved the “lodestar method” for calculating 7

1 a reasonable attorneys’ fee in “class actions brought under fee-shifting statutes (such as federal

2 civil rights, securities, antitrust, copyright, and patent acts), where the relief sought—and

3 obtained—is often primarily injunctive in nature and thus not easily monetized, but where the

4 legislature has authorized the award of fees to ensure compensation for counsel undertaking social

5 beneficial litigation.” In re Bluetooth, 654 F.3d at 941. The court determines the lodestar by

6 multiplying the number of hours reasonably expended on the matter by a reasonable hourly rate.

7 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Jordan v. Multnomah Cty., 815 F.2d 1258, 1262

8 (9th Cir. 1987). The reasonable hourly rate depends on “the prevailing market rates in the relevant

9 community.” Blum v. Stenson, 465 U.S. 886, 896 (1984). Although the court presumes that the

10 lodestar represents a reasonable fee, Jordan, 815 F.2d at 1262, the court may adjust it upward or

11 downward to reflect “ a host of ‘reasonableness’ factors, ‘including the quality of representation,

United States District Court Northern District of California

12 the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk

13 of nonpayment.’” In re Bluetooth, 654 F.3d at 942 (quoting Hanlon, 150 F.3d at 1029 (citation

14 omitted)). “Foremost among these considerations, however, is the benefit obtained for the class.”

15 In re Bluetooth, 654 F.3d at 942.

16

Plaintiffs request a fee award of $157,597.12 and reimbursement of $7,402.88 for costs,

17 for a total of $165,000. This amount includes fees for work performed in connection with this

18 lawsuit as well as fees for future monitoring and evaluating compliance with the settlement.

19 According to class counsel, as of January 30, 2016, counsel’s lodestar is $192,497.00, reflecting

20 370.1 hours. Wilensky Decl. ISO Mot. for Fees (“2d Wilensky Decl.”), Feb. 4, 2016, ¶ 8. The

21 lodestar reflects the exercise of billing judgment to omit 90.1 hours, and does not include time

22 after January 30, 2016 relating to obtaining final approval of the settlement or monitoring, which

23 will continue for three years after final approval. Id. The requested amount, $157,597.12,

24 represents 82% of counsel’s lodestar. Id.

25

Plaintiffs submitted a detailed description of the work performed by counsel in this case,

26 along with an itemization of their attorneys’ fees and costs, including requested hourly rates, as

27 summarized in the declarations of Julie Wilensky and Julia Campins. 2d Wilensky Decl. ¶¶ 12-

28 22, 24, 25, Exs. 1, 2; Campins Decl. ISO Mot. for Fees (“2d Campins Decl.”), Feb. 4, 2016, ¶¶ 13, 8

1 14, 16. Class counsel requests their 2015 hourly rates. For CREEC, these rates include $900 per

2 hour for Bill Lann Lee, a 1974 law school graduate who served as the Assistant United States

3 Attorney General for Civil Rights and has been litigating antidiscrimination civil rights actions for

4 more than 40 years; $750 per hour for Tim Fox, a 1991 law school graduate who is one of the

5 nation’s leading disability rights class action practitioners; $500 per hour for Wilensky, a 2007 law

6 school graduate who litigates class and complex civil rights actions and individual impact

7 litigation; $430 per hour for Sarah Morris, a 2010 law school graduate; and $250 for paralegal

8 Marissa McGarry. 2d Wilensky Decl. ¶¶ 28-47. For Campins Benham-Baker, LLP, counsel

9 requests an hourly rate of $550 per hour for founding partner Campins, a 2005 law school

10 graduate who specializes in civil rights and employment cases and has significant class action

11 experience. Class counsel also seek fees for work by Lee and Wilensky when they practiced at

United States District Court Northern District of California

12 Lewis, Feinberg, Lee & Jackson, P.C. (“LFLJ”) at hourly rates of $900 and $500, respectively, as

13 well as rates of $360 per hour for a 2009 law school graduate and $225 per hour for a paralegal

14 who also worked on this case at LFLJ. 2d Campins Decl. ¶¶ 7, 8, 15; 2d Wilensky Decl. ¶¶ 48,

15 52. Finally, class counsel seeks $585 per hour for work by Colorado Cross-Disability Coalition

16 (“CCDC”) Legal Director Kevin Williams, a 1996 law school graduate, and $200 per hour for a

17 CCDC program assistant. 2d Wilensky Decl. ¶ 54.

18

The court finds that the hourly rates requested are in line with the market rates charged by

19 attorneys and paralegals of similar experience, skill, and expertise practicing in the Northern

20 District of California. Further, the number of hours that class counsel spent on this case was

21 reasonable in light of the issues presented in this litigation and the comprehensive, nationwide

22 injunctive relief obtained for the class. Class counsel have reasonably accounted for and

23 eliminated unnecessary or duplicative hours. No class member objected to class counsel’s fee

24 request. Accordingly, the court concludes that the attorneys’ fee requested is reasonable. The

25 court awards class counsel $157,597.12.

