I know I am late with a blog entry for this week, but I have a good excuse. Here in Atlanta, school starts August 1, and I have been dealing with some of those issues. Also, I had an expert witness report due yesterday and that consumed all the oxygen in the room. At any rate, ready to go. The blogosphere has lit up with a very novel case alleging that a class action should be certified against Steak ‘N Shake because they do not have policies and procedures in place to proactively deal with inaccessibility of restaurants. My colleague Richard Hunt brought the case to my attention in his excellent blog entry on the case (which can be found here). I also saw another firm talk about it in my Lexology feed. I thought I could add a different perspective, and so here goes. Before moving on to that, the necessity of adopting an ADA compliance policy is not a new one on this blog, as we discussed in this blog entry. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning standing; court’s reasoning Rule 23(A); and takeaways. The reader is free to read any or all of the sections. The whole blog entry is pretty short and not as complicated as usual. So, you’re probably going to want to read the whole thing.

I

Facts

The facts are pretty straightforward. You have two individuals with disabilities who claim they personally experienced difficulty in moving through steeply graded parking facilities at one Steak ‘N Shake location each. Here’s where it gets interesting. The two plaintiffs sought to enjoin the defendant on a national basis by requiring the company to adopt corporate policies relating to ADA compliance. That is, plaintiff sought to have the court mandate the adoption of centralized corporate policies crafted to ensure potentially discriminatory access violations were actively sought out and corrected. At the lower court level, the District Court certified an extremely broad class and defendant appealed. Also interesting, is that despite the novelty of this cause of action, the defendant prior to appealing the decision to the Third Circuit, had yet to file a motion to dismiss or a motion for summary judgment.

II

Court’s Reasoning Standing

  1. The plaintiffs present a colorable argument that the ADA does require the defendant to adopt new policies requiring them to actively seek out and correct access violations.
  2. While the lack of a policy by itself is not sufficient to confer standing, both plaintiffs allege that they had actual physical difficulty in moving through parking facilities that were not ADA compliant, and they both personally experienced those injuries.
  3. Since they personally experienced those injuries, the injuries were not hypothetical or conjectural.
  4. The injury in fact is fairly traceable to the challenged conduct of the defendant. That is, the lack of proactive ADA access policies is sufficient to show a traceable connection between alleged injury in fact and the alleged conduct of the defendant. It isn’t simply a matter of but for causation.
  5. While it is a close call that the injury could be redressed by a favorable decision, the Third Circuit believes the balance falls to the plaintiff. In particular, the District Court could order the defendant to develop training protocols to make sure their maintenance employees are aware of the ADA’s structural requirements and know how to identify access violations for proper repair. They also could be required to conduct annual ADA specific inspections to ensure accessibility is maintained. The District Court could require the defendant to refrain from engaging in the current practice of performing ADA inspections only in response to complaints brought to the company’s attention by patrons. Finally, plaintiffs requested that the District Court retain jurisdiction over the matter to make sure the defendant did what it was supposed to do.

III

Court’s Reasoning Rule 23(A)

  1. It takes a lot under United States Supreme Court case law for a class to be certified and broad classes are not favored. See this blog entry for example.
  2. Mere speculation as to the number of class members cannot support a finding of numerosity. More detail is needed. For example, what portion of individuals with disabilities existing in the United States have actually patronized a relevant restaurant of the defendant, let alone the portion experiencing or will experience an ADA violation at one of those restaurants?
  3. Upon remand, for a class certification to be upheld, plaintiffs will have to provide evidence so that the District Court can conclude a sufficiently numerous group of individuals with disabilities have experienced or will experience ADA violations at relevant restaurants of the defendant. Much of this can be found in census data, but that and something more will be required to satisfy the numerosity burden.
  4. The class is simply too broad to be able to withstand recent Supreme Court decisions on when a class can be certified. In particular, class members claims must depend upon a common contention capable of class wide resolution in one stroke, which is not the case with the current class definition. Solving that problem is doable. For example, the class might be limited to slope related injuries occurring within the defendant’s parking facility.

IV

Takeaways

  1. Here is what I don’t get about this decision at all. The final implementing regulations for the Rehabilitation Act require a disability discrimination grievance procedure if the employer has over 15 employees. For the ADA, a grievance procedure is required if the employer has 50 or more employees. Clearly, Steak ‘N Shake has the requisite number of employees. Now, if you are going to have an ADA/Rehabilitation Act grievance procedure, you might as well have a compliance program so that you can head a lot of the problems off at the beginning. A compliance program also makes great preventive law sense. What might such a title III compliance program look like? Well, you can most certainly start with this blog entry and this blog entry. For that matter, with respect to developing a compliance program for title III of the ADA, any of my blog entries discussing title III issues will be helpful.
  2. I just don’t understand why the attorneys for the plaintiffs did not bring up that the final implementing regulations for both the Rehabilitation Act and the ADA require an ADA grievance procedure for Steak ‘N Shake since having an ADA/Rehabilitation Act grievance procedure invariably leads to a compliance program.
  3. With respect to the rest of it, my colleague Richard Hunt makes a great deal of sense in his blog entry, noted above, as to why title III policy focused litigation doesn’t make a lot of sense under the parameters of title III.
  4. Not sure what happens next. Does the defendant appeal to the United States Supreme Court? Do they request a rehearing en banc? How does the whole thing change once you rope in that the defendant is already required to have an ADA grievance procedure?
  5. Bottom line: Regardless of this kind of litigation, good preventive law demands an ADA/rehabilitation act grievance procedure and a compliance program. A grievance procedure might head off more expensive litigation. A compliance program most certainly would. Of course, the other option is to just pay lