                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CIVIL RIGHTS EDUCATION AND               No. 16-16269
ENFORCEMENT CENTER, on behalf of
itself; ANN CUPOLO-FREEMAN;              D.C. No. 3:15-
RUTHEE GOLDKORN; JULIE REISKIN,          cv-00221-JST
on behalf of themselves and a
proposed class of similarly situated
persons defined below,                     OPINION
                Plaintiffs-Appellants,

                  v.

HOSPITALITY PROPERTIES TRUST,
              Defendant-Appellee.


      Appeal from the United States District Court
        for the Northern District of California
        Jon S. Tigar, District Judge, Presiding

          Argued and Submitted May 15, 2017
               San Francisco, California

                  Filed August 9, 2017
2         CREEC V. HOSPITALITY PROPERTIES TRUST

    Before: Andrew J. Kleinfeld and Kim McLane Wardlaw,
      Circuit Judges, and Brian M. Morris,* District Judge.

                  Opinion by Judge Wardlaw;
    Partial Concurrence and Partial Dissent by Judge Morris


                          SUMMARY **


         Americans with Disabilities Act / Standing /
                    Class Certification

    The panel affirmed the district court’s order denying
plaintiffs’ motion for class certification in an action under
Title III of the Americans with Disabilities Act regarding
transportation services at hotels.

    The panel held that the plaintiffs had standing to
maintain this ADA suit. The panel held that a plaintiff who
lacks firsthand knowledge that an establishment is not in
ADA compliance may rely on the “deterrent effect doctrine”
to establish constitutional standing under the ADA.
Agreeing with the Tenth and Eleventh Circuits, the panel
held that a plaintiff may also assert constitutional standing
where her only motivation for visiting a facility is to test it
for ADA compliance.



*
 The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
**
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
        CREEC V. HOSPITALITY PROPERTIES TRUST                3

    The panel held that the district court did not abuse its
discretion in finding that the plaintiffs failed to meet the
commonality requirement of Fed. R. Civ. P. 23(a), given the
lack of consistent policies or practices across the hotels
owned by the defendant but operated by others.

    Concurring in part and dissenting in part, District Judge
Morris concurred in the majority’s analysis of standing.
Dissenting from the majority’s determination that the district
court did not abuse its discretion in denying class
certification, Judge Morris wrote that the plaintiffs satisfied
the commonality and typicality requirements of Rule 23.


                         COUNSEL

Timothy P. Fox (argued), Civil Rights Education and
Enforcement Center, Denver, Colorado; Bill Lann Lee, Civil
Rights Education and Enforcement Center, Berkeley,
California; Julia Campins, Campins Benham-Baker LLP,
Lafayette, California; Julie Wilensky, Disability Rights
California, Oakland, California; for Plaintiffs-Appellants.

David Raizman (argued), Christopher F. Wong, and
Kathleen J. Choi, Ogletree Deakins Nash Smoak & Stewart
P.C., Los Angeles, California, for Defendant-Appellee.

Lindsay Nako, Jocelyn D. Larkin, and Lynnette Miner,
Impact Fund, Berkeley, California, for Amici Curiae Impact
Fund, Disability Rights Advocates, Disability Rights
Education & Defense Fund, Disability Rights Legal Center,
Disability Rights Oregon, Disability Rights Washington,
Equal Rights Advocates, Legal Aid Association of
California, Legal Aid Society – Employment Law Center,
4       CREEC V. HOSPITALITY PROPERTIES TRUST

National Association of the Deaf, National Disability Rights
Network, and National Federation of the Blind.


                         OPINION

WARDLAW, Circuit Judge:

    This case presents two questions of constitutional
standing to assert claims under Title III of the Americans
with Disabilities Act (“ADA”), and the question of whether
those claims are maintainable as a class action. We must
decide (1) whether a plaintiff may rely on the “deterrent
effect doctrine” to establish constitutional standing under the
ADA where she lacks firsthand knowledge that an
establishment is not in ADA compliance; and (2) whether a
plaintiff has constitutional standing where her only
motivation for visiting a facility is to test it for ADA
compliance. We conclude that standing may be asserted in
both circumstances. However, although plaintiffs have
standing to maintain this ADA suit, the district court did not
abuse its discretion in denying class certification. The court
did not err in finding that the plaintiffs failed to meet Rule
23’s commonality requirement, given the lack of consistent
policies or practices across the hotels owned by defendant
Hospitality Properties Trust (“HPT”), but operated by
others.

                              I.

    HPT is a real estate investment trust (“REIT”) that owns
hotels across the United States. REITs are vehicles for
investors to own a fraction of a group of real estate holdings.
Under federal statute, REITs are exempt from taxation on
corporate profits; shareholders are taxed only when they
          CREEC V. HOSPITALITY PROPERTIES TRUST                          5

receive dividends. 1 26 U.S.C. §§ 856–859. To avoid
taxation at the corporate level, REITs must, among other
things, remain passive investors and delegate the
management of particular facilities. Id. § 856(d)(7).

