The Third Circuit’s recent decision in Allen v. Ollie’s Bargain Outlet, Inc., — F.4th —-, 2022 WL 2284654 (3d Cir. 2022), gave close scrutiny to two elements of the class certification inquiry – numerosity and commonality – that are often deemed satisfied with little analysis, and rejected the district court’s reliance on inferences drawn from limited evidence.
Plaintiffs were two wheelchair users who encountered obstacles in navigating two Ollie’s stores in Pennsylvania. They brought an ADA suit, and the district court certified a nationwide class of persons with mobility disabilities who attempted to access defendant’s stores and “experienced access barriers in interior paths of travel.” The Third Circuit reversed after finding plaintiffs’ evidence of numerosity and commonality deficient. On both issues, it faulted the district court for drawing broad inferences from limited evidence without expert opinion or other support for the inferences.
“Trained Experts commonly extrapolate from existing data. Generalist Article III judges do not.”Allen, 2022 WL 2284654, at *4 (internal quotation marks and citation omitted).
Numerosity. The district court found numerosity satisfied based on (1) statistics on the number of people with mobility disabilities in areas near Ollie’s stores; (2) a sample of video footage showing 16 people using wheelchairs or scooters visited two Ollie’s stores over seven days; and (3) 12 written complaints about navigation challenges for wheelchair users. Id. at *4-7.
The Third Circuit held that the record did not provide a basis for inferring a class of more than 40 members, reasoning that not all people with mobility disabilities use wheelchairs, not all wheelchair users are disabled, and the record lacked evidence establishing that the rate of wheelchair-using customers observed in the videos is representative of Ollie’s stores in general. Such close scrutiny of the evidence “give[s] the numerosity requirement ‘real teeth.’” Id. at *4.
Commonality. The Third Circuit held that plaintiffs failed to establish commonality for similar reasons. Even though plaintiffs identified a common corporate policy governing stores’ appearance, the “investigative record [wa]s limited to stores in Pennsylvania.” Id. at *9. Without evidence of the condition of stores outside Pennsylvania, the Third Circuit held that there was “no proof” that the corporate policy “cause[d] inaccessible aisles across all Ollie’s stores nationwide.” Id. “Proceeding on a corporate-wide basis against a corporation with over four hundred stores in twenty-nine states requires more than plausible allegations backed by Pennsylvania-only evidence.” Id.