26

Class counsel is also entitled to reimbursement of reasonable expenses. Fed. R. Civ. P.

27 23(h); see Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995) (approving

28 reasonable costs in class action settlement). The court has examined the expenses incurred by 9

1 class counsel. 2d Wilensky Decl. Ex. 2. The expenses are reasonable and of the type that would

2 normally be charged by an attorney to a fee-paying client. See Grove v. Wells Fargo Fin. Cal.,

3 Inc., 606 F.3d 577, 580 (9th Cir. 2010). The court awards class counsel $7,402.88 in expenses.

4 V. CONCLUSION

5

For the reasons stated above, the court approves the settlement. The court also awards

6 class counsel $157,597.12 in attorneys’ fees and $7,402.88 in expenses.

United States District Court Northern District of California
UNITED S ALIFORNIA

7 IT IS SO ORDERED.
8 Dated: March 22, 2016
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OURT NORTH

TATES DISTRICT C
_________I_T__I_S_D_So_On_n_aO_M_R_._DR_Ey_uR__E_D___________
United States Magistrate Judge
Judge Donna M. Ryu ERN DISTRICT OF C

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 1

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11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 OAKLAND DIVISION
14

15 THE CIVIL RIGHTS EDUCATION AND
16 ENFORCEMENT CENTER, on behalf of
itself, and ANN CUPOLO-FREEMAN and 17 JULIE REISKIN, on behalf of themselves
18 and a proposed class of similarly situated persons defined below,
19 Plaintiffs,
20 v.
21
ASHFORD HOSPITALITY TRUST, 22 INC.,

23

Defendant.

24

Case No. 4:15-cv-00216-DMR
[PROPOSED] FINAL JUDGMENT AS MODIFIED

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[PROPOSED] FINAL JUDGMENT

CASE NO. 4:15-CV-00216-DMR

1
Under the Court’s March 22, 2016, Order Granting Final Approval of Settlement 2
(“Order”) (Dkt. No. 87), it is hereby ORDERED that final judgment in this matter is entered in 3
accordance with the Order and the Settlement it incorporates. The Court will have continuing 4
jurisdiction over the parties, the lawsuit, and the Settlement for purposes of enforcing the 5
Settlement and resolving disputes under the Settlement Agreement. 6
At the conclusion of the term of the Settlement Agreement, three years after the date of 7
the Order Granting Final Approval of Settlement, the case shall be dismissed with prejudice. 8

9 IT IS SO ORDERED.
10 Dated: March 29, 2016
11
12

TATES DISTRICT C
______________________________________
United SDtoantIeTnsaMIMSa.gSRiOsytruaOteRJDudEgRe ED

UNITED S ALIFORNIA

OURT NORTH

13 14

Judge Donna M. Ryu

15 16

ERN DISTRICT OF C

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[PROPOSED] FINAL JUDGMENT

- 1 -

CASE NO. 4:15-CV-00216-DMR

 
 Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 1 of 10
CLOSED,CONSENT,PRVADR
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:15−cv−00216−DMR

Civil Rights Education and Enforcement Center et al v. Ashford Hospitality Trust, Inc. Assigned to: Magistrate Judge Donna M. Ryu Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 01/15/2015 Date Terminated: 03/29/2016 Jury Demand: Defendant Nature of Suit: 446 American with Disabilities − Other Jurisdiction: Federal Question

Civil Rights Education and Enforcement Center

represented by Bill Lann Lee Civil Rights Education & Enforcement Center 2120 University Avenue Berkeley, CA 94704 510−431−8484 Email: blee@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hillary Jo Benham−Baker Campins Benham−Baker, LLP 935 Moraga Road, Suite 200 Lafayette, CA 94549 415−373−5333 Fax: 415−373−5334 Email: hillary@cbbllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Toshio Kano Davidson Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: jdavidson@lewisfeinberg.com TERMINATED: 10/07/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Campins Campins Benham−Baker, LLP 935 Moraga Road, Suite 200 Lafayette, CA 94549 415−373−5333 Fax: 415−373−5334 Email: julia@campinsbenhambaker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Wilensky Disability Rights California 1330 Broadway, Suite 500 Oakland, CA 94612 510−267−1200 Email: julie.wilensky@cco.sccgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 2 of 10