    Named Plaintiffs Ann Cupolo-Freeman, Ruthee
Goldkorn, and Julie Reiskin (“Named Plaintiffs”) are
physically disabled and use wheelchairs for mobility.
Cupolo-Freeman and Goldkorn reside in California, while
Reiskin lives in Colorado. Each phoned an HPT-owned
hotel located in her state of residence that provided free local
shuttle services, and each was informed that the hotel at issue
did not provide equivalent shuttle service for mobility-
impaired people. Each alleges that she would have stayed at
the hotel she called but for its failure to provide equivalent
shuttle service. In addition, each alleges that she still intends
to stay at the hotel, but that its failure to provide equivalent
shuttle service deters her from doing so at present.

    Cupolo-Freeman, Goldkorn, and Reiskin, along with the
Civil Rights Education and Enforcement Center
(collectively “CREEC”), 2 filed a putative class action
against HPT in the U.S. District Court for the Northern
District of California, alleging that HPT had failed to offer

1
  The Senate Finance Committee defines REITs as entities that “receive[]
most of [their] income from passive real-estate related investments.” S.
Rep. No. 106-201, at 55 (1999). REITs receive conduit taxation
treatment to “permit individual investors to get the benefit of centralized
management and diversification without being subjected to an extra layer
of corporate taxes.” Boris I. Bittker & Lawrence Lokken, Federal
Taxation of Income, Estates and Gifts ¶ 99.5 (2017).
2
  After filing this appeal, CREEC voluntarily dismissed its claims before
the district court. Nevertheless, for simplicity’s sake, we follow the
district court in referring to appellants as “CREEC.”
6       CREEC V. HOSPITALITY PROPERTIES TRUST

equivalent accessible transportation services at its hotels in
violation of Title III of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12182(a), 12182(b)(2)(B),
12182(b)(2)(C).

    Section 12182(a) provides:

       No individual shall be discriminated against
       on the basis of disability in the full and equal
       enjoyment of the goods, services, facilities,
       privileges, advantages, or accommodations
       of any place of public accommodation by any
       person who owns, leases (or leases to), or
       operates a place of public accommodation.

42 U.S.C. § 12182(a). A hotel is a public accommodation.
Id. § 12181(7)(A). Section 12182(b)(2)(B) specifically
requires private entities that “operate” “fixed route systems”
to provide equivalent service to those with disabilities. Id.
§ 12182(b)(2)(B). Section 12182(b)(2)(C) requires the same
of entities that “operate” “demand responsive systems.” Id.
§ 12182(b)(2)(C). CREEC alleges that, while most HPT
hotels provide some form of free local transportation service,
very few provide equivalent service that is accessible to
people who use wheelchairs or scooters for mobility.

    Before the district court, CREEC moved to certify the
class pursuant to Federal Rule of Civil Procedure 23. It
defined the class as people with limited mobility who have
been or will be denied equivalent transportation services at
HPT hotels. CREEC alleges that the common questions of
fact and law include “[w]hether Defendant HPT’s
transportation vehicles are readily accessible to and usable
by individuals with disabilities, including individuals who
use wheelchairs,” and “[w]hether Defendant HPT has
ensured that the transportation system in place at each hotel,
        CREEC V. HOSPITALITY PROPERTIES TRUST                7

when viewed in its entirety, meets the equivalent service
requirements of” the ADA. Fed. R. Civ. P. 23(a)(2). They
also assert that certification is proper under Rule 23(b)(2)
because HPT “acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final
injunctive or declaratory relief with respect to the class as a
whole.”

    The district court denied the motion. It held that the
proposed class did not meet the threshold Rule 23(a)
requirement of commonality because HPT delegates the
operation of its hotels to management companies. Deciding
CREEC’s claims, the district court held, would necessitate
142 “mini-trials” to determine whether the particular
practices at each of the 142 challenged hotels violate Title
III. In the alternative, the district court held that CREEC
failed to meet the Rule 23(a) requirement of typicality, and
failed to establish that injunctive relief would be
“appropriate respecting the class as a whole,” Fed. R. Civ. P.
23(b)(2). CREEC timely appealed.

                              II.

    The district court had federal question subject matter
jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1343. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and Fed. R. Civ. P.
23(f), which allows for interlocutory appeals from denials of
class-action certification.

                             III.

    We first address whether CREEC has properly asserted
Article III standing. The following three elements constitute
the “irreducible constitutional minimum” of standing: (1) an
“injury in fact” suffered by the plaintiff; (2) a causal
connection between that injury and the defendant’s conduct;
8       CREEC V. HOSPITALITY PROPERTIES TRUST

and (3) a likelihood that the injury will be “redressed by a
favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992). HPT argues that the Named Plaintiffs
have failed to satisfy both the injury-in-fact and
redressability requirements. We address these contentions
in turn.

A. The Named Plaintiffs have properly alleged injury in
   fact.

    Article III “requires that the party seeking review be
himself among the injured.” Sierra Club v. Morton,
405 U.S. 727, 734–35 (1972). A plaintiff has sustained an
injury in fact only if she can establish “an invasion of a
legally protected interest which is (a) concrete and
particularized; and (b) actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (citations and internal
quotation marks omitted).

    Where, as here, a party seeks injunctive relief, “past
exposure to illegal conduct does not in itself show a present
case or controversy.” City of Los Angeles v. Lyons, 461 U.S.
95, 102 (1983) (alteration omitted). Instead, the plaintiff
must allege “continuing, present adverse effects” stemming
from the defendant’s actions. Id.

