govinfo:USCOURTS-ohsd-2_23-cv-03459-1

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JANE DOE (R.A.), an individual, :
: Case No. 2:23-cv-3459
Plaintiff, :
: Chief Judge Algenon L. Marbley
v. :
: Magistrate Judge Elizabeth P. Deavers
BEST WESTERN INTERNATIONAL, :
INC., et al., :
:
Defendants. :

OPINION & ORDER

This matter is before this Court on Defendant Best Western International’s (“BWI” or
“Best Western”) Motion to Dismiss. (ECF No. 19). For the following reasons, Defendant’s Motion
is hereby DENIED.
I. BACKGROUND
This case arises under the Tr afficking Victims Protection Reauthorization Act (“TVPRA”),
18 U.S.C. § 1595(a). Plaintiff R.A. alleges she met her trafficker s when she was seventeen and
that for at least eight months, in 2012 and 2013, she was trafficked for sex at several hotels in the
Columbus Area, including the Columbus Best Western. (ECF No. 11 ¶¶ 22, 26). Plaintiff alleges
that her “sexual exploitation repeatedly occurred in rooms of the Columbus Best Western and was
facilitated by Best Western and BW Franchisees.” ( Id. ¶ 27). She also alleges that “Defendants
failed, at all levels, to take appropriate action in response to their knowledge of widespread and
ongoing human trafficking in their hotels,” and that “they have continued financially benefiting by
providing venues for the sexual exploitation of victims like R.A.” (Id. ¶ 48).
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According to R.A., each stay at the Best Weste rn raised “red flags,” that should have been
obvious to staff, including, but not limited to: “constant and heavy foot traffic in and out of R.A.’s
room involving men who were not hotel guests”; men “entered through the lobby or through a side
door,” which staff left unlocked “once R.A.’s trafficker began operating” there; “R.A., a teenager,
shared a room with her trafficker, who was deca des older, and another vi ctim”; while one of the
victims was “seeing a john, the other two would wait in the lobby or pool area,” which hotel staff
permitted until the early morning hours; “R.A.’s trafficker was making payments to hotel staff to
keep quiet about the traf ficking activity and allow it to continue”; “[r] ooms were paid for with
cash or prepaid cards”; and there were “effe cts on her appearance, demeanor, movements
throughout the hotel, and her interactions with her tr afficker, hotel staff, and others,” such that
staff would have been on notice that she was “being continually subjected to coercion, control, and
exploitation.” (Id. ¶¶ 28, 70). She also explai ns that her trafficker used the hotel’s Wi-Fi to post
advertisements for the sale of her body. (Id. ¶ 79(d)).
Plaintiff now seeks to hold BWI liable as a be neficiary of its participation in commercial
ventures that it knew, or should have known, violated the TVPRA. Plaintiff commenced this action
in October 2023, (ECF No. 1), and filed an Amended Complaint in December 2023 (ECF No. 11).
Two weeks later, Defendant filed a Motion to Dismiss. (ECF No. 19). Plaintiff responded, and
Defendant replied. (ECF Nos. 38; 44). The Motion is now ripe for review.
II. STANDARD OF REVIEW
This Court may dismiss a cause of action und er Federal Rule of Civil Procedure 12(b)(6)
for “failure to state a claim upon which relief can be granted.” Su ch a motion “is a test of the
plaintiff’s cause of action as stated in the comp laint, not a challenge to the plaintiff’s factual
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allegations.” Golden v. City of Columbus, 404 F. 3d 950, 958–59 (6th Cir. 2005). This Court must
construe the complaint in the light most favorable to the non-moving party. Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F. 3d 430, 434 (6th Cir. 2008). If more than
one inference may be drawn from an allegation, this Court must resolve the conflict in favor of the
plaintiff. Mayer v. Mylod , 988 F. 2d 635, 638 (6th Cir. 1993). This Court cannot dismiss a
complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle [her] to relief.” Id. The Complaint
should also be read as a whole, even if a specific alleged fact read in isolation appears meaningless.
Ricchio v. McLean, 853 F.3d 553, 557 (1st Cir. 2017).
III. LAW & ANALYSIS
A. Improper Party
Defendant BWI argues that it is an improper pa rty to this action because it is not a parent
company for BWI-branded hotels, which are inde pendently owned and operated. (ECF No. 19 at
5-6). Defendant BWI’s franchise agreement (“The Membership Agreement”) states in relevant
part:
The relationship of Best Western to its members is one of an independent
contractor. Neither party has the power to oblig ate or bind the ot her in any way.
No relationship of partners, joint ventures or agents is created. BEST WESTERN
ONLY PROVIDES SERVICES AS DIRECTED BY THE MEMBERSHIP. BEST
WESTERN HAS NO CONTROL OVE R OR RESPONSIBILITY FOR ANY
DECISION AFFECTING THE EMPLOYM ENT OR SUPERVISION OF ANY
PERSON EMPLOYED IN CONNECTION WITH THE HOTEL.

(ECF No. 19-1 at 4) (emphases added). Based on this language, Defendant BWI maintains that
this Court should dismiss the FA C because the Membership Agreem ent explains that “BWI did
not exercise direct or indirect control over the employees who worked at this Hotel . . . and has no
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responsibility for the Hotel’s ope rations.” (ECF No. 19 at 6). Pl aintiff contends that BWI’s
improper party argument is inappropriate for this st age of litigation, and that that “BWI’s self-
serving statement in its membership agreement disclaiming legal responsibility for the Columbus
Best Western certainly doe s not dispose of its dire ct or vicarious liabil ity under the TVPRA.”
(ECF No. 38 at 7-8).
While this Court can consider BWI’s franch ise Membership Agreement at the Motion to
Dismiss stage, see McLaughlin v. CNX Gas Co., LLC , 639 Fed. App’x. 296, 298 (6th Cir. 2016)
(explaining that courts may “cons ider documents that a defendant attaches to a motion if the
documents are referred to in the Complaint and are central to her claims without converting the
motion to one for summary judgment.”), this Court disagrees with Defendant BWI’s improper
party argument and DENIES its request to dismiss this acti on on that basis. The purpose of a
motion to dismiss is to test “the plaintiff’s cause of action as st ated in the complaint, not [to]
challenge [] the plaintiff’ s factual allegations.” Golden v. City Columbus , 404 F.3d 950, 958-59
(6th Cir. 2005). Plaintiff alle ges that Defendant promulgates policies, procedures, and standards
governing branding, operations, and employee training to which franchisees must adhere, even in
ways that go beyond the terms of the membership agreement. (ECF No. 11 ¶¶ 80, 84-85, 89-101).
It would be improper for this Court to allow a challe nge to these factual allegations at this stage.
Nor can the Membership Agreement be read in is olation because it does not provide this Court
with sufficient information about Defendant BWI’s financial and operational relationship with its
franchisees.
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B. Direct Civil Liability Under the TVPRA § 1595
This Court has undertaken extensive analysis of the issue of civ il liability of hotel
defendants in sex trafficking cases under the TVPRA in seve ral cases with many factual
similarities to this one. See e.g., T.P. v. Wyndham Hotels & Resorts, Inc. , No. 2:21-cv-04933,
2022 WL 17363234 (S.D. Ohio Dec. 1, 2022); A.C. v. Red Roof, Inc., No. 2:19-cv-4965, 2020 WL
3256261 (S.D. Ohio Jun. 16, 2020); Doe S.W. v. Lorain-Elyria Motel, Inc. , No. 2:10-cv-1194,
2020 WL 1244192 (S.D. Ohio Mar. 16, 2020); M.A. v. Wyndham Hotels & Resorts, Inc. , 425 F.
Supp. 3d 959 (S.D. Ohio 2019); H.H. v. G6 Hospitality, LLC, No. 2:19-cv-755, 2019 WL 6682152
(S.D. Ohio Dec. 6, 2019).
The TVPRA has two provisions relevant to this case. Fi rst, the TVPRA provides for
criminal penalties set forth in 18 U.S.C. § 1591:
(a) Whoever knowingly—

(1) in or affecting interstate or foreign commerce, . . . recru its, entices, harbors,
transports, provides, obtains, advertises, maintains, patronizes, or solicits by any
means a person; or

(2) benefits, financially or by receiving anyt hing of value, from participation in a
venture which has engaged in an act described in violation of paragraph (1),

knowing, or, except where the act constituting the violation of paragraph (1) is
advertising, in reck less disregard of the fact, that means of force, threats of
force, fraud, coercion described in subsection (e)(2), or any combination of such
means will be used to cause the person to engage in a commercial sex act, or
that the person has not attained the age of 18 years and will be caused to engage
in a commercial sex act, shall be punished as provided in subsection (b).

18 U.S.C. § 1591(a). Secondly, and central to Plaintiff’s claim against BWI, is the standard
for civil liability under the TVPRA set forth in 18 U.S.C. § 1595:
An individual who is a victim of a violation of this chapter may bring a civil action
against the perpetrator (or whoever knowingly benefits, financially or by receiving
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anything of value from participation in a venture which that person knew or should
have known has engaged in an act in viola tion of this chapter) in an appropriate
district court of the United States and may recover damages and reasonable
attorneys fees.

