A Class Certification Opinion by Judge Porter, With a Concurring Opinion by … Judge Porter

Allen v. Ollie’s Bargain Store, Inc., 37 F.4th 890 (3d Cir. 2022). This blog has reported on several Third Circuit cases in which a unanimous panel opinion was accompanied by a concurrence signed by all three judges (here and here), or by two out of three of those judges (here), including the author of the panel opinion. Last Friday, however, Judge Porter wrote both a class certification opinion for a unanimous panel and a concurring opinion that addressed an issue that the panel decision declined to reach.

This was an Americans With Disabilities Act (“ADA”) case. Plaintiffs were two persons who are “disabled and need wheelchairs to move about.” They “went shopping at two different bargain stores owned by Ollie’s Bargain Outlet, Inc. (‘Ollie’s’).” But at those stores they “encountered an obstacle course: pillars, clothing racks, and boxes blocked their way.” They filed an ADA action seeking class status. The District Court granted certification of an injunctive relief class under Federal Rule of Civil Procedure 23(b)(2). Ollie’s appealed, and the Third Circuit reversed, applying abuse of discretion review to the class certification decision and de novo review of questions of law.

Judge Porter’s panel opinion found that plaintiffs had failed to prove two required elements of class certification: numerosity of the putative class, under Rule 23(a)(1), and the presence of common questions of law or fact, under Rule 23(a)(2). Plaintiffs relied on “three strands of evidence” to show numerosity: American Community Survey estimates of persons with mobility disabilities, a declaration that averred that, over a seven-day period, video cameras at the two Ollie’s locations where plaintiffs shopped showed sixteen persons using wheelchairs or scooters, and twelve written complaints by wheelchair users about barriers in Ollie’s stores. Those sources of evidence, separately or together, did not prove numerosity, which generally requires at least forty class members.

The survey evidence did not necessarily show how many persons with disabilities lived near Ollie’s stores. Nor did it show how many such persons tried unsuccessfully to shop at an Ollie’s store, the relevant fact for numerosity. The declaration similarly merely showed “the general pool of wheelchair-using Ollie’s customers, not the more relevant subset of wheelchair-bound customers who have suffered common ADA injuries.” And the written complaints had several defects, including the fact that at least one was not a complaint at all, and the same might have been so of others.

The panel opinion also noted Ollie’s argument that the customer complaints were hearsay, and that the Federal Rules of Evidence precluded the use of hearsay at the class certification stage. The opinion declined to reach that issue, since even if the complaints were admissible, they were not probative, for the reasons discussed above.

Commonality was also lacking, Judge Porter said. The District Court had certified a class that encompassed all Ollie’s stores nationwide, based on the idea that Ollie’s “policies and procedures” could be shown to cause “access barriers” that would, in common fashion, cause injury to persons with disabilities. But the only evidence was as to two stores in Pennsylvania. “It is not enough that Ollie’s has corporate policies and that some or all stores in Pennsylvania pay inadequate attention to aisle accessibility. Stitching together a corporate-wide class requires more.”

Moreover, Judge Porter found fault with the term “access barriers” in the class definition. The Third Circuit had rejected the use of the term “accessibility barriers” in another ADA case, Mielo v. Steak ’n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018). Here, “the District Court certified a class that applies to any kind of access barrier in interior paths of travel, not just merchandising wares blocking accessible aisles. We cannot cure the overbreadth of the class definition on appeal.” The panel reversed class certification and remanded the case for further proceedings.

Judge Porter’s separate concurring opinion followed. In it, he noted (as discussed above) that the panel opinion “sidestep[ped] one of the principal legal issues raised by this appeal: whether the Federal Rules of Evidence apply to fact evidence introduced in support of class certification.” He then explained his view that those Rules precluded the use of hearsay at that stage of a case, citing cases from other Circuits that have gone both ways and criticizing those adverse to his position. This concurring opinion lays the groundwork for the Third Circuit to address this issue squarely.