    A plaintiff experiences continuing adverse effects where
a defendant’s failure to comply with the ADA deters her
from making use of the defendant’s facility. Chapman v.
Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 953 (9th Cir. 2011)
(en banc). We have dubbed this the “deterrent effect
doctrine.” Id. at 949–50. “[W]hen a plaintiff who is disabled
within the meaning of the ADA has actual knowledge of
illegal barriers at a public accommodation to which he or she
desires access, that plaintiff need not engage in the ‘futile
gesture’ of attempting to gain access in order to show actual
        CREEC V. HOSPITALITY PROPERTIES TRUST                  9

injury. . . .” Pickern v. Holiday Quality Foods Inc., 293 F.3d
1133, 1135 (9th Cir. 2002) (quoting 42 U.S.C.
§ 12188(a)(1)). “So long as the discriminatory conditions
continue, and so long as a plaintiff is aware of them and
remains deterred, the injury under the ADA continues.” Id.
at 1137.

    The relevant question, therefore, is whether the Named
Plaintiffs are presently deterred from visiting HPT-owned
hotels. We limit our evaluation to the pleadings. See Cent.
Delta Water Agency v. United States, 306 F.3d 938, 947 (9th
Cir. 2002) (The elements of standing “must be supported at
each stage of the litigation in the same manner as any other
essential element of the case.”).

    The Named Plaintiffs have alleged in the First Amended
Complaint that they intend to visit the relevant hotels, but
have been deterred from doing so by the hotels’ non-
compliance with the ADA. They further allege that they will
visit the hotels when the non-compliance is cured. Thus, the
ADA violations have prevented them from staying at the
hotels. Without such averments, they would lack standing.
However, “construing the factual allegations in the
complaint in favor of the plaintiffs,” as we must at this
preliminary stage, Mont. Shooting Sports Ass’n v. Holder,
727 F.3d 975, 979 (9th Cir. 2013), we conclude that the
Named Plaintiffs have sufficiently alleged injury in fact.
Chapman, 631 F.3d at 953. Their harm is “concrete and
particularized,” and their intent to visit the hotels once they
provide equivalent shuttle service for the disabled renders
their harm “actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560.

    HPT contends that this is the wrong result. It offers
several reasons why the named plaintiffs cannot meet Article
III’s injury-in-fact requirement: (1) they did not actually visit
10       CREEC V. HOSPITALITY PROPERTIES TRUST

the hotels; (2) they do not intend to do so unless and until the
alleged ADA violations are remedied; (3) they are motivated
to visit the hotels only by their desire to test them for ADA
compliance; and (4) they failed to allege injury in the
original complaint, instead doing so only in the First
Amended Complaint. None of these facts defeats standing.

     1. The Named Plaintiffs were not required to visit the
        hotels.

    While HPT concedes that a plaintiff need not make
repeated in-person visits to ADA non-compliant sites in
order to demonstrate that the defendant’s noncompliance has
deterred her access, see Pickern, 293 F.3d at 1135, it
contends that a plaintiff cannot satisfy the injury-in-fact
requirement unless she has had at least one “personal
encounter” with the alleged barrier. HPT argues that the
Named Plaintiffs fail to meet this threshold because they
merely telephoned the hotels to inquire about transportation
services available to disabled guests.

    However, the purported requirement urged by HPT of a
“personal encounter” with an access barrier lacks foundation
in Article III. Actually visiting a hotel, as opposed to
phoning, does not make a plaintiff’s injury any more
concrete: she is deterred from using the accommodation in
either event. See Lujan, 504 U.S. at 560. It is the plaintiff’s
“actual knowledge” of a barrier, rather than the source of that
knowledge, that is determinative. Pickern, 293 F.3d at 1135.

    True, whether a plaintiff has visited a facility in the past
may be indicative of whether she will do so in the future.
Requiring a plaintiff to “personally encounter” a barrier in
order to obtain an injunction under Title III might screen out
plaintiffs who do not in fact intend to use the facility—that
is, plaintiffs for whom an injury is not actually imminent.
        CREEC V. HOSPITALITY PROPERTIES TRUST               11

See Lujan, 504 U.S. at 560. However, while past actions
may constitute “evidence bearing on whether there is a real
and immediate threat of repeated injury,” Lyons, 461 U.S. at
102, they are not necessarily dispositive evidence. For
example, evidence of concrete travel plans would be
sufficient to show that a disabled plaintiff intends to visit a
facility, even if she has not travelled there in the past. See
Lujan, 504 U.S. at 564. Contrariwise, in the absence of
travel plans, a past visit might not be sufficient evidence of
imminent future harm. See id.

    Requiring a plaintiff to “personally encounter” a barrier
would also cause line-drawing problems. Would it be
enough to travel to the hotel and ask the concierge whether
the hotel’s shuttle service accommodates the disabled, or
must a plaintiff actually attempt to use the purportedly
deficient accommodation? If the concierge says there is no
accommodation, must the plaintiff perform a visual
inspection or review schedules to verify this? What if the
plaintiff is blind?

    Nevertheless, HPT insists its “personal encounter”
requirement is dictated by precedent, citing a district court
case, Brooke v. Peterson, 185 F. Supp. 3d 1203, 1207–11
(C.D. Cal. 2016), for this proposition. Surveying Ninth
Circuit cases on the deterrent effect doctrine, the Brooke
court concluded that our precedent requires a plaintiff to
allege “personal, percipient knowledge of [alleged] barriers
[to access]” to sufficiently assert standing. Id. at 1207–10.
According to Brooke, secondhand knowledge—obtained,
for example, from a concierge or the plaintiff’s agent—is
insufficient. Id.