18 U.S.C. § 1595(a).

As a preliminary matter, this Court has he ld in several cases that § 1595(a) can be a
standalone claim, and civil de fendants need not have committe d the underlying criminal sex
trafficking offense under § 1591. M.A., 425 F. Supp. 3d at 964; H.H., 2019 WL 6682152 at *2
(citing Cong. Research Serv., R40190, The William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (P.L. 110-457): Cri minal Law Provisions, at 16 (Jan. 29, 2009) (the
amendments to the TVPRA “create[ ] civil liability both for those who face criminal liability for
their profiteering and those who do not.”)); Plaintiff A v. Schair, No. 2:11-cv-00145-WCO, 2014
WL 12495639, at *3 (N.D. Ga. Sept. 9, 2014) (the 2008 amendments broadened the parties who
could be sued for trafficking violations from only the perpetrator)). This Court likewise finds that
Plaintiff’s allegation that she is a victim of trafficking under § 1591 is enough to plead sufficiently
that she is “a victim of this chapter” pursuant to § 1595(a) in order to survive a motion to dismiss.
(ECF No. 11 ¶ 8).
This Court analyzes Plaintiff’s direct civil li ability claim under the “beneficiary theory” of
§ 1595(a). The Plaintiff must plead the following in order to survive a Motion to Dismiss under
this theory: (1) the person or entity must “knowingly benefit[], financially or by receiving anything
of value”; (2) from participating in a venture; (3) that the “person knew or should have known has
engaged in an act in violation of this chapter.” § 1595(a). A plai ntiff may satisfy these elements
by showing that “defendant’s own acts, omissions, and state of mind establish each element.” J.L.
v. Best W. Int’l, Inc., 521 F. Supp. 3d 1048, 1060 (D. Colo. 2021).
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1. Knowing benefit
Plaintiff has sufficien tly alleged that Defendants “knowingly benefited” financially from a
venture in violation of the TVPR A. Plaintiff alleges that De fendants profited through renting
rooms to Plaintiff’s traffickers. (ECF No. 11 ¶ 87(a)).
This Court has found on several occasions that “the rental of a room constitutes a financial
benefit from a relationship with the trafficker suffici ent to meet this el ement of the § 1595(a)
standard.” M.A., 425 F. Supp. 3d at 965; see also H.H., 2019 WL 6682152 at *2; see also J.L., 521
F. Supp. 3d at 1061 (concluding that allegations th at a hotel defendant received a percentage of
room revenue where trafficking occurred, was sufficient to meet the knowingly benefited element
under 18 U.S.C. § 1595(a)); Gilbert v. U.S. Olympic Comm., 423 F. Supp. 3d 1112, 1137 (D. Colo.
2019) (finding the forced labor provision of § 1589(b) does not “require[ ] the party to benefit from
the [forced] labor or services for liability to attach”). The same conclusion applies here.
2. Participation in a venture
Plaintiff has also alleged sufficient facts to demonstrat e that Defendant’s conduct
constituted “participation in venture” under § 1595(a). This Court has held that participation in a
venture under § 1595 does not require actual knowledge of trafficking crimes but requires “at least
a showing of a continuous business relationship between the trafficker and the hotels such that it
would appear that the trafficker and the hotels have established a pattern of conduct or could be
said to have a tacit agreement.” M.A., 425 F. Supp. 3d at 970 (citing Jean-Charles, 937 F. Supp.
2d at 288–89); see also G.G. v. Salesforce.com, Inc. , 76 F.4th 544 (7th Cir. 2023) (holding that
“the relevant ‘venture’” under S ection 1595 need not be ‘specifica lly a sex trafficking venture’”
and can be a “‘commercial venture[]’ like running or expanding a business.”); Ricchio, 853 F.3d
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at 555 (finding sufficient allegations that, among other things, the trafficker and hotel owner had
prior dealings); Doe S.W., 2020 WL 1244192, at *6–7 (finding allega tions that defendant hotels
repeatedly rented rooms to indi viduals they should have know n were traffickers based on the
totality of the circumstances, were suffici ent to survive a Rule 12(b)(6) motion); H.H., 2019 WL
6682152, at *4 (same); A.C., 2020 WL 3256261, at *6 (same). Further, participation in a venture
under § 1595 does not require an “overt act.” See e.g., M.A., 425 F. Supp. 3d at 968–69.
Plaintiff alleges that Defendant participat ed in two commercial business ventures. She
argues that BWI formed an ongoing business rela tionship with the tra ffickers themselves by
continuing to rent rooms to them once it should have known about their conduct and by operating
the hotel in a way that enabled sex trafficking there. (ECF No. 38 at 9-11). Plaintiff also contends
that BWI participated in a comm ercial venture with its franchi sees, which “violated the TVPRA
through widespread trafficking at that hotel and by Franchisee’s conduct harboring trafficking
victims and knowingly facilita ting their trafficking.” (Id. at 11). In Plaintiff’s view, Defendant
furthered the enterprise through maintaining the franchise relationship despite at least constructive
knowledge of the trafficking, and by supporting asp ects of operations that it should have known
were facilitating trafficking. (Id.). Defendant leans heavily on Doe #1 v. Red Roof Inns, Inc., 21
F.4th 714 (11th Cir. 2021), which this Court has analyzed several times before, to argue that
Plaintiff fails to “connect the dots” between her trafficking and BWI, a franchisor defendant. (ECF
No. 19 at 9).