Kevin W. Williams Colorado Cross−Disability Coalition Legal Program 1385 South Colorado Boulevard, Suite 610−A Denver, CO 80222 303−839−1775 Email: kwilliams@ccdconline.org ATTORNEY TO BE NOTICED

Linda Pham Lam Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: Llam@lewisfeinberg.com TERMINATED: 10/07/2015 ATTORNEY TO BE NOTICED

Sarah Morris Civil Rights Education & Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303−757−7901 Email: smorris@creeclaw.org TERMINATED: 02/03/2016 ATTORNEY TO BE NOTICED

Timothy P. Fox Civil Rights Education & Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org ATTORNEY TO BE NOTICED

Plaintiff
Ann Cupolo agent of Ann Cupolo−Freeman

represented by Julia Campins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Julie Wilensky (See above for address) ATTORNEY TO BE NOTICED

Kevin W. Williams (See above for address) ATTORNEY TO BE NOTICED

Linda Pham Lam (See above for address) TERMINATED: 10/07/2015 ATTORNEY TO BE NOTICED

Sarah Morris

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 3 of 10

(See above for address) TERMINATED: 02/03/2016 ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kenneth Kilgore TERMINATED: 08/27/2015

represented by Julia Campins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Julie Wilensky (See above for address) ATTORNEY TO BE NOTICED

Kevin W. Williams (See above for address) ATTORNEY TO BE NOTICED

Linda Pham Lam (See above for address) TERMINATED: 10/07/2015 ATTORNEY TO BE NOTICED

Sarah Morris (See above for address) TERMINATED: 02/03/2016 ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Julie Reiskin

represented by Julia Campins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Wilensky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin W. Williams (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 4 of 10

Ashford Hospitality Trust, Inc.

represented by Nolan S. Armstrong McNamara Law Firm 3480 Buskirk Avenue, Suite 250 Pleasant Hill, CA 94523 925−939−5330 Fax: 925−939−0203 Email: nolan.armstrong@mcnamaralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miscellaneous RLJ Lodging Trust

represented by Steffanie Ann Malla Lewis Brisbois Bisgaard and Smith LLP 333 Bush Street Suite 1100 San Francisco, CA 94104 415−362−2580 Fax: 415−434−0882 Email: Steffanie.Malla@lewisbrisbois.com ATTORNEY TO BE NOTICED

Miscellaneous Hospitality Properties Trust

represented by David Howard Raizman Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 400 South Hope Street Suite 1200 Los Angeles, CA 90071 213−438−1285 Fax: 213−239−9045 Email: david.raizman@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/15/2015 01/15/2015
01/15/2015 01/16/2015 01/16/2015

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Ashford Hospitality Trust, Inc. ( Filing fee $ 400, receipt number 0971−9212159.). Filed byKenneth Kilgore, Civil Rights Education and Enforcement Center, Ann Cupolo. (Attachments: # 1 Civil Cover Sheet)(Fox, Timothy) (Filed on 1/15/2015) (Entered: 01/15/2015)
2 Case assigned to Magistrate Judge Donna M. Ryu.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (ha, COURT STAFF) (Filed on 1/15/2015) (Entered: 01/15/2015)
3 Initial Case Management Scheduling Order for Cases Asserting Denial of Right of Access under Americans with Disabilities Act. (vlkS, COURT STAFF) (Filed on 1/13/2015) Modified on 1/20/2015 (vlkS, COURT STAFF). (Entered: 01/15/2015)
4 Proposed Summons. (Fox, Timothy) (Filed on 1/16/2015) (Entered: 01/16/2015)
5 MOTION for leave to appear in Pro Hac Vice by Sarah Morris ( Filing fee $ 305, receipt number 09719215653.) Filing fee previously paid on 01/16/15 filed by Civil

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 5 of 10

01/16/2015 01/20/2015 01/22/2015
01/22/2015 01/23/2015 01/27/2015 01/28/2015
02/06/2015 02/09/2015 02/11/2015 02/11/2015 02/11/2015 02/12/2015 02/13/2015
02/18/2015 02/18/2015

Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Attachments: # 1 Exhibit Certificate of Good Standing)(Morris, Sarah) (Filed on 1/16/2015) (Entered: 01/16/2015)
6 ORDER by Magistrate Judge Donna M. Ryu granting 5 Sarah M. Morris's Motion for Admission Pro Hac Vice. (ig, COURT STAFF) (Filed on 1/16/2015) (Entered: 01/16/2015)
7 Summons Issued as to Ashford Hospitality Trust, Inc.. (vlkS, COURT STAFF) (Filed on 1/20/2015) (Entered: 01/20/2015)
8 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−9228005.) filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Attachments: # 1 Certificate/Proof of Service Certificate of Good Standing, Colorado)(Williams, Kevin) (Filed on 1/22/2015) (Entered: 01/22/2015)
9 Certificate of Interested Entities by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore (Attachments: # 1 Certificate/Proof of Service)(Morris, Sarah) (Filed on 1/22/2015) (Entered: 01/22/2015)
10 ORDER by Magistrate Judge Donna M. Ryu granting 8 Kevin William Williams's Motion for Admission Pro Hac Vice. (ig, COURT STAFF) (Filed on 1/23/2015) (Entered: 01/23/2015)
11 CERTIFICATE OF SERVICE by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore (Morris, Sarah) (Filed on 1/27/2015) (Entered: 01/27/2015)
12 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore.. (Attachments: # 1 Certificate/Proof of Service)(Fox, Timothy) (Filed on 1/28/2015) (Entered: 01/28/2015)
13 Application for Refund, Receipt Number 09719228005 by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Williams, Kevin) (Filed on 2/6/2015) (Entered: 02/06/2015)
14 CORPORATE DISCLOSURE STATEMENT Cupolo, Kenneth Kilgore (Attachments: # 1 Certificate/Proof of Service)(Fox, Timothy) (Filed on 2/9/2015) Modified on 2/10/2015 (vlkS, COURT STAFF). (Entered: 02/09/2015)
15 Refund re 13 Application for Refund declined. (vlkS, COURT STAFF) (Filed on 2/11/2015) (Entered: 02/11/2015)
16 Application for Refund, Receipt Number 25JEUKU9 by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Williams, Kevin) (Filed on 2/11/2015) (Entered: 02/11/2015)
17 Application for Refund, Receipt Number 09719228005 by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Williams, Kevin) (Filed on 2/11/2015) (Entered: 02/11/2015)
18 STIPULATION TO EXTEND TIME FOR DEFENDANT ASHFORD HOSPITALITY TRUST, INC. TO RESPOND TO PLAINTIFFS' COMPLAINT filed by Ashford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 2/12/2015) (Entered: 02/12/2015)
19 CLERK'S NOTICE Re: Consent or Declination: Defendant shall file a consent or declination to proceed before a magistrate judge within 14 days of this notice. The forms are available at: http://cand.uscourts.gov/civilforms. (This is a docket text entry only, there is no document associated with this entry) (ig, COURT STAFF) (Filed on 2/13/2015) (Entered: 02/13/2015)
20 Refund re 16 Application for Refund declined. (vlkS, COURT STAFF) (Filed on 2/18/2015) (Entered: 02/18/2015)
21 Refund re 17 Application for Refund declined. (vlkS, COURT STAFF) (Filed on 2/18/2015) (Entered: 02/18/2015)

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 6 of 10

02/19/2015 02/24/2015 02/27/2015 02/27/2015 02/27/2015 03/11/2015
03/12/2015
03/18/2015 03/19/2015
03/23/2015 03/25/2015
04/08/2015 04/08/2015 04/08/2015 04/10/2015 04/14/2015 04/14/2015