    The Brooke court reads too much into our prior cases.
While it places talismanic weight on our use of the term
“return” in Chapman, 631 F.3d at 953, and D’Lil v. Best
12      CREEC V. HOSPITALITY PROPERTIES TRUST

Western Encina Lodge & Suites, 538 F.3d 1031, 1037–38
(9th Cir. 2008), those cases used the term to distinguish
planned visits from past ones, not to differentiate “personal”
and “percipient” knowledge from secondhand knowledge.
The cases cited in Brooke all happened to involve plaintiffs
who had observed the lack of accommodation firsthand, but
none of them held that this was a constitutional requirement.

    Accordingly, we reject HPT’s invitation to create a
bright-line predicate of a “personal encounter” with a barrier
to access as a requirement for standing under ADA Title III.
Making case-by-case determinations about whether a
particular plaintiff’s injury is imminent is well within the
competency of the district courts. See, e.g., Houston v.
Marod Supermarkets, Inc., 733 F.3d 1323, 1335–37 (11th
Cir. 2013) (assessing various factors in determining whether
plaintiff suing under ADA Title III was likely to actually
visit the supermarket, including prior visits, proximity of
residence to store, plans for future visits, and status as an
“ADA tester who has filed many similar lawsuits”).

     2. The Named Plaintiffs need not intend to visit the
        hotels until after remediation.

    HPT next contends that the Named Plaintiffs failed to
establish “a sufficient likelihood that [they] will again be
wronged in a similar way,” Chapman, 631 F.3d at 948, given
their allegation that they do not plan to stay at the hotels
unless and until HPT remedies the alleged violations. This
argument has some superficial appeal, because courts have
denied standing where a plaintiff was unlikely to actually
experience a threatened harm. See, e.g., Morton, 405 U.S. at
734–35; Lujan, 504 U.S. at 562–64.

   However, this is really just a roundabout way of
challenging the rule that a plaintiff need not engage in a
        CREEC V. HOSPITALITY PROPERTIES TRUST             13

“futile gesture” to establish Title III standing if she is on
notice that the establishment “does not intend to comply”
with the ADA. 42 U.S.C. § 12188(a)(1). As we held in
Pickern, “under the ADA, once a plaintiff has actually
become aware of discriminatory conditions existing at a
public accommodation, and is thereby deterred from visiting
or patronizing that accommodation, the plaintiff has suffered
an injury.” 293 F.3d at 1136–37. The injury continues so
long as equivalent access is denied. Thus, HPT’s contention
fails.

   3. Motivation for visiting the hotels is irrelevant.

    Our court has yet to decide whether plaintiffs suing
under Title III of the ADA can claim “tester standing.” We
begin our analysis of this question with Havens Realty Corp.
v. Coleman, 455 U.S. 363, 372–74 (1982), in which the
Supreme Court held that testers have standing to sue under
Sections 804(d) and 812(a) of the Fair Housing Act
(“FHA”), 42 U.S.C. §§ 3604(d), 3612(a). The Court first
noted that Section 804(d) prohibits representations “to any
person because of race” that a dwelling is unavailable, when
in fact it is available. Id. at 373. The Court reasoned that
Section 804(d) “establishes an enforceable right to truthful
information concerning the availability of housing,” and that
an invasion of this right causes harm that is potentially
cognizable under Article III. Id. at 373–74. Whereas
Congress in Section 804(a) required a “bona fide offer” to
rent or purchase before a plaintiff could sue for
discriminatory refusal to sell or rent, it included no such
limitation in Section 804(d). Id. at 374. The Court relied on
this absence of limiting language to hold that plaintiffs who
“pose as renters or purchasers for the purpose of collecting
evidence of unlawful steering practices” have standing to sue
for violations of Section 804(d). Id. at 373–75.
14      CREEC V. HOSPITALITY PROPERTIES TRUST

    We have held that the disabled may assert tester standing
under the FHA. After Havens Realty was decided, Congress
amended the FHA to specifically prohibit discrimination on
the basis of “handicap” in the “terms, conditions, or
privileges of sale or rental of a dwelling.” 42 U.S.C.
§ 3604(f)(2). Following the reasoning of Havens Realty, we
held that tester standing was available under this provision.
Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1102–04
(9th Cir. 2004). We reasoned that, as with the provision at
issue in Havens Realty, § 3604(f)(2) was by its terms not
limited to bona fide purchasers. Id. at 1104. We held that
“[i]nterpreting § 3604(f)(2) to exclude [testers] from
enforcing their right to be free from discrimination
undermines the specific intent of the [Fair Housing Act
Amendments], which is to prevent disabled individuals from
feeling as if they are second-class citizens.” Id.

