Seyfarth Synopsis: For the second time in four years, the Third Circuit has reversed a trial court's certification of a nationwide Title III class on numerosity grounds, applying a demanding standard that will be hard for plaintiffs to meet in future cases.
The nationwide, corporate-wide class action under Rule 23 has long been a popular tool of the Title III plaintiffs' bar. It's not hard to see why: defendants who find themselves on the wrong end of a class certification order in such cases face the prospect of incurring the costs of investigating and remediating accessibility barriers in dozens, hundreds, or even thousands of store locations across all fifty states. Over the last several years, though, the Third Circuit has shown increasing skepticism of nationwide Title III class actions. In a 2018 case involving alleged excessive slopes in a restaurant chain's parking lots, Mielo v. Steak 'n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018), the Third Circuit warned that Rule 23's numerosity requirement has "real teeth." On June 24, 2022, the court in Allen v. Ollie's Bargain Outlet, Inc. made clear that those "teeth" have real bite.
In Allen, the two named plaintiffs — both wheelchair users — alleged they encountered obstacles blocking the paths of travel through two different Ollie's stores in Pennsylvania they had visited. After their hired investigators found aisle width issues in several more stores, they filed suit seeking certification of a nationwide class of all persons with qualified mobility disabilities who had experienced access barriers in interior paths of travel at any Ollie's store in the United States in violation of Title III.
Rule 23(a) of the Federal Rules of Civil Procedure required the plaintiffs to show, among other things, numerosity – which requirement is presumptively met if plaintiffs could show there are 40 or more class members. But according to the Third Circuit, none of plaintiffs' evidence added up.
To show numerosity, the plaintiffs in Allen introduced three kinds of evidence. First, they presented data from the U.S. Census Bureau's 2018 American Community Survey estimating the number of people with serious difficulty walking or climbing stairs for each zip code with an Ollie's store. The Third Circuit rejected the use of this statistical evidence as a valid basis to prove numerosity, concluding that population estimates "prove little" about the number of wheelchair users, and in any event provided no information about how many disabled individuals had actually patronized an Ollie's store or encountered accessibility barriers there.
Second, the plaintiffs presented evidence of video footage at two Ollie's locations over a seven-day period that captured 16 wheelchair or scooter users. The Third Circuit found this, too, to be insufficient, observing that it would be "speculation" to assume that all wheelchair or scooter users were disabled under the ADA. Moreover, even if that were not so, there was no evidence that the video depicted anyone who had suffered an injury. The court made clear that, for numerosity, a plaintiff's evidence must relate to the "subset of injured customers," not the broader population of disabled persons.
Finally, the plaintiffs introduced evidence purporting to show twelve written accessibility-related customer complaints. Twelve were too few, the court found, either in isolation or when taken in conjunction with the American Community Survey estimates from the Census Bureau. The Third Circuit explained that courts cannot be left to speculate about the size of a potential nationwide class.
Allen's demanding approach to numerosity will place significant obstacles in the path of plaintiffs seeking nationwide class certification under Title III going forward, at least for cases brought in the Third Circuit. We'll be watching to see whether courts in other circuits follow.
Edited by Minh Vu
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.