Whether Plaintiff has alleged sufficiently the existence of ventures turns on the impact of
a franchisor-franchisee relationship between Defendants and the hotel operators. In Doe #1, the
complaint included allegations that: (1) defendant s licensed their brand to franchisees who paid
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royalties to the defendants and other fees ba sed on a percentage of their room revenue; (2)
defendants received a percentage of the revenue generated from the rooms in which trafficking
occurred; (3) defendants “owned, managed, s upervised, operated, overs aw, controlled the
operation of, and/or were inextricably connected to the renting of rooms” at these hotels; (4)
defendant franchisors investigated incidents of trafficking at th e individual hotels and controlled
training related to spotting trafficking; and (5 ) read online reviews mentioning prostitution and
crime occurring generally at the hotels where plaintiffs were trafficked. Doe #1, 21 F.4th at 726.
On these facts—admittedly similar to the ones sub judice—the Eleventh Circ uit concluded that
plaintiffs failed to allege that “the franchisors participated in a common undertaking involving risk
or profit that violated the TVPRA.” Id. at 726–27.
But this was, in part, because the Eleventh Circuit concluded that plaintiffs had made only
conclusory allegations about the franc hisor’s involvement at the hotels. Id. at 727. A claim is
plausible when it contains “factual content that al lows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. And “[w]here the
participant provides assistance, support, or facilitation to the trafficker through such a ‘continuous
business relationship,’ a court or jury may infer that the participant and trafficker have a ‘tacit
agreement’ that is sufficient for ‘participation’ under Section 1595.” G.G., 76 F.4th at 559. Here,
Plaintiff details at great length the extent of BWI’s control over the property, and therefore,
plausibly alleges that BWI was so intimately involved in the location’s operations that BWI itself
participated in a “continuous business relationship” with Plaintiff’s traffickers. (ECF No. 11 ¶ 80).
Despite the parties’ differing allegations about Defendant’s operational role in the local hotels, it
is not the role of this Court to resolve fact ual disputes at this stage of the litigation. M. L. v.
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Craigslist Inc., No. C19-6153 BHS-TLF, 2020 WL 6434845, at *6 (W.D. Wash. Apr. 17, 2020),
report and recommendation adopted, No. C19-6153 BHS-TLF, 2020 WL 5494903 (W.D. Wash.
Sept. 11, 2020).
And “[k]ey to the court’s reasoning” in Doe #1 “was how the plaintiffs had chosen to define
the alleged venture—specifically as a ‘ sex trafficking ’ venture.” G.G., 76 F.4th at 561-62
(emphasis added). But the alleged venture “need not be ‘specifically a sex trafficking venture.’”
Id. at 554. Instead, it can “be a business whose primary focus is not on sex tr afficking.” Id. In
G.G., for example, plaintiffs alleged that the defendant, Salesforce, provided advice and software
to Backpage, a now-defunct websit e that hosted advertisements posted by the minor plaintiff’s
street-level trafficker. Id. at 548. The Seventh Circuit conc luded that where Backpage had
engaged in multiple violations of § 1591, Salesforce had engaged in a venture in violation of
§_1595 that “was Backpage’s business itself, including the ‘growth,’ ‘expansion,’ and profitability
of that business.” Id. at 554.
Here, Plaintiff argues that Defendant was enga ged in a business venture with its franchisee
that sought to sustain and expand the profitability of the franchise, much like Salesforce sought to
advance Backpage’s business. (ECF No. 38 ¶ 11-13). And, at least for purposes of stating a claim
against BWI, Plaintiff has sufficiently alleged th at the franchisee was enga ged in violations of
§_1591. As relevant here, § 1591 requires the fran chisee to have knowingl y harbored Plaintiff
with at least reckless disregard of the fact that she was being coerced into commercial sex acts.
Plaintiff alleges that her trafficker paid staff to stay quiet about her trafficking. (ECF No. 11 ¶
70(f)). She also alleges that she was indeed coerced, including through threats of violence. ( Id.
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¶¶ 22-23, 25). Therefore, it is at least reasonable to infer that the franchisee acted with reckless
disregard to the fact that R.A. was being coerced into commercial sex.
In sum, Plaintiff has sufficiently alleged th at BWI participated in ventures with both her
traffickers and the franchisee that harbored her.