    Only the Tenth and Eleventh Circuits have considered in
published opinions whether “tester standing” is viable under
Title III of the ADA. The Eleventh Circuit reasoned in
Houston that nothing in the text of 42 U.S.C. § 12182
constrains the statutorily created right “to be free from
disability discrimination in the enjoyment of [a] facility”
based on a plaintiff’s motive for accessing the facility.
733 F.3d at 1332. Indeed, the court observed, § 12182(a)
states that “[n]o individual shall be discriminated against on
the basis of disability,” much like the prohibition against
misrepresenting the availability of housing to “any person”
in Havens Realty. Houston, 733 F.3d at 1332 (alteration in
original). The court also noted that the ADA’s enforcement
provision, § 12188, provides that “‘any person who is being
subjected to discrimination on the basis of disability’ may
bring suit,” exactly tracking the “any person” language of
Havens Realty. Id. at 1332–33 (quoting 42 U.S.C.
§ 12188(a)(1)) (alteration in original). Finally, the Houston
        CREEC V. HOSPITALITY PROPERTIES TRUST                 15

court pointed out that Congress knows how to limit standing
to sue under discrimination statutes to certain groups of
people, having done so both in the FHA, see 42 U.S.C.
§ 3604(a) (requiring “bona fide offer” to rent or purchase in
order to bring suit), and Title III of the ADA, see 42 U.S.C.
§ 12182(b)(1)(A)(iv) (limiting suits for some actions to
“clients or customers of the covered public
accommodation”), but that it chose not to do so in
§ 12182(a). Houston, 733 F.3d at 1333. Accordingly, the
court reasoned, a plaintiff’s status as a tester does not deprive
her of the right to sue for injunctive relief under § 12182(a).
Id. at 1332–34.

    The Tenth Circuit has also held that tester standing is
viable under Title III of the ADA. Colo. Cross Disability
Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1210–11
(10th Cir. 2014). The Colorado Cross court noted that “Title
III provides remedies for ‘any person’ subjected to illegal
disability discrimination.” Id. at 1211 (quoting 42 U.S.C.
§ 12188(a)). Thus, it concluded that “anyone who has
suffered an invasion of the legal interest protected by Title
III may have standing, regardless of his or her motivation in
encountering that invasion.” Id.

    We also conclude that motivation is irrelevant to the
question of standing under Title III of the ADA. The Named
Plaintiffs’ status as ADA testers thus does not deprive them
of standing.

    4. Injury is alleged in the operative complaint.

   Citing the general rule that standing is determined “at the
time the action commences,” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000),
HPT argues that two of the three Named Plaintiffs, Goldkorn
and Reiskin, lack standing because they failed to include the
16      CREEC V. HOSPITALITY PROPERTIES TRUST

factual bases for their allegations in the original complaint.
However, “the proper focus in determining jurisdiction are
the facts existing at the time the complaint under
consideration was filed.” Northstar Fin. Advisors Inc. v.
Schwab Invs., 779 F.3d 1036, 1044 (9th Cir. 2015) (internal
quotation marks omitted). The First Amended Complaint
was the complaint under consideration when the district
court assessed standing, and it remains operative. Goldkorn
and Reiskin adequately allege in that complaint that they
were injured by HPT hotels’ failure to accommodate their
disabilities. Accordingly, HPT’s argument fails.

B. The harm suffered by the Named Plaintiffs is
   redressable.

     HPT also contends that the district court erred in finding
that CREEC has standing because the Named Plaintiffs’
injuries are not redressable, given that it would be impossible
for a court to fashion a class-wide injunction. However, this
is just a reiteration of HPT’s view of the merits of CREEC’s
claims. A plaintiff need only show that “a favorable decision
will relieve” her injuries. Larson v. Valente, 456 U.S. 228,
243 n.15 (1982). The Named Plaintiffs have requested that
the court fashion an injunction mandating that the HPT
hotels comply with the ADA. If the Named Plaintiffs were
to prevail and receive their requested relief, then their
injuries would be redressed. They have therefore satisfied
the redressability requirement, whether or not they are
correct on the merits.

                             IV.

    A district court’s order denying class certification is
reviewed for abuse of discretion. Jimenez v. Allstate Ins.
Co., 765 F.3d 1161, 1164 (9th Cir. 2014). Assuming the
district court has applied the correct legal standard, the
        CREEC V. HOSPITALITY PROPERTIES TRUST                 17

reviewing court may set aside its decision only if the court’s
reasoning was “illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.”
Id.

    A party seeking class certification must demonstrate that
(1) “joinder of all members is impracticable,” (2) “there are
questions of law or fact common to the class,” (3) the named
plaintiffs’ claims or defenses are typical of those of the class,
and (4) “the representative parties will fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a).

    If a party succeeds in establishing all four of the 23(a)
elements, it must then satisfy one of the three requirements
of Rule 23(b). CREEC relies on Rule 23(b)(2), which
requires a showing that “the party opposing the class has
acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief . . . is appropriate
respecting the class as a whole.” CREEC contends that
injunctive relief is appropriate because HPT has failed to
ensure the provision of equivalent shuttle services at its
hotels, and because the district court could conceivably
instruct HPT to implement uniform policies or practices to
comply with the ADA.

    The district court denied CREEC’s class certification
motion, concluding that CREEC failed to demonstrate either
commonality or typicality. Fed. R. Civ. P. 23(a)(2)–(3). It
also held that CREEC failed to satisfy the requirements of
Rule 23(b) because the injunction it sought would have been
impermissibly vague, nothing more than “a bare injunction
to follow the law.” Parsons v. Ryan, 754 F.3d 657, 689 n.35
(9th Cir. 2014).

    Rule 23(a)(2) requires “a common contention . . . of such
a nature that it is capable of classwide resolution.” Wal-Mart
18       CREEC V. HOSPITALITY PROPERTIES TRUST

Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A
contention is common to all members if “determination of
its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Id.

