Creating Precedent in Sex Trafficking Litigation

Photo Credit: https://simonlawpc.com/missouri-laws-work-to-combat-sex-trafficking-at-hotels-other-tourist-spots/ (last visited on Nov. 10, 2020).

Written By: Landon Whatley
Student Materials Editor, American Journal of Trial Advocacy

          Earlier this year, I wrote a blog post giving a brief overview about sex trafficking litigation against hotels and motels circulating the United States.[i]  Section 1595 of the Trafficking Victims Protection Reauthorization Act (“the Act”) provides a private right of action for sex trafficking victims against the traffickers and those who knowingly financially benefited or received any value from the trafficking.[ii]  At the time of my first post, the Judicial Panel on Multi-district Litigation recently denied transfer of twenty-one different actions in twelve different districts to a centralized location.[iii]  The plaintiffs in all of the actions alleged to be victims of sex trafficking in hotels and motels all across the United States.[iv]  There were forty-five responding defendants, including world renown hotel chains such as, “Best Western, Choice, Extended Stay America, Hilton, Hyatt, Inter-Continental, Marriot and Wyndham.”[v] These lawsuits stretched from coast to coast, from Georgia to California.[vi]

          The request to consolidate to a single venue was spear headed by six of the plaintiffs; however, not all of the plaintiffs in the twenty-one actions supported the centralization.[vii]  Additionally, two amici briefs were written to the panel, one in support and one in opposition of the consolidation.[viii]  The Amici in support of the consolidation argued that it could “turn[] what might have been a local dispute into a national affair” by uniting victims, pooling their resources, reducing re-traumatization, limiting individualized media attention, and even providing greater “leverage” against the corporations.[ix]  Like the tobacco industry, the Amici in support of consolidation felt that the hotel industry has held itself out as responsible corporate leaders in the media and made false promises of safety—to survivors’ detriment.”[x]

          On the contrary, not all victims or anti-sex trafficking organizations favored the idea of centralization.  Amici in opposition to centralization felt that the victims, communities, and local organizations held the most interest in the sex trafficking litigation occurring in the places where the litigation can spark the most change.[xi]  Amici in opposition argued that keeping litigation local could “produce local deterrents.”[xii]  The individuality of each victim and her circumstances and goals are unique and need to be recognized as such.[xiii]  Further, the Amici in opposition feared the potential of settlement, stating “[a] global settlement with the ‘hotel industry’ goes against the purpose of the TVPRA—empowering survivors—because survivors harmed in hotels would be forced to either enter a global settlement with the ‘industry’ or not utilize the federal remedy at all.”[xiv]

          In February, we saw that centralization was ultimately denied.[xv]  The panel believed “that centralization [would] not serve the convenience of the parties and witnesses or [] the just and efficient conduct of the litigation.”[xvi]  Further, while the plaintiffs argued that they all “were victims of commercial sex trafficking at one or more hotels, that defendants knew or should have known that plaintiffs were being trafficked, and that defendants participated and knowingly financially benefited by renting rooms to the alleged traffickers in violation of the TVPRA,” most of the trafficking occurred at different hotels under different owners and management teams in different cities.[xvii]  The trafficking fell under different ventures, at different times, and with different witnesses and indicia.[xviii]  Thus, the motion for centralization was denied for the lack of “common factual questions” as required by 28 U.S.C § 1407.[xix]

          The panel seemed to agree with the Amici in opposition that under the seemingly similar, yet vastly different circumstances, “[t]rying to create a one-size-fits-all solution to serve uniquely traumatized sex trafficking survivors is inherently impossible.”[xx]  While the MDL consolidation was denied, the litigation did not stop there.  The cases were sent back to their respective venues to be litigated.  So, where are some of these cases now?  While some have been dismissed and some are still pending or undergoing litigation, one thing is clear, in an area with very little precedent for courts to follow, courts have done what they do best: disagree.