3. Knew or should have known the ventures violated the TVPRA
Plaintiff has plausibly allege d that BWI at least should have known that the ventures in
which it was engaged were violating § 1591 during their relationship. A defendant cannot be liable
under 18 U.S.C. § 1595(a) unless it “knew or shoul d have known” that the venture from which it
benefitted “has engaged in an act in violation of” the TVPRA. Defendants need not have actual
knowledge of trafficking crimes for liability to attach, as the language of § 1595(a) demonstrates
that constructive knowle dge is sufficient. M.A., 425 F. Supp. 3d at 970 (citing Jean-Charles v.
Perlitz, 937 F. Supp. 2d 276, 288–89 (D. Conn. 2013)).
Defendant contends that Pl aintiff has only alleged a generalized awareness of sex
trafficking in hotels, which is insufficient to hold it liable; it urges that it must have had actual or
constructive knowledge of Plaintiff’s trafficking specifically. (ECF No. 19 at 9- 10). Implicit in
this argument is the position that the knowledge or constructiv e knowledge of hotel staff is
irrelevant to Defendant’s knowledge. Plaintiff responds that the object of the mens rea enumerated
in § 1595 is the illegality of the broader venture, not illegality with respect to the victim, and
separately, that Defendant’s interpretation of “should have known” inappropriately absolves it of
any duty to exercise reasonable di ligence regarding the activities in which it participated. (ECF
No. 38 at 13-14).
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As a threshold matter, this Court declines to erect an impermeable barrier between the
knowledge of hotel staff and BWI’s knowledge at th is early juncture. W ithout the benefit of
discovery, this Court cannot definitively conclude that the knowledge link between franchisor and
franchisee is so tenuous that any knowledge or constructive knowledge possessed by hotel staff is
per se irrelevant to Defendants’ liability. Indeed, this Court has previously held that notice of “the
prevalence of sex trafficking generally at their hote ls,” the failure “to take adequate steps to train
staff in order to prevent its occurrence,” and signs that “should have alerte d staff to [Plaintiff’s]
situation” are sufficient to meet the constructive knowledge requirement. M.A., 425 F. Supp. 3d at
968. Seeing similar allegations in the case at hand, this Court reaches the same conclusion.
Therefore, turning first to staff’s awareness of Plaintiff’s trafficking, this Court is guided
in its analysis by two cases that establish the spectrum on which civil liability under the TVPRA
can be found. In Ricchio v. McLean, the plaintiff alleged that the hotel owner and the trafficker
were working together in a sex trafficking sc heme evidenced by a “hi gh-five” while discussing
“getting this thing going again,” a past business relationship between the two, and allegations that
one of the hotel owners had gone to the victim’s room and “had shown indifference to [plaintiff’s]
obvious physical deterioration.” Ricchio, 853 F. 3d at 555. Plaintiff a lleged that while “in plain
daylight view of the front office of the motel,” her trafficker “kic k[ed] her and force[d] her back
toward the rented quarters wh en she had tried to escape.” Id. The Court concluded that the
defendants “acted, at least, in reckless disregard” of the nature of the venture for purposes of §
1589 and § 1595. Id. at 557.
Conversely, in Lawson v. Rubin, plaintiffs sued Blue Icarus, the owner of a condo that it
leased to Howard Rubin who was procuring women who he then sexually assaulted and abused at
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that location. No. 1:17-cv-6404 (BMC), 2018 WL 2012869, at *2 (E.D.N.Y. Apr. 29, 2018). The
court found the plaintiff’s allegatio ns of one police visit after a fight ensued and one ambulance
sent to the residence in six y ears insufficient to hold Blue Icar us liable under § 1595. The Court
reasoned that even if Blue Icarus had done further investigation following the incidents, it would
not have uncovered any more inform ation about the a lleged trafficking. Lawson, 2018 WL
2012869, at *13–14.
Plaintiff’s allegati ons fall closer to Ricchio than to Lawson. Plaintiff alleges that her stays
at Defendants’ property produced repeated “red flags,” including payment in cash, cash payments,
and large numbers of male visitors. (ECF No. 11 ¶¶ 28, 42). More importantly, Plaintiff alleges
that her trafficker routinely paid off staff to ignore signs of her trafficking and made modifications
in hotel operations to enable her trafficker’s activity. ( Id. ¶¶ 70(b), 70(f)). This Court has
previously concluded that many aspects of Plain tiff’s experience should have alerted staff to her
trafficking, including cash payments from her traffickers, and frequent male guests. See M.A., 425
F. Supp. 3d at 967; see also T.P., 2022 WL 17363234, at *8-9.
Even if the knowledge of on-the-ground hotel staff cannot be imputed to Defendants,
Plaintiff’s allegations ar e sufficient to pass mu ster under the plausibility standard of a 12(b)(6)
motion to dismiss because she al so alleges that the franchisor itself should ha ve known about
trafficking at the Columbus Best Western. Plaintiffs need not allege that Defendant had knowledge
or constructive knowledge with respect to Plaintiff specifically. See G.G., 76 F.4th at 555-57. The
express terms of the statute impose liability for benefiting from a venture that the Defendant knew
or should have known was engaged in violations of § 1591, not violations of § 1591 with respect
to a particular person . See § 1595. And as Plaintiff’s point out, the object of the mens rea
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requirement in § 1595 is the venture’s illegal conduc t, not illegality with re spect to the victim.
