A federal judge has allowed a sex trafficking plaintiff to proceed with claims against hotel franchise Marriott over allegations that it failed to stop those activities at three of its franchisee hotels in Philadelphia.

U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania on Wednesday, wading into an emerging field of litigation and case law, denied Marriott International's efforts to dismiss the lawsuit on the pleadings.

The opinion in the case, captioned A.B. v. Marriott International, hinged on the interpretation of 2008 amendments to federal anti-trafficking laws allowing for civil liability, and marks the first time a district court under the U.S. Court of Appeals for the Third Circuit has addressed the act.

Marriott, which was represented by Baltimore-based DLA Piper attorney Michael O'Day, argued that it could only be held liable for conduct at its franchisees if it had committed an overt act facilitating the conduct.

But Kearney disagreed, saying the law clearly intended to create liability for those who benefit from activities they "knew or should have known" involved trafficking.

The decision is a win for plaintiffs counsel Jerry Kristal, managing attorney in the Cherry Hill, New Jersey, office of Weitz & Luxenberg.

The plaintiff was identified only by the initials A.B. in the opinion.

"Although A.B.'s amended complaint is not a model of clarity, we do not view it as an attempt to create a new theory of liability on a business failing to affirmatively prevent sex trafficking," Kearney said. "Rather than reading her claims as seeking to impose a duty to prevent trafficking, we read A.B.'s amended complaint as seeking the civil remedy Congress gave victims of sex trafficking against 'whoever knowingly benefits' from participation in a venture the person 'knew or should have known engaged' in a violation of the act."

Kearney's ruling comes as sex trafficking awareness is on the rise, and sex trafficking litigation is on the rise across the country, especially against hotels. His ruling noted that there have already been efforts to form a federal multidistrict litigation focused on sex trafficking claims against hotels, and federal courts in Ohio, Washington and Georgia have already handled similar motions to dismiss in lawsuits against hotel chains.

READ THE OPINION:

According to Kearney's 48-page opinion, from 2009 through 2011 the plaintiff, A.B., was trafficked at three hotels near the Philadelphia airport that were franchised by Marriott.

In arguing that the company should have been aware of the trafficking, Kearney said A.B. alleged there was a "constant stream of male visitors" that went "straight from the main lobby and front doors so that the foot traffic was both voluminous and obvious." He further said A.B. contended her traffickers paid for rooms with prepaid credit cards at least a week at a time, the hotel staff were aware of her presence, the rooms would be "littered with multiple broken objects, used condoms, and other sex paraphernalia" after she left, staff would have seen signs of bruising on her, and would have heard frequent and loud altercations.

Hotel surveillance footage and complaints from other patrons should have created enough red flags to constitute constructive notice that either drug dealing or prostitution was going on, A.B. alleged.

A.B. also argued that Marriott benefited from the trafficking, since the hotel owners paid about 10% of their revenue to the company.

In arguing that Marriott had an agency relationship with the three hotels, A.B. argued that the company had the ability to enforce its standards through period inspections and could terminate its agreement if things were not up to par. She further contended the company handled the online booking, the rewards programs, set wages, made advertising and employment decisions, fixed prices, and shared profits, among other things.

A.B. brought claims under both Pennsylvania's anti-trafficking laws and the federal law, referred to as Section 1595 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, which added civil remedies to existing criminal statutes targeting trafficking.

Marriott had argued that Kearney should follow case law from the Northern District of Georgia, which has found plaintiffs need to show the hotels engaged in an "overt act" facilitating the trafficking. Kearney, however, said he found case law from the Southern District of Ohio, which focused on the "should have known" language, to be more persuasive.

"We are persuaded the clear language of Section 1595 favors the approach taken by Judge [Algenon] Marbley focusing on a hotel's possible civil liability best conforms to Congress's intent amending the act to include a civil remedy provision, at least as applied to a hotel where there is a direct connection between a rental fee for the room where the trafficking is effected," Kearney said. "While these allegations may ultimately be proven untrue or unsupported by evidence, the allegations at the moment to dismiss stage are sufficient to meet the 'knowingly benefited' element of a civil claim."

In an emailed statement, a Marriott spokesman declined to comment.

Neither defense counsel O'Day nor plaintiffs attorney Kristal immediately returned calls seeking comment.