          For claims to be correctly stated under the § 1595(a) beneficiary theory, a plaintiff “must allege facts beyond mere conclusions . . . to plausibly infer [defendant] (1) ‘knowingly benefited’ financially or . . . receiv[ed] anything of value’; (2) from participation in a venture; (3) but ‘knew or should have known has engaged in’ sex trafficking.”[xxi]  The first element has seen little discourse throughout the districts.  Many courts have agreed in the litigation seen thus far that revenue from renting hotel rooms to traffickers is sufficient enough to establish a “financial benefit[ing]” relationship between the hotels and traffickers.[xxii]

            The second element, whether defendants “knew or should have known” of the occurrence of sex trafficking in the hotel has not been as easy to “plausibly infer.”  From traffickers and hotel owners’ exchanges of “high-fives” to a single visit from first responders,[xxiii] the known or should have known is not always clear.  Sometimes, the allegations lie in the middle; sometimes the alleged sex trafficking signs lack evidence to prove that the defendant hotel actually knew but are enough to show it “should have known.”[xxiv]  But, this leads one to ask then what is enough to show they knew or should have known?  Courts have looked to a variety of signs as indicators of human trafficking, including the following: requests for an exit room, requests for excess condoms, requests for lingerie, sex paraphernalia left behind, prolonged periods of hotel stay, men coming and going from the rooms at odd hours, noticeable bruising, refusal of housekeeping, no eye contact, rooms paid for in cash, women checking in with little to no belongs, and even cries to hotel employees for help.[xxv] 

          While proving the hotel knew or should have known element is not as clear cut as the first element of financial benefit, the third element, however, is where the district courts are developing a split; a notable amount of district courts have reached different holdings in these cases.[xxvi]  This active controversy hinges on the analysis of the “participation in a venture” of sex trafficking element.  Do hotels have to commit an overt act in furtherance of the sex trafficking or with a common purpose with the trafficking to have participated in the venture?

          The District Court for the East District of Pennsylvania has held that while it does not construe the Act to require hotels to “affirmatively stop the trafficking, . . . [g]iven [the hotels]  physical proximity as the venue for the trafficking, hotels uniquely may have more knowledge than car rental or airplane businesses, or even lawyers and accountants, who may be paid from the trafficking proceeds.”[xxvii]  This court concluded that Congress, in “amending the Act to include a civil remedy provision, . . . [when] applied to a hotel where there is a direct connection between a rental fee for the room where the trafficking is effected.”[xxviii]  Thus, under the known or should have known element, an overt act or evidence of such is not necessary as it allows for constructive knowledge.[xxix]

          On the other end, in Noble v. Weinstein, some evidence of participating in sex trafficking must be shown, “[p]laintiff[s] must allege specific conduct that furthered the sex trafficking venture.”[xxx]  In a parallel analysis, the United States District Court for the Northern District of Georgia–granting the hotel defendants’ motions to dismiss—stated that, “[a]ssociation alone cannot establish liability; instead, knowledge and ‘some participation in the sex trafficking act itself must be shown.’”[xxxi]

          Absent of any precedent of controlling authority, district courts have had to conclude on their own accord—with many reaching very different conclusions in sometimes very similar cases.  These cases, many of which remain undecided, are setting the precedent for sex trafficking cases to come.  For now, America will be watching the courts as they determine the future for litigation of sex trafficking cases across the county.


[i] Landon Whatley, Enough is Enough: Hotels and Motels Profiting from Sex Trafficking Must Stop Here, Cumb. Am. J. Trial Advoc. Blog, (Mar. 2, 2020), https://cumberlandtrialjournal.com/2020/03/02/enough-is-enough-hotels-and-motels-profiting-from-sex-trafficking-must-stop-here/.

[ii] See 18 U.S.C. § 1595 (2018). See also Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2878 (current version at 18 U.S.C.A. § 1595 (West 2019)).

[iii] In re hotel Industry Sex Trafficking Litigation, 433 F. Supp. 3d 1353, 1354 (J.P.M.L. 2020).

[iv] Id.

[v] Id.

[vi] Id. at 1355.

[vii] Id. at 1354.

[viii] Id. at 1354, n. 2.