(ECF No. 38 at 13).
Defendant argues that Plaintiff fails to allege any facts that indicate they were on notice of
sex trafficking issues at their properties during the relevant period. But Plaintiff posits a persuasive
inferential chain establishing at least constr uctive knowledge against the backdrop of BWI’s
general awareness of sex trafficking in the hotel industry and its hotels. (ECF No. 38 at 15-16).
R.A. argues that BWI knew or should have known about the above-mentioned “red flags”
of trafficking, arising fr om the trafficking of both her an d other earlier and contemporaneous
victims, through monitoring of online reviews, news articles, law enforcement activity, its control
over staff training, and its policy that staff report all suspected criminal activity to BWI. (ECF No.
38 at 16 (citing ECF No. 11 ¶¶ 61-64, 68-70)). A nd in comparable environments, courts have
found failure to implement policies sufficien t to combat a known probl em in one’s operations
constitutes willful blindness or negligence. See Burlington Industries, Inc. v. Ellerth , 524 U.S.
742, 758–79 (1998) (holding where a “supervisor’s se xual harassment is outside the scope of
employment because the conduct was for personal motives,” an employer can still “be liable . . .
where its own negligence is a cause of the hara ssment” because it “knew or should have known
about the conduct and failed to stop it”).
Because this Court must make all reasonable inferences in favor of the Plaintiff, these allegations
pass muster under the 12(b)(6) plausibility standard.
Additionally, the Complaint presents several examples of prostitution-related arrests and
one example of attempte d intervention by an outside organization, aler ting BWI that it “lack[s]
programs to deal with child sexua l exploitation,” prior to Plaintif f’s trafficking that should have
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put BWI on notice of issues within its operation.1 Although it is not clear whether these incidents
involved non-coercive prostitution or sex trafficking, this Court has considered similar allegations
previously and concluded that the plaintiff stated a claim. 2 For example, in T.P. v. Wyndham
Hotels & Resorts, Inc. , this Court considered online review s of the subject hotel that were
submitted a year prior to the end of Plaintiff’s trafficking and complained of “pimps” and a
“prostitution ring.” No. 2:21-CV-04933, 2022 WL 17363234, at *1 (S.D. Ohio Dec. 1, 2022).
There, this Court concluded that T.P.’s “allega tions [we]re sufficient to pass muster under the
plausibility standard of a 12(b)(6) motion to di smiss because she allege[d] that the franchisors
themselves had constructive knowledge of the problem.” Id. at *9. This Court reaches the same
conclusion here.
In sum, it can be tempting to get bogged dow n in minutia when applying the TVPRA, but
upon detached, in-depth contemplati on, it is evident to this Court that Plai ntiff has plausibly
alleged that BWI at least should have known of issues in its operation and, in turn, that the specific
ventures in which it was allegedly engaged were violating § 1591.
* * *
Because Plaintiff’s allegations meet the three-pronged requirement of § 1595, Plaintiff has
sufficiently stated a cl aim that Defendant is directly, civilly liable under the TVPRA. See M.A.
425 F. Supp. 3d at 971–72 (denying motion to dismiss of hotel parent company defendants where

1 Plaintiff explains that “on information and belief, there are additional similar reviews and other customer complaints,
including for the Best Western Columbus, from before 2013 th at are not currently available on the internet.” (ECF
No. 11 ¶ 52).
2 Plaintiff also alleges that “[t]he relationship between a pimp and a prostitute is inherently coercive, and United States
Department of Justice and other agencies and organizations have recognized that most individuals involved in
prostitution are subject to force, fraud, and coercion.” (ECF No. 11 ¶ 37).
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plaintiff pled that defendants controlled employee training, room pricing, provided online booking
platform, and conducted inspections).
