Duane Morris Class Action Review - 2023 - Report - Page 107
H.
Class Certification Rulings In ADA Litigation
Class actions challenging across-the-board policies under the Americans with Disabilities Act
(ADA) met with little success in 2022.
The Third Circuit addressed the numerosity and commonality requirements of Rule 23
in Allen, et al. v. Ollie’s Bargain Outlet, Inc., 37 F.4th 890 (3d Cir. 2022), and vacated
the class certification order in an Americans with Disabilities Act class action against a
retail operator with 400 retail stores across 29 states. The plaintiffs had alleged that the
retailer’s stores were inaccessible to disabled people using wheelchairs because the
aisles were often blocked with merchandise. To satisfy the numerosity requirement, the
plaintiffs introduced census data estimating the number of people with ambulatory
disabilities for each zip code with a store, 12 emails from patrons using wheelchairs,
and evidence that 16 patrons using wheelchairs visited two stores in Pennsylvania over
the course of one week. To satisfy the commonality requirement, the plaintiffs argued
that the defendant had nationwide store-layout policies that affected accessibility in its
stores. The district court granted the plaintiffs’ motion for class certification on the
grounds that the plaintiffs had proved there were at least 30 people in the putative class
and that the proposed class members would have suffered the same injury stemming
from the retailer’s alleged policies. The Third Circuit reversed on both grounds. As to
numerosity, the Third Circuit held that the plaintiffs’ evidence was “far too speculative”
because the census data indicated nothing about the number of disabled people who
actually shopped at the stores, the customer complaints were “few” in number, and
there were no documented accessibility issues for those patrons visiting the
Pennsylvania stores. Id. at 899-900. In contrast to the plaintiffs’ “speculative” evidence,
in order to satisfy numerosity, the plaintiffs would have needed to provide “concrete
evidence of class members who have patronized a public accommodation and have
suffered or will likely suffer common ADA injuries.” Id. at 897. Relative to commonality,
the Third Circuit held that “stitching together a corporate-wide class requires more” than
showing that the defendant “has corporate policies and that some or all stores in
Pennsylvania pay inadequate attention to aisle accessibility.” Id. at 901. Because the
plaintiffs’ evidence of inaccessible aisles was limited to Pennsylvania, there was no way
of knowing whether the retailer’s visual standards resulted in discrimination “in some
regions,” but not others. Id. at 902. The Third Circuit concluded that evidence from one
state was not enough to support proceeding “on a corporate-wide basis against a
corporation with over four hundred stores in twenty-nine states.” Id.
In Brooks, et al. v. Morphe LLC, 2022 U.S. Dist. LEXIS 101536 (E.D. Cal. June 7,
2022), the plaintiff – a legally blind individual – sought certification of two classes –
including a nationwide and California-based class - of visually impaired internet users,
claiming the defendant makeup retailer’s website was not accessible to the visually
impaired. The plaintiff asserted violations of the Americans with Disabilities Act and the
California Unruh Civil Rights Act. The classes were defined as all legally blind
individuals who attempted access of the defendant’s website during the applicable
limitations period up to final judgment, and the California class would be limited to those
individuals in California. Id. at *3. The court determined that the plaintiff failed to satisfy
Rule 23(a)’s numerosity requirement since she provided no evidence that any visually
106
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