    HPT—a REIT—owns some 302 hotels across the United
States. CREEC has alleged that 142 of these hotels operate
shuttle services in a manner that violates the ADA.
However, HPT does not itself operate the hotels. To enjoy
tax benefits under statute, REITs must, among other things,
remain passive investors and delegate the management of
particular facilities. 26 U.S.C. § 856(d)(7). Accordingly,
HPT employs various professional management companies
that are “eligible independent contractors” to operate the
hotels it owns. An “eligible independent contractor” is a
person or corporation that is “actively engaged in the trade
or business of operating qualified lodging facilities,” and
that does not control more than 35 percent of the REIT’s
shares or voting power. 3 26 U.S.C. §§ 856(d)(3), 856(d)(9).
Although HPT’s agreements with the management
companies require the latter to “comply with all laws in their
fulfillment of their management agreement obligations,”
those agreements also stipulate that the management
companies “shall have sole, exclusive and uninterrupted
control over the operation of the Hotels.” HPT “does not set
or provide the Management Companies with any uniform

3
  HPT has contracted its hotel operations out to only a handful of
independent operators. According to its website, its 500 hotels are
operated by six eligible independent contracting firms, including such
household names as Wyndham and Hyatt.                  Portfolio, HPT,
http://www.hptreit.com/portfolio/properties/default.aspx (last visited
June 28, 2017). Presumably these managers maintain control over the
properties they have contracted to manage, could themselves be named
as defendants in separate class actions, and could ultimately be held
responsible for any discriminatory practices.
        CREEC V. HOSPITALITY PROPERTIES TRUST              19

policy or plan regarding the operation of shuttle or
transportation services at its hotels.” Thus, it is the
management companies, not HPT, that decide whether to
offer local transportation services and that set the terms on
which those services operate.

    HPT argues that there can be no common question
regarding the operation of its hotels as a matter of law,
because federal law requires HPT to delegate operating
authority to independent contractors if it wishes to maintain
its REIT status and the tax benefits that flow therefrom. See
26 U.S.C. § 856(l)(3)(A). However, the district court held
that the fact that HPT lacks a specific and uniform policy to
ensure ADA compliance at its hotels defeated commonality,
regardless of HPT’s reasons for lacking such a policy. The
court reasoned that, absent a legal duty to adopt specific
policies to comply with the ADA, “it is unclear how HPT’s
admitted lack of a policy regarding the operation of shuttle
or transportation services could serve as the ‘glue’ holding
together Plaintiff’s claims.” Id. (citing Wal-Mart, 564 U.S.
at 352). Given that there was no “common offending
policy,” the court held, “proving that each of the 142 hotels
violated the ADA would require 142 trials within a trial.” Id.

    The district court did not abuse its discretion in finding
that the class lacked commonality. The court correctly found
that HPT did not have a policy regarding how its eligible
independent contractors had to comply with the ADA.
CREEC insists that HPT maintained an unwritten, de facto
policy of non-compliance that resulted in widespread ADA
violations. See, e.g., Jimenez, 765 F.3d at 1165–66 (finding
commonality based on alleged unofficial policy of
discouraging employees from reporting overtime).
However, CREEC has not alleged any facts that would
support this theory. On the allegations in the amended
20          CREEC V. HOSPITALITY PROPERTIES TRUST

complaint, HPT has done nothing to discourage its
contractors from complying with the ADA. Indeed, HPT’s
contracts require hotel operators to comply with applicable
federal and state laws. This is a policy of delegation, not of
non-compliance. While commonality may be established
based on a “pattern of officially sanctioned . . . [illegal]
behavior,” Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir.
2011), merely pointing to a pattern of harm, untethered to
the defendant’s conduct, is insufficient.

    Nor did the district court abuse its discretion in finding
that the factual issues regarding alleged ADA violations are
significantly different at the various hotels. 4 There is no
evidence of a single, “general policy of discrimination” that
could serve as a common issue. Wal-Mart, 564 U.S. at 352–
53. A practice may indeed be evidence of a systematic
policy, see, e.g., Jimenez, 765 F.3d at 1165–66 & n.5, but it
is undisputed that HPT, pursuant to its contracts, does not
participate in the management and operation of the hotels.
Absent any allegation that HPT somehow discourages its
contractors from complying with the ADA, CREEC cannot

4
    Specifically, the district court found that:

            While some of the hotels contacted by the Named
            Plaintiffs are alleged to have not offered any
            wheelchair-accessible transportation at all, others are
            alleged to have offered wheelchair-accessible
            transportation, but required guests to cover the costs.
            Still other hotels are alleged to have required at least
            two days advance notice to arrange wheelchair-
            accessible transportation for a guest, whereas
            nondisabled guests were required to provide less
            notice.

Civ. Rights Educ. & Enforcement Ctr., 317 F.R.D. at 101 n.4 (citations
omitted).
        CREEC V. HOSPITALITY PROPERTIES TRUST                 21

establish a pattern of discrimination orchestrated by HPT, as
it must in order to establish a question of fact common to its
claims against HPT.