22 Application for Refund, Receipt Number 097−9227825 by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Williams, Kevin) (Filed on 2/19/2015) (Entered: 02/19/2015)
23 Refund re 22 Application for Refund approved. (vlkS, COURT STAFF) (Filed on 2/24/2015) (Entered: 02/24/2015)
24 ANSWER to Complaint with Jury Demand byAshford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 2/27/2015) (Entered: 02/27/2015)
25 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Ashford Hospitality Trust, Inc... (Armstrong, Nolan) (Filed on 2/27/2015) (Entered: 02/27/2015)
26 CORPORATE DISCLOSURE STATEMENT by Ashford Hospitality Trust, Inc. (Armstrong, Nolan) (Filed on 2/27/2015) Modified on 3/2/2015 (vlkS, COURT STAFF). (Entered: 02/27/2015)
27 MOTION to Expedite Administrative Motion to Suspend General Order 56 filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Attachments: # 1 Declaration Julia Campins, # 2 Proposed Order)(Campins, Julia) (Filed on 3/11/2015) (Entered: 03/11/2015)
28 Declaration of Julia Campins in Support of 27 MOTION to Expedite Administrative Motion to Suspend General Order 56 CORRECTION OF DOCKET 27−1 filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 27 ) (Campins, Julia) (Filed on 3/12/2015) (Entered: 03/12/2015)
29 Order by Magistrate Judge Donna M. Ryu granting 27 Plaintiffs' Administrative Motion to Suspend General Order 56.(dmrlc1, COURT STAFF) (Filed on 3/18/2015) (Entered: 03/18/2015)
30 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 4/29/2015. Case Management Conference set for 5/6/2015 01:30 PM. (vlkS, COURT STAFF) (Filed on 3/19/2015) (Entered: 03/19/2015)
31 NOTICE by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore of Firm Name Change (Lee, Bill) (Filed on 3/23/2015) (Entered: 03/23/2015)
32 MOTION to Consolidate Cases and/or Relate Cases for Pre−Trial Purposes Only filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. Motion Hearing set for 5/14/2015 11:00 AM in Courtroom 4, 3rd Floor, Oakland before Magistrate Judge Donna M. Ryu. Responses due by 4/8/2015. Replies due by 4/15/2015. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Morris, Sarah) (Filed on 3/25/2015) (Entered: 03/25/2015)
33 RESPONSE (re 32 MOTION to Consolidate Cases and/or Relate Cases for Pre−Trial Purposes Only ) filed byAshford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 4/8/2015) (Entered: 04/08/2015)
34 RESPONSE (re 32 MOTION to Consolidate Cases and/or Relate Cases for Pre−Trial Purposes Only ) filed byRLJ Lodging Trust. (Attachments: # 1 Certificate/Proof of Service)(Malla, Steffanie) (Filed on 4/8/2015) (Entered: 04/08/2015)
35 RESPONSE (re 32 MOTION to Consolidate Cases and/or Relate Cases for Pre−Trial Purposes Only ) filed byHospitality Properties Trust. (Attachments: # 1 Declaration of John G. Murray)(Raizman, David) (Filed on 4/8/2015) (Entered: 04/08/2015)
36 REPLY (re 32 MOTION to Consolidate Cases and/or Relate Cases for Pre−Trial Purposes Only ) filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Morris, Sarah) (Filed on 4/10/2015) (Entered: 04/10/2015)
37 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Wilensky, Julie) (Filed on 4/14/2015) (Entered: 04/14/2015)
38 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Wilensky, Julie) (Filed on 4/14/2015) (Entered: 04/14/2015)

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 7 of 10

04/14/2015 04/15/2015 04/15/2015 04/17/2015 04/24/2015 04/28/2015 05/05/2015 05/06/2015
05/06/2015 05/07/2015 08/25/2015 08/27/2015 08/27/2015
08/27/2015 08/31/2015

39 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Wilensky, Julie) (Filed on 4/14/2015) (Entered: 04/14/2015)
40 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options By Parties and Counsel (Armstrong, Nolan) (Filed on 4/15/2015) (Entered: 04/15/2015)
41 STIPULATION and Proposed Order selecting Private ADR by Ashford Hospitality Trust, Inc. filed by Ashford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 4/15/2015) (Entered: 04/15/2015)
42 ORDER by Magistrate Judge Donna M. Ryu granting 41 Stipulation selecting Private ADR. Parties agree to hold the ADR session by the presumptive deadline (90 days from the date of this Order). (ig, COURT STAFF) (Filed on 4/17/2015) (Entered: 04/17/2015)
43 JOINT CASE MANAGEMENT STATEMENT filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Campins, Julia) (Filed on 4/24/2015) (Entered: 04/24/2015)
44 NOTICE of Appearance by Linda Pham Lam (Lam, Linda) (Filed on 4/28/2015) (Entered: 04/28/2015)
45 STIPULATION WITH PROPOSED ORDER FOR PROTECTIVE ORDER FOR STANDARD LITIGATION filed by Ashford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 5/5/2015) (Entered: 05/05/2015)
46 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Initial Case Management Conference and Motion Hearing held on 5/6/2015 re 32 Plaintiffs' Motion to Consolidate Cases and/or Relate Cases for Pre−Trial Purposes Only. Motion DENIED. Hearing on Plaintiffs' Motion 32 previously set for 5/14/2015 11:00 AM VACATED. Case referred to Private ADR which shall be completed by 7/14/2015. Updated Joint Case Management Statement due by 8/26/2015. Further Case Management Conference set for 9/2/2015 01:30 PM. Deadline to file Motion for Class Certification is 10/15/2015. Last Day to hear dispositive motions on 4/14/2016 11:00 AM. Pretrial Conference set for 6/15/2016 03:00 PM and Bench Trial (5 Days) set for 6/27/2016 09:00 AM before Magistrate Judge Donna M. Ryu. FTR Time 1:53−2:07. Attachment Civil Conference Minute Order.(ig, COURT STAFF) (Date Filed: 5/6/2015) (Entered: 05/07/2015)
48 CASE MANAGEMENT CONFERENCE AND PRETRIAL ORDER: Signed by Magistrate Judge Donna M. Ryu on 5/6/15. (ig, COURT STAFF) (Filed on 5/6/2015) Modified on 5/7/2015 (igS, COURT STAFF). (Entered: 05/07/2015)
47 Order by Magistrate Judge Donna M. Ryu granting 45 Stipulated Protective Order as Modified.(dmrlc1, COURT STAFF) (Filed on 5/7/2015) (Entered: 05/07/2015)
49 JOINT CASE MANAGEMENT STATEMENT (Supplemental) filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Campins, Julia) (Filed on 8/25/2015) Modified on 8/26/2015 (vlkS, COURT STAFF). (Entered: 08/25/2015)
50 STIPULATION of Dismissal of All Claims of Plaintiff Kenneth Kilgore with Prejudice filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Campins, Julia) (Filed on 8/27/2015) (Entered: 08/27/2015)
51 STIPULATION WITH PROPOSED ORDER Permitting Plaintiff to File First Amended Complaint filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Kenneth Kilgore. (Attachments: # 1 Exhibit 1 (Proposed First Amended Complaint), # 2 Proposed Order)(Campins, Julia) (Filed on 8/27/2015) (Entered: 08/27/2015)
52 Certificate of Interested Entities by Ashford Hospitality Trust, Inc. (Armstrong, Nolan) (Filed on 8/27/2015) (Entered: 08/27/2015)
53 Order by Magistrate Judge Donna M. Ryu granting 51 Stipulation. Plaintiffs shall file their First Amended Complaint by September 1, 2015.(dmrlc1, COURT STAFF) (Filed on 8/31/2015) (Entered: 08/31/2015)

