Numerosity Killed The Class Action: Third Circuit Vacates Certification Of Another ADA Title III Class

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