C. Vicarious Liability
A plaintiff can also satisfy the elements of § 1595’s beneficiary theory by imputing “to the
defendant the acts, omissions, and state of mind of an agent of the defendant” through indirect or
vicarious liability. J.L., 521 F. Supp. 3d at 1060. The TVPRA, however, does not address the issue
of indirect or vicarious liability; therefore, federal district courts that have adjudicated this issue
must apply common law to fill in the gaps. Norfolk Redevelopment and Hous. Auth. v. Chesapeake
and Potomac Tel. Co. of Va. , 464 U.S. 30, 35–36 (1983) (explaining that the traditional rules of
statutory construction advise that statutes are presumed not to disturb the common law “unless the
language of the statute [is] clear and explicit for this purpose.”); see also In re Nicole Gas Prod.,
Ltd., 581 B.R. 843, 850 (B.A.P. 6th Cir. 2018), aff’d sub nom., Nicole Gas Prod., Ltd. , 916 F.3d
566 (6th Cir. 2019) (explaining that statutes are presumed to embrace the common law extant at
their enactment). In the past, this Court, and othe r district courts, have applied the state common
law of vicarious liability when addressing in direct liability argumen ts under the TVPRA. M.A.,
425 F. Supp. 3d at 971 (applying Ohio agency law); see also A.B., 455 F. Supp. 3d at 194–95
(applying Pennsylvania agency law); S.J., 473 F. Supp. 3d at 158–59 (applying New York agency
law). Since this Court’s ruling in 2019, another di strict court chose to apply the federal common
law of vicarious liability in a TVPRA case. A.B., 484 F. Supp. 3d at 939–40 (citing Ninth Circuit
cases where the court applied the federal common law of agency when the federal statute did not
otherwise provide direction).
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As this Court has previously outlined, the Sixth Circuit has yet to rule on whether the
federal or state common law of vicarious lia bility should be applied under the TVPRA. See e.g.,
T.E. v. Wyndham Hotels & Resorts, Inc., 2024 WL 474400, at *8 (S.D. Ohio Feb. 7, 2024). While
this Court has previously ente rtained arguments for both given the nearly identical analysis
required under federal and Ohio common law, this Court will procee d under a federal common
law analysis of the issue. This approach brings the analysis in line with the Sixth Circuit’s approach
to applying the federal common law of vicarious liability to federal statutes that do not expressly
provide direction on vicari ous liability arguments. See e.g., Marr v. Rife , 503 F.2d 735, 740–41
(6th Cir. 1974) (explaining that in determining the extent of liability of the owner of a real estate
agency for violations of Fair Housing Act by his agent, courts should apply federal law and should
not be restricted by respondeat su perior law or law of vicarious lia bility of the va rious states);
Keating v. Peterson’s Nelnet, LLC , 615 Fed. App’x 365, 371–72 (6th Cir. 2015) (citing In the
Matter of Dish Network, LLC, 28 FCC Rcd. 6574, 6584 (May 9, 2013)) (explaining that the FCC
concluded that defendants may be held vicariousl y liable for statutory vi olations under federal
common law agency principles, including apparent authority and ratification) but cf. Pension
Benefit Guar. Corp. v. Findlay Indus., Inc., et al. , 902 F.3d 597, 611 (6th Cir. 2018) (deciding to
apply state common law to an ERISA contract di spute regarding successor liability because a
federal court may take direction from “the law of the state in which it sits” so long as the standard
used “best comports with the interests served by ERISA’s regulatory scheme,” but explaining that
“as a general matter, the court must look to the federal comm on law and should draw guidance
from state common law only when federal common law does not provide an established standard”).
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1. Agency
The Sixth Circuit relies on the Restatement of Agency when applying the federal common
law of vicarious liability. Johansen v. HomeAdvisor, Inc. , 218 F.Supp.3d 577, 586 (S.D. Ohio
2016). Agency is most commonly defined as the “fi duciary relationship that arises when one
person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the
principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise
consents so to act.” Restatement (Third) of Agency § 1.01 (2006). A defining element of agency
“is the principal’s right to control the agent’s actions” such as “[t]he power to give interim
instructions.” Id. at cmt. f (1); see also Savanna Group, Inc. v. Trynex, Inc., No. 10-C-7995, 2013
WL 4734004, at *5 (N.D. Ill. Sept . 3, 2012) (explaining that “[t] he power to give interim
instruction” is an element that “distinguishes principals in agency relationship from those who
contract to receive services provided by persons who are not agen ts.”). As a result of that power,
“[a] master is subject to liability for the torts of his servants committed while acting in the scope
of their employment.” Burlington Indus. Inc. , 524 U.S. at 755–56 (1998) (quoting Restatement
(Second) of Agency § 219(1) (1957)).
While the mere existence of a franchise does not establish an agency relationship, the
franchise model also does not preclude wholesal e franchisors from vicari ous liability under an
agency theory. Bricker, 804 F.Supp.2d at 623 (“[T]he existe nce of a franchisor-franchisee
relationship between pers ons does not in itself preclude the existence of a principal-agent
relationship between them.”). To determine whether “a principal-agent relationship exists, courts
consider the same factors ‘as in the absen ce of a franchisor-franc hisee relationship.’” Id. (citing
Taylor v. Checkrite, Ltd., 627 F. Supp. 415, 416 (S.D. Ohio 1986)). To succeed under an agency
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theory, Plaintiff must show both: (1) that Defe ndant and its franchisees were in an agency
relationship; and (2) that hotels or hotel staff are plausibly liable under § 1595(a).