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 8 of 10

08/31/2015 09/02/2015
09/04/2015 09/17/2015 09/21/2015 09/24/2015
09/28/2015
09/29/2015 09/30/2015 09/30/2015 10/02/2015 10/07/2015 11/02/2015 11/05/2015

54 AMENDED COMPLAINT for Declaratory and Injunctive Relief against Ashford Hospitality Trust, Inc.. Filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Fox, Timothy) (Filed on 8/31/2015) (Entered: 08/31/2015)
55 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further Case Management Conference held on 9/2/2015. Parties shall file a Joint Discovery Letter re: any remaining discovery disputes by 9/17/2015. Updated Joint Case Management Statement due by 11/12/2015. Further Case Management Conference set for 11/18/2015 01:30 PM. See minute Order for more particulars.FTR Time 1:38−1:53. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 9/2/2015) (Entered: 09/03/2015)
56 Answer to Amended Complaint by Ashford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 9/4/2015) Modified on 9/8/2015 (vlkS, COURT STAFF). (Entered: 09/04/2015)
57 Joint Discovery Letter Brief filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Campins, Julia) (Filed on 9/17/2015) (Entered: 09/17/2015)
58 NOTICE of Change of Address by Julia Campins (Campins, Julia) (Filed on 9/21/2015) (Entered: 09/21/2015)
59 CLERK'S NOTICE: Notice is hereby given to all parties that Magistrate Judge Donna M. Ryu will hold a hearing on the 09/17/2015 joint discovery letter 57 on 10/08/2015 at 11:00 a.m., Courtroom 4, 3rd floor, U.S. District Court, 1301 Clay Street, Oakland, California 94612. (This is a text−only docket entry, there is no document associated with this notice.) (dmrlc1, COURT STAFF) (Filed on 9/24/2015) Modified on 9/25/2015 (vlkS, COURT STAFF). (Entered: 09/24/2015)
60 CLERK'S NOTICE: Notice is hereby given to all parties that the discovery hearing previously set for 10/08/2015 at 11:00 a.m. has been rescheduled to 10/08/2015 at 2:30 p.m., Courtroom 4, 3rd floor, U.S. District Court, 1301 Clay Street, Oakland, California 94612. (This is a text−only entry generated by the court. There is no document associated with this entry.)(dmrlc1, COURT STAFF) (Filed on 9/28/2015) (Entered: 09/28/2015)
61 STIPULATION WITH PROPOSED ORDER TO VACATE PENDING DEADLINES AND SET DEADLINE FOR MOTION FOR PRELIMINARY APPROVAL filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Attachments: # 1 Proposed Order)(Campins, Julia) (Filed on 9/29/2015) (Entered: 09/29/2015)
62 Order by Magistrate Judge Donna M. Ryu granting 61 Stipulated Request to Vacate Pending Deadlines. Motion for Preliminary Approval due 11/5/2015.(dmrlc1, COURT STAFF) (Filed on 9/30/2015) (Entered: 09/30/2015)
Set/Reset Hearing (dmrlc1, COURT STAFF) (Filed on 9/30/2015) (Entered: 09/30/2015)
63 Order by Magistrate Judge Donna M. Ryu denying without prejudice 57 Discovery Letter Brief.(dmrlc1, COURT STAFF) (Filed on 10/2/2015) (Entered: 10/02/2015)
64 NOTICE of Withdrawal of Linda Lam and Joshua Davidson by Civil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin (Wilensky, Julie) (Filed on 10/7/2015) Modified on 10/8/2015 (vlkS, COURT STAFF). (Entered: 10/07/2015)
65 NOTICE of Change of Address by Julie Wilensky and Bill Lann Lee (Wilensky, Julie) (Filed on 11/2/2015) (Entered: 11/02/2015)
66 MOTION to Certify Class and for Preliminary Approval of Class Action Settlement filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. Motion Hearing set for 12/10/2015 11:00 AM in Courtroom 4, 3rd Floor, Oakland before Magistrate Judge Donna M. Ryu. Responses due by 11/19/2015. Replies due by 11/27/2015. (Attachments: # 1 Exhibit A − Settlement Agreement, # 2 Exhibit B − Proposed Notice, # 3 Proposed Order, # 4 Declaration of Timothy Fox in Support of

