Third Circuit Overturns District Court’s Grant of Class Certification in ADA Title III Parking Lot Slope Litigation

On April 27, 2017, Magistrate Judge Robert Mitchell in the matter of Mielo v. Steak ‘N Shake, Inc., Civil Action No. 2:15-cv-00180 (W.D. Pa.), granted class certification to:

All persons with qualified mobility disabilities who were or will be denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Steak ‘n Shake restaurant location in the United States on the basis of a disability because such persons encountered accessibility barriers at any Steak ‘n Shake restaurant where Defendant owns, controls and/or operates the parking facilities.

Id. at Docket No. 126.

On July 26, 2018, Judge D. Brooks Smith, on behalf of a panel also consisting of Judges Thomas Hardiman and Luis Felipe Restrepo, authored a precedential Opinion overturning the District Court’s grant of class certification and remanding for further proceedings consistent with the appellate court’s Opinion. A copy of the July 26, 2018 Opinion in the matter of Mielo et al. v. Steak ‘N Shake, No. 17-2678 (3d Cir.) is attached here.

Addressing issues of standing and class certification, the court held that while the plaintiffs had satisfied the requirements for class representative standing, plaintiffs failed to satisfy the requirements for class certification. The “relaxed” Rule 23 standard suggested in Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir. 1985), and cited by the District Court, did not survive the 2003 amendments to Rule 23 and is no longer the law of the Third Circuit. Plaintiffs failed to satisfy their burden of demonstrating numerosity and/or commonality.

While the detailed Opinion addressed the deficiencies of the plaintiffs’ evidence, in a footnote, the court stated that “[i]t seems to us that a class definition limited to slope-related injuries occurring within a parking facility would present a class definition much more likely to meet the commonality requirement of Rule 23(a)(2)”; leaving the door open for future litigation.

If you have any questions regarding this Opinion, ADA litigation, or accessibility issues for public accommodations, contact Alisa Carr and Leech Tishman’s ADA Title III Defense Group. 

Alisa N. Carr is a Partner in Leech Tishman’s Litigation, Real Estate and Energy Practice Groups. She focuses her practice on litigation, with an emphasis on ADA Title III and FHA defense. Alisa is based in the Pittsburgh office and can be reached at 412.261.1600 or acarr@leechtishman.com.

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