[ix] Amicus Brief in Support of Consolidated Pretrial Proceedings at 1-6, In re hotel Industry Sex Trafficking Litigation, 433 F. Supp. 3d 1353 (J.P.M.L. 2020) (MDL No. 2928). Amici in support of centralization were: Awake, Empower Her Network More Too Life, Inc., National Center on Sexual Exploitation, World Without Exploitation, The West Florida Center for Trafficking Advocacy DBA Justice Restoration Center, and Trafficking Law center.

[x] Id. at 11.

[xi] Amicus Brief in Opposition to Motion for Transfer of Actions to the Southern District of Ohio at 1, In re hotel Industry Sex Trafficking Litigation, 433 F. Supp. 3d 1353 (J.P.M.L. 2020) (MDL No. 2928). Amici opposing centralization were: 4Sarah, Divas Who Win Freedom Center, Georgia Cares, House of Cherith, House of Hope, International Human Trafficking Institute, Out of Darkness, Rescuing Hope, Street Grace, Sunrise Ministries, Wilbanks Child Endangerment and Sexual Exploitation Clinic, and youthSpark. Amici supporting centralization are: Awaken, Empower Her Network, More Too Life, Inc., National Center on Sexual Exploitation, World Without Exploitation, Justice Restoration Center, and Trafficking Law Center.

[xii] Id. at 4.

[xiii] Id.

[xiv] Id. at 11.

[xv] In re hotel Industry Sex Trafficking Litigation, 433 F. Supp. 3d at 1357.

[xvi] Id. at 1355.

[xvii]Id.

[xviii]Id.

[xix]Id.

[xx] Amicus Brief in Opposition to Motion for Transfer of Actions to the Southern District of Ohio at 19.

[xxi] A.B. v. Marriott International, Inc. 455 F. Supp. 3d 171, 181 (E.D. Penn. 2020) (quoting M.A. v. Wyndham Hotels & Resorts, Inc. 425 F. Supp. 3d 959 (S.D. Ohio 2019)).

[xxii] See id. (concluding that the “hotel defendants rented rooms to the trafficker is a financial benefit from a relationship with the trafficker sufficient to meet section 1596(a)”).

[xxiii] Ricchio v. McLean, 853 F.3d 553, 556 (1st Cir. 2017); Lawson v. Rubin, No. 17-cv-6404 (BMC), 2018 WL 2012869, at *1 (E.D.N.Y. Apr. 29, 2018).

[xxiv] See A.B., 455 F. Supp. 3d at 184 (recalling the decisions in M.A. v. Wyndham Hotels & Resorts, that the “allegations [were] somewhere in between” the high-fives and the 911 calls).

[xxv] A.B., F. Supp. 3d at 18; Doe v. Rickey Patel, LLC, No. 0:20-60683-WPD-CIV-DIMITROULEAS, 2020 WL 6121939, at *1 (S.D. Fla. Sept. 30, 2020).

[xxvi] See A.B., 455 F.Supp.3d at 181 (Of the twenty-one cases submitted to the MDL panel, “three cases from the United States District Court for the Southern District of Ohio, and one case from the United States District Court for the for the Western District of Washington denied motions to dismiss by the hotel defendants and four cases from the United States District Court for the North District of Georgia granted motions to dismiss without prejudice by the hotel defendants” and the other cases either went answered or are still pending.).

[xxvii] Id. at 182.

[xxviii] Id. at 192.

[xxix] See id. (“The 2008 Amendment . . . introduce[d] the ‘should have known’ language in the civil liability provision, thereby adding a constructive knowledge alternative to the exiting actual knowledge standard.”).

[xxx] Noble v. Weinstein, 335 F. Supp. 3d 504, 524 (S.D. N.Y. 2018).

[xxxi] Doe 1 v. Red Roof Inns, Inc., No. 1:19-cv-03840-WMR, 2020 WL 1872335, at *3 (citing Noble, 335 F. Supp. 3d at, 524) (relying on the analysis of the criminal liability analysis of venture).

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