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 9 of 10

11/05/2015 11/05/2015 11/12/2015 11/18/2015 12/03/2015
12/04/2015 12/04/2015 12/10/2015
12/11/2015 12/18/2015 12/22/2015 02/03/2016

Appointment as Class Counsel, # 5 Declaration of Julie Wilensky in Support of Appointment as Class Counsel, # 6 Declaration of Kevin Williams in Support of Appointment as Class Counsel)(Campins, Julia) (Filed on 11/5/2015) (Entered: 11/05/2015)
67 Declaration of Julia Campins in Support of 66 MOTION to Certify Class and for Preliminary Approval of Class Action Settlement filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 66 ) (Campins, Julia) (Filed on 11/5/2015) (Entered: 11/05/2015)
68 Declaration of Marissa McGarry in Support of 66 MOTION to Certify Class and for Preliminary Approval of Class Action Settlement filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Attachments: # 1 Exhibit 1)(Related document(s) 66 ) (Campins, Julia) (Filed on 11/5/2015) (Entered: 11/05/2015)
69 NOTICE of Change of Address by Kevin William Williams (Williams, Kevin) (Filed on 11/12/2015) (Entered: 11/12/2015)
70 Statement of Non−Opposition TO PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS filed byAshford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 11/18/2015) (Entered: 11/18/2015)
71 ***DISREGARD, NOT FILED IN COMPLIANCE WITH LR 3−4(a)(1)*** EXHIBITS re 66 MOTION to Certify Class and for Preliminary Approval of Class Action Settlement CORRECTED EXHIBIT B − PROPOSED NOTICE filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Related document(s) 66 ) (Campins, Julia) (Filed on 12/3/2015) Modified on 12/4/2015 (kcS, COURT STAFF). (Entered: 12/03/2015)
Electronic filing error. Please re−file in its entirety docket 71 Exhibits, filed by Ann Cupolo, Julie Reiskin, Civil Rights Education and Enforcement Center. ***DOCUMENT NOT FILED IN COMPLIANCE WITH LR 3−4(a)(1), FIRST PAGE REQUIREMENT*** (kcS, COURT STAFF) (Filed on 12/4/2015) (Entered: 12/04/2015)
72 EXHIBITS re 66 MOTION to Certify Class and for Preliminary Approval of Class Action Settlement CORRECTION OF DOCKET #66−2 (Corrected Exhibit B − Proposed Notice) filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Related document(s) 66 ) (Campins, Julia) (Filed on 12/4/2015) (Entered: 12/04/2015)
74 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Motion Hearing held on 12/10/2015 re 66 Plaintiffs' Motion for Preliminary Approval of Class Action Settlement, motion is taken under submission. See minute Order for more particulars. Court Reporter Name Diane Skillman. Attachment Civil Law and Motion Minute Order. (ig, COURT STAFF) (Date Filed: 12/10/2015) (Entered: 12/11/2015)
73 Declaration of Julia Campins in Support of 66 MOTION to Certify Class and for Preliminary Approval of Class Action Settlement filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Attachments: # 1 Exhibit 3, # 2 Proposed Order Revised)(Related document(s) 66 ) (Campins, Julia) (Filed on 12/11/2015) (Entered: 12/11/2015)
75 ORDER by Magistrate Judge Donna M. Ryu granting 66 Motion for Preliminary Approval of Class Action Settlement. (dmrlc1, COURT STAFF) (Filed on 12/18/2015) (Entered: 12/18/2015)
76 Declaration of Nolan S. Armstrong filed byAshford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 12/22/2015) (Entered: 12/22/2015)
77 NOTICE of Withdrawal of Sarah Morris by Civil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin (Fox, Timothy) (Filed on 2/3/2016) Modified on 2/4/2016 (vlkS, COURT STAFF). (Entered: 02/03/2016)