    CREEC tried to avoid this conclusion at oral argument
by insisting that HPT has a “nondelegable duty” to comply
with the ADA specifically. Nondelegable duty is a tort
concept associated with vicarious liability theories.
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 57 cmt. b (Am. Law Inst. 2012).
Contrary to CREEC’s contention, however, the concept
“does not mean that an actor is not permitted to delegate [an]
activity to an independent contractor.” Id. Rather, it means
that an actor “will be vicariously liable for the contractor’s
tortious conduct in the course of carrying out the activity.”
Id. Even if HPT would be vicariously liable for ADA
violations by its hired contractors, we fail to see how this fact
bears on commonality. It would only create a common issue
as to where the financial burden of liability would fall, not
one regarding the question of that liability. While the latter
issue is “central to the validity” of CREEC’s claims, Wal-
Mart, 564 U.S. at 350, the former is not.

    The cases the dissent cites for the proposition that
similarity of the harm to plaintiffs may constitute a common
issue, with nothing more, are inapposite. Those cases all
involved a common policy or practice. See Armstrong v.
Davis, 275 F.3d 849, 863, 868 (9th Cir. 2001) (commonality
satisfied where plaintiffs challenged written policy that
failed to provide for adequate ADA requirements at parole
hearings); Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir.
2010) (commonality satisfied where plaintiffs challenged
practice of holding detainees for longer than six months);
Parsons v. Ryan, 754 F.3d 657, 664, 678 (9th Cir. 2014)
(commonality satisfied where plaintiffs made “detailed
22        CREEC V. HOSPITALITY PROPERTIES TRUST

factual allegations concerning the existence of uniform,
statewide policies and practices in all [Arizona Department
of Corrections] facilities . . . [that] expose all . . . inmates to
a substantial risk of harm”). To the extent the dissent
suggests that HPT has intentionally failed to comply with the
ADA, CREEC has not made such an allegation. Intentional
noncompliance would amount to an unofficial policy of
discrimination—a common issue weighing in favor of class
certification. But a “policy against having uniform . . .
practices” is decidedly not a common issue. Wal-Mart,
564 U.S. at 355.

    CREEC contends that this result gives multiple-facility
owners perverse incentives to vary their operating practices
across facilities or contract out operations to independent
managers. However, this argument rests on an important
unstated premise: that firms will violate the ADA rather than
comply with it, so long as they can avoid class-action suits.
Assessing whether this premise is empirically true lies
beyond judicial competence; altering incentives to comply
with the ADA, beyond judicial authority. We emphasize
that our holding is limited to the issue of class certification
under Rule 23. Whatever the incentives to sue under the
ADA, Rule 23 does not require HPT to manage its properties
in a manner that would facilitate class actions if and when
ADA violations do occur. 5

   Because the district court did not abuse its discretion in
concluding that CREEC failed to meet the commonality
5
  We do not reach HPT’s argument that the ADA does not apply to it
because it is not an “operator” of transportation services at the hotels it
owns. 42 U.S.C. § 12182(b). First, this issue is not before us, because
it goes to the merits, not the issue of class certification. Second, even if
this argument were to bear on class certification, we need not reach it
because we affirm the district court on other grounds.
        CREEC V. HOSPITALITY PROPERTIES TRUST              23

requirement, we need not reach CREEC’s arguments
regarding typicality, remedy, or expert certification.

   AFFIRMED.



MORRIS, District Judge, concurring in part and dissenting
in part:

    I concur in the majority’s determination that CREEC
may rely on the “deterrent effect doctrine” to establish
constitutional standing under the ADA. I also concur in the
majority’s determination that CREEC may possess
constitutional standing where its members visit a facility
solely to test for ADA compliance. I disagree, however,
with the majority’s determination that the district court did
not abuse its discretion in denying class certification under
Rule 23. I respectfully dissent from this portion of the
majority’s opinion.

    A     unanimous       Supreme    Court    upheld     the
constitutionality of the public accommodations provisions of
the Civil Rights Act of 1964 in Heart of Atlanta Motel, Inc.
v. United States, 379 U.S. 241 (1964). The Supreme Court
agreed that Congress possessed the authority to outlaw
discrimination in public accommodations on the basis of
race. Heart of Atlanta Motel, Inc., 379 U.S. at 261–62.
Congress acted again to outlaw discrimination in public
accommodations—this time on the basis of disability.

    Title III of the ADA prohibits discrimination on the basis
of disability “in the full and equal enjoyment of
[accommodations] by any person who owns, leases (or
leases to), or operates a place of public accommodation.”
42 U.S.C. § 12182(a). Congress made no distinction
24      CREEC V. HOSPITALITY PROPERTIES TRUST

whether the owner was a natural person, a partnership, a
corporation, a REIT, or any other type of structure allowed
under the law. Congress outlawed discrimination on the
basis of disability.

     CREEC seeks to root out in a systematic fashion what it
perceives to be discrimination against persons with
disabilities by HPT and other hotel owners. CREEC has
chosen a class action under Rule 23 as its favored vehicle to
accomplish the task. The majority reasons that the lack of a
“common offending policy” followed by the independent
contractors who manage HPT’s hotels “would require
142 trials within a trial” to determine whether each hotel and
its independent contractor manager violated the ADA. The
majority’s conclusion will permit HPT to avoid for all
practical purposes the consequences of the ADA. CREEC
and other advocates of the rights of the disabled now will be
required to seek equal treatment one motel at a time.

