37 F.4th 890
3d Cir.2022Background
- Plaintiffs Irma Allen and Bartley Mullen are wheelchair users who encountered blocked or narrowed interior aisles at two Ollie’s Bargain Outlet stores in Pennsylvania and sued under Title III of the ADA.
- Plaintiffs alleged a company-wide practice (merchandising/stocking and insufficient policies/training) that causes recurring obstructions in interior paths of travel; they sought certification of a nationwide Rule 23(b)(2) class of mobility-disabled customers who have or will experience interior access barriers.
- For certification, plaintiffs relied on (1) 2018 American Community Survey disability estimates by ZIP code, (2) twelve customer-service emails over three years alleging accessibility problems, and (3) a declaration noting sixteen wheelchair/scooter users observed on video over seven days at the two Pennsylvania stores.
- The District Court certified the nationwide class, finding joinder impracticable and common questions satisfied based on uniform corporate policies and the above evidence.
- The Third Circuit vacated and remanded, holding the District Court abused its discretion: numerosity and commonality were not shown by a preponderance (evidence was speculative and the class overbroad), and the court must clarify the class definition and the theory(ies) of classwide liability and relief.
- A concurring opinion urged that the Federal Rules of Evidence apply at class certification (i.e., fact evidence must be admissible), an issue the majority did not decide definitively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Numerosity under Rule 23(a)(1) | Census estimates + 16-person video + 12 emails suffice to show joinder impracticable for a nationwide class | Evidence is speculative, too few concrete injured class members identified; cannot extrapolate from general disability stats or limited video | Vacated: plaintiffs failed to prove numerosity by preponderance; evidence too speculative to support a large nationwide class |
| Commonality re: corporate-wide practice | Ollie’s visual standards and alleged merchandising practices create a common corporate cause of inaccessible aisles | Ollie’s has policies forbidding obstruction but allows local discretion; only limited Pennsylvania evidence and few anecdotes exist | Vacated: no significant proof that a corporate-wide policy or pervasive common mode of exercising discretion caused discrimination nationwide |
| Class definition breadth ("access barriers") | Class limited to interior paths of travel; plaintiffs emphasize movable merchandise obstructions | Broad term captures diverse, unrelated barriers (fixed architectural features, pillars, signage, shelving) not shown to share a common cause | Vacated: class definition overbroad (sweeps many distinct ADA claims); must narrow to specific barrier types/practices tied to common proof |
| Admissibility of fact evidence at certification | District Court allowed customer emails and other non-expert fact evidence even if hearsay; admissibility not required at certification | Ollie’s argued hearsay/inadmissible evidence cannot support certification | Majority avoided decisive ruling; concurrence argued FRE apply and fact evidence must be admissible at certification (i.e., rigorous admissibility required) |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (class commonality requires a common contention capable of classwide resolution; corporate-wide proof necessary for nationwide class)
- Mielo v. Steak ’n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018) (Rule 23 numerosity and standing principles; skepticism toward relying on broad statistical disability data alone)
- Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) (plaintiffs must provide circumstantial evidence specific to products/areas covered by class if members cannot be directly identified)
- In re Modafinil Antitrust Litig., 837 F.3d 238 (3d Cir. 2016) (numerosity guidance; rigorous inquiry when class may be small)
- PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (individualized inquiry required for reasonable-modification claims under ADA)
- Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001 (9th Cir. 2015) (retailer liable where recurring aisle obstructions show pattern/practice)
- In re Blood Reagents Antitrust Litig., 783 F.3d 183 (3d Cir. 2015) (expert evidence relied upon at certification must satisfy Daubert)
- Rodriguez v. Nat’l City Bank, 726 F.3d 372 (3d Cir. 2013) (certifying corporate-wide class requires proof of practice that pervades the company)
- Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014) (example where common design across stores supported a common question)