Case: 4:15-cv-216 As of: 11/05/2017 10:23 AM PST 10 of 10

02/04/2016 02/04/2016 02/04/2016 02/04/2016 02/04/2016
02/04/2016 02/04/2016 02/05/2016 03/10/2016
03/22/2016 03/22/2016 03/24/2016 03/29/2016

78 MOTION for Attorney Fees and Costs (Unopposed) filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. Motion Hearing set for 3/10/2016 11:00 AM in Courtroom 4, 3rd Floor, Oakland before Magistrate Judge Donna M. Ryu. Responses due by 2/18/2016. Replies due by 2/25/2016. (Wilensky, Julie) (Filed on 2/4/2016) (Entered: 02/04/2016)
79 Declaration of Julie Wilensky in Support of 78 MOTION for Attorney Fees and Costs (Unopposed) filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 78 ) (Wilensky, Julie) (Filed on 2/4/2016) (Entered: 02/04/2016)
80 Declaration of Julia Campins in Support of 78 MOTION for Attorney Fees and Costs (Unopposed) filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Related document(s) 78 ) (Wilensky, Julie) (Filed on 2/4/2016) (Entered: 02/04/2016)
81 Declaration of Laura Ho in Support of 78 MOTION for Attorney Fees and Costs (Unopposed) filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Attachments: # 1 Exhibit A)(Related document(s) 78 ) (Wilensky, Julie) (Filed on 2/4/2016) (Entered: 02/04/2016)
82 MOTION for Settlement Final Approval and Final Certification of Settlement Class filed by Civil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. Motion Hearing set for 3/10/2016 11:00 AM in Courtroom 4, 3rd Floor, Oakland before Magistrate Judge Donna M. Ryu. Responses due by 2/18/2016. Replies due by 2/25/2016. (Attachments: # 1 Proposed Order Granting Final Approval and Atorneys Fees, # 2 Proposed Order Proposed Final Judgment)(Campins, Julia) (Filed on 2/4/2016) (Entered: 02/04/2016)
83 Declaration of Julia Campins in Support of 82 MOTION for Settlement Final Approval and Final Certification of Settlement Class filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Related document(s) 82 ) (Campins, Julia) (Filed on 2/4/2016) (Entered: 02/04/2016)
84 Declaration of Julie Wilensky in Support of 82 MOTION for Settlement Final Approval and Final Certification of Settlement Class filed byCivil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Related document(s) 82 ) (Campins, Julia) (Filed on 2/4/2016) (Entered: 02/04/2016)
85 RESPONSE (re 82 MOTION for Settlement Final Approval and Final Certification of Settlement Class ) filed byAshford Hospitality Trust, Inc.. (Armstrong, Nolan) (Filed on 2/5/2016) (Entered: 02/05/2016)
86 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Motion Hearing held on 3/10/2016 re 78 Plaintiffs' Motion for Attorney Fees and costs and 82 Plaintiffs' Motion for Final Approval of Class Action Settlement. Both motions were taken under submission. Court's written Order to follow. Total Time in Court 11 minutes. Court Reporter Name Raynee Mercado. Attachment Civil Law and Motion Minute Order. (ig, COURT STAFF) (Date Filed: 3/10/2016) (Entered: 03/11/2016)
87 ORDER by Magistrate Judge Donna M. Ryu granting 78 Motion for Attorney Fees; granting 82 Motion for Final Approval of Class Action Settlement.(dmrlc1, COURT STAFF) (Filed on 3/22/2016) (Entered: 03/22/2016)
88 CLERK'S NOTICE: The parties shall file a proposed final judgment by 3/29/2016. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dmrlc1, COURT STAFF) (Filed on 3/22/2016) (Entered: 03/22/2016)
89 Proposed Final Judgment by Civil Rights Education and Enforcement Center, Ann Cupolo, Julie Reiskin. (Campins, Julia) (Filed on 3/24/2016) Modified on 3/25/2016 (vlkS, COURT STAFF). (Entered: 03/24/2016)
90 JUDGMENT, ***Civil Case Terminated. Signed by Magistrate Judge Donna M. Ryu on 03/29/2016. (dmrlc1, COURT STAFF) (Filed on 3/29/2016) (Entered: 03/29/2016)