    The majority cites Armstrong, 275 F.3d 849, to support
its determination that merely pointing to a pattern of harm
proves insufficient to satisfy Rule 23. In fact, the Ninth
Circuit in Armstrong affirmed class certification for a group
of prisoners and parolees who suffered from six different
categories of disability, including mobility impairments. Id.
at 854. The plaintiffs alleged that multiple provisions of
California’s policies and practices during its parole and
parole revocation hearing proceedings, at numerous
facilities across the state, discriminated against them on the
basis of their disabilities. Id.

    The Board argued on appeal that the wide variation in
the nature of the particular class members’ disabilities
precluded a finding of commonality. The Board contended
that separate representative lawsuits should have been filed
by the hearing impaired, the vision impaired, the
        CREEC V. HOSPITALITY PROPERTIES TRUST               25

developmentally impaired, the learning impaired, and the
mobility impaired. We disagreed. We noted that plaintiffs in
civil rights litigation satisfy the commonality requirement
“where the lawsuit challenges a system-wide practice or
policy that affects all of the putative class members.” Id. at
868. Individual factual differences among the individual
class members did not preclude commonality where all
suffered “similar harm from the Board’s failure to
accommodate their disabilities.” Id.

    Plaintiffs here all suffer from similar harm based on
HPT’s failure to accommodate their disabilities as required
by the ADA. As recognized in Armstrong, whether one hotel
provides no van service for people with mobility
impairments, while another hotel charges extra for van
service for people with mobility impairments proves
irrelevant to the issue of class certification. Whether all of
the putative class members suffer from the failure of HPT’s
hotels to accommodate their disabilities as required by the
ADA instead should drive the analysis. Id.

    The Ninth Circuit has acknowledged that the “existence
of shared legal issues with divergent factual predicates”
proves sufficient to satisfy Rule 23’s commonality
requirement. Rodriguez v. Hayes, 591 F.3d 1105, 1123 (9th
Cir. 2010). Rodriguez reversed the district court’s denial of
class certification of claims filed on behalf of detainees held
without bond hearings pursuant to “general immigration
statutes.” Rodriquez, 591 F.3d at 1113. The government
opposed class certification on the ground that class members
suffered detention for different reasons and under the
authority of different statutes. Id. at 1122. We applied the
commonality requirement “to look only for some shared
legal issue or a common core of facts.” Id. We determined
that the commonality existed in the “constitutional issue at
26      CREEC V. HOSPITALITY PROPERTIES TRUST

the heart of each class member’s claim for relief.” Id. at
1123. The denial of equivalent transportation in violation of
the ADA stands at the heart of CREEC’s claims for relief.
This shared legal issue satisfies the commonality
requirement as applied in Rodriguez, 591 F.3d at 1122.

    With respect to typicality, Armstrong again proves
instructive. The plaintiffs satisfied the typicality requirement
based on their same injury: “a refusal or failure to afford
them accommodations as required by statute.” Armstrong,
275 F.3d at 869. In the case of mobility impaired persons,
their injuries lied in their “inability to overcome the physical
barriers to attendance” at the hearings. Id. As a result, all of
the class members suffered the deprivation of services
provided by the Board. Id., citing 42 U.S.C. § 12132. It
mattered not that one Board facility may have failed to
provide van transportation for mobility impaired prisoners,
while another Board facility may have failed to provide
hearing or translation assistance for hearing impaired
prisoners. It mattered that the Board failed to provide the
accommodations required by law. Armstrong, 275 F.3d at
869. The Ninth Circuit in Rodriguez, 591 F.3d at 1124,
likewise concluded that the fact that the government
detained putative class members under different statutes and
that some putative class members stood at different points in
the removal process failed to defeat the typicality
requirement. All putative class members suffered from the
same practice of prolonged detention while in immigration
proceedings. Id.

    CREEC suffers from a similar alleged deprivation of
transportation services provided by HPT’s hotels. Plaintiffs
allege that HPT’s hotels have refused or failed to afford them
the accommodations required by the ADA. Parsons v. Ryan,
754 F.3d 657, 672 (9th Cir. 2014), upheld class certification
        CREEC V. HOSPITALITY PROPERTIES TRUST            27

of Eighth Amendment health care and conditions-of-
confinement claims brought by “[a]ll prisoners who are now,
or will in the future be, subjected to the medical, mental
health and dental care practices of the [Arizona Department
of Corrections].” A broader and more diverse group of
claims seems difficult to contemplate. Arizona could not
contemplate a more diverse group of claims as it argued that
“Eighth Amendment healthcare and conditions-of-
confinement claims are inherently case specific and turn on
many individual inquiries.” Parsons, 754 F.3d at 675. The
Ninth Circuit determined instead that alleged policies and
practices of statewide applications “expose all inmates in
ADC custody to a substantial risk of serious harm.” Id. at
676. We too should recognize that the alleged practices of
HPT’s hotels in failing to comply with the equivalent
transportation requirement of the ADA exposes CREEC and
its members to a substantial risk of serious harm.

    HPT’s decision to establish a REIT as its preferred
ownership structure should not shield HPT from its alleged
systematic effort to evade the equivalent transportation
requirements of the ADA. The majority’s conclusion that
CREEC’s claims would require 142 mini trials within a trial
should defeat class certification allows HPT to shirk its
responsibilities as the owner under the ADA. I believe that
CREEC has satisfied the commonality and typicality
requirements of Rule 23, as analyzed by the Court in
Armstrong, Rodriguez, and Parsons.
