I used to say that denials of class certification on numerosity grounds were rare and that usually it was futile to oppose class certification on that ground. That’s becoming less true as some circuits, including the Third Circuit, have adopted a stricter approach to how plaintiffs must establish numerosity. If Plaintiffs are using an estimate of the number of class members, the estimate may have to be closely tailored to the precise parameters of the proposed class to pass muster. Following these recent decisions, defendants should carefully evaluate whether to contest numerosity.

Allen v. Ollie’s Bargain Outlet, Inc., No. 21-2121, — F.4th –, 2022 WL 2284654 (3d Cir. June 24, 2022) is a putative nationwide class action under the Americans with Disabilities Act (ADA), alleging that Ollie’s, an operator of retail stores, had a practice of placing merchandise and other items in aisles, obstructing access for wheelchair users. The district court certified a class, but the Third Circuit, after accepting an interlocutory appeal, vacated the class certification order on numerosity and commonality grounds.

Plaintiffs attempted to establish numerosity in three ways: (1) using a national survey of persons with mobility disabilities, along with census data to estimate regional numbers; (2) having someone record on video 16 customers using wheelchairs during a seven-day period at two of the defendant’s stores where the plaintiffs shopped; and (3) submitting written complaints received by the defendant from 12 customers. The Third Circuit found all of these approaches insufficient.

As to the survey and census data, the court found it speculative to extrapolate data from a nationwide survey to the plaintiffs’ region, and “[e]ven if that extrapolation is accurate … we would still be left with no basis to determine what portion of those one hundred wheelchair-bound residents of Monaca are customers of Ollie’s, let alone what portion have suffered a common ADA injury.” As to the video recording, while the Third Circuit found that more probative, it was still insufficient. The court emphasized that some people who use wheelchairs are not “disabled” under the ADA. And the video recordings did not establish that the wheelchair users encountered an ADA violation, i.e., the alleged obstructions in aisles.  The customer complaints were also insufficient because, assuming they were admissible, one of them was actually a compliment about how accessible one of the stores was for a wheelchair user, and the remaining eleven were too few to demonstrate numerosity.

The Third Circuit also found that commonality was lacking, finding the case analogous to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). The court reasoned that the only evidence of inaccessible aisles was limited to Pennsylvania, and there was no evidence to support a nationwide practice that could justify certifying a nationwide class. The Third Circuit also concluded that the evidence did not support commonality with respect to a proposed class broadly encompassing all kinds of “access barriers.”  However, the Third Circuit left open the possibility that the district court could certify a narrower class on remand.

The majority did not address an evidentiary issue regarding whether the Federal Rules of Evidence apply to class certification decisions, and thus whether the customer complaints were admissible. Judge Porter, however, wrote a thorough concurring opinion highlighting a circuit split on that issue and concluding that under Federal Rule of Evidence 1101 (probably not one you’ve read recently, and which several circuits apparently had overlooked), the rules of evidence apply in full to class certification proceedings (except that Federal Rule of Civil Procedure 43(c) allows courts deciding motions to accept affidavits or declarations in lieu of live testimony). Judge Porter’s concurring opinion is well worth reading and citing if you are faced with attempts to use hearsay or other inadmissible evidence to certify a class.