The Third Circuit’s new opinion on class certification issues in Mielo v. Steak ‘N Shake Operations, Inc., No. 17-2678 (3d Cir. July 26, 2018) provides helpful guidance for district courts and class action lawyers on both sides. The case alleged violations of the Americans with Disabilities Act (“ADA”) at the defendant’s restaurants. In brief, here are my takeaways from it:

  • Standing: In prior opinions, the Third Circuit has taken the view that the standing inquiry focuses only on the named plaintiffs, not on the class members. That’s an issue ripe for the Supreme Court to tackle. In this case, the Third Circuit found it sufficient for standing purposes for the named plaintiffs to allege that they had personally encountered difficulties with parking facilities that they alleged violated the ADA. Whether the plaintiffs could pursue claims involving restaurants they never visited was an issue the court viewed as a Rule 23 issue rather than an Article III standing issue, in the Third Circuit’s view.
  • Numerosity: The Third Circuit explained how “[i]n recent years the numerosity requirement has been given ‘real teeth.’” (Slip op. at 35.) It requires real evidence, not speculation. Merely because there are millions of persons with mobility disabilities in the United States and it might be fair to assume that at least 40 of them experienced the alleged access issues at the defendant’s restaurants was not enough. The court noted that the numerosity requirement is not “relaxed” in any sense when certification is sought for declaratory or injunctive relief under Rule 23(b)(2). The lesson for defendants here? Think twice before you give up on numerosity.
  • Commonality: This is the most significant part of the opinion, in my view. The court focused on how, although the case plainly focused on a common legal issue involving one ADA provision, that was not enough for commonality. The class definition encompassed various different types of alleged ADA violations under the same statutory provision and regulations, from parking lots to bathrooms to water fountains. The court said that “the collective claims are so widely divergent that they would be better pursued on either an individual basis or by a sufficiently numerous lass of similarly-aggrieved patrons,” and “[w]ith such a potentially wide array of different claims by members of the class,” commonality was not satisfied. (Slip op. at 51.) Defendants can use this decision effectively in lots of cases that involve similar alleged statutory violations or contract claims. In a footnote, the court suggested (but did not decide) that a very narrowly-pled case might satisfy commonality. But that might make numerosity a challenge, and could make a class case much less attractive for plaintiffs’ counsel to pursue. It will be interesting to see if (and how) the plaintiffs continue to pursue this case on remand.
  • Rule 23(b)(2): The court did not reach any issue under Rule 23(b)(2). But footnote 24 of the opinion provides some important guidance, reminding the district court that: (1) subsection (b)(2) applies only if a “single” injunction or declaratory judgment would apply to the entire class; and (2) Rule 65 requires specificity and detail in any proposed injunction.
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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.