Plaintiff alleges that Defenda nts exercised day-to-day control over the franchise property
at issue here, far beyond the c ontrol of a mere fran chise relationship. (ECF No. 11 ¶¶ 100-01).
Plaintiff argues that this include s, among other things: (1) control ling training of hotel staff; (2)
requiring franchisees’ participation in centralized services; (3) requiring detailed record-keeping;
(4) monitoring and auditing the franchise; (5) supervising the hotel through direct access to a real-
time data system; and (6) exerting extensive control over human resources issues like job posting,
benefits, and pay. (Id.). These allegations are sufficient to meet the pleading standards of Federal
Rule of Civil Procedure 8 to de monstrate Defendant’s control over the franchisee properties for
purposes of an agency relationship and vicarious liability, and Defendant’s argument that these
allegations are conclusory falls flat.
Plaintiff alleges that the hot el franchisees themselves committed a wrong to be imputed on
Defendants. See J.L. v. Best W. Int’l Inc. , 521 F. Supp. 3d 1048, 1064-65 (D. Colo. 2021). This
Court applies the three-pronged test established by 18 U.S.C. § 1595—and already used to assess
Defendant’s direct liability—to the hotel franch isees as well: (1) the person or entity must
“knowingly benefit[], financially or by receiving anything of valu e”; (2) from part icipating in a
venture; (3) that the “person knew or should have known has engaged in an act in violation of this
chapter.” § 1595(a).
First, Plaintiff alleges that the franchisees rented rooms to traf fickers and financially
benefited from their tra fficking ventures, thereb y satisfying the first pr ong. (ECF No. 11 ¶ 87).
Second, Plaintiff has alleged suff icient facts that the franchis ee participated in a continuous
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business relationship with Plaintiff’s trackers such that it “p articipated in a venture.” ( Id.). And
third, Plaintiff alleges sufficient facts to demonstrate that employees at the hotel had constructive
knowledge that she was being tra fficked; specifically, that staff would have seen many red flags
pointing toward trafficking. ( Id. ¶¶ 28, 70). Therefore, the benefi ciary theory is satisfied with
respect to Defendants’ franchisee.
2. Joint Employer Status
Much like agency theory, whether two employers are a joint employer often turns on how
much control one exercises over the other. See e.g., Int’l Longshoremen’s Ass’n, AFL-CIO, Local
Union No. 1937 v. Norfolk Southern Corp., 927 F.2d 900, 902 (6th Cir. 1991) (articulating test for
joint employer status under the NLRA as “the interrelation of operations between the companies,
common management, centralized control of labor relations, and common ownership.”); Sanford
v. Main Street Baptist Church Manor, Inc., 327 Fed. App’x 587, 594 (6th Cir. 2009) (adopting the
following test for Title VII joint employer status: “(1) the extent of th e employer’s control and
supervision over the worker, including directions on scheduling and performance of work; (2) the
kind of occupation and nature of skill required, including whether skills are obtained in the work
place; (3) responsibility for the co sts of operation, such as equipm ent, supplies, fees, licenses,
workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5)
length of job commitment and/or e xpectations.”). “While the fact ors this Court must consider
when analyzing both agency and joint employer theo ries of vicarious liability are very similar,
important among those to establish a joint employer theory of vicar ious liability is the control
exercised by the franchisor specific to employment policies.” B.D.G., 2023 WL 5935646, at *10.
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Plaintiff alleges that “Best Western and Defe ndant BW Franchisees shared control of the
terms and conditions of the employment of staff at the subject Columbus Best Western.” (ECF
No. 11 ¶ 99). Defendants argue, however, that Plaintiff fails to allege sufficient employment-
related control over the franchise location, and that the Membership Agreement contradicts
Plaintiff’s allegations. Ultimately, because Plaintiff alleges that Defendant posts all hotel jobs on
their websites, controls employe e training, and provides employee benefits, among other things,
she has sufficiently pleaded a join t employer theory against BWI. A.R., 2022 WL 17741054, at
*11 (finding joint employer theory of vicarious li ability sufficiently pleaded where Plaintiff pled
that Wyndham promulgated “policies, procedures , and standards governing the hiring, training,
retention, and advancement of on-the-ground empl oyees and setting their rates of pay.”). As
discussed above, the Membership Agreement alone cannot resolve these factual questions.
IV. CONCLUSION
For the foregoing reasons, Defe ndants’ Motion to Dismiss is DENIED.
IT IS SO ORDERED.

ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE

DATE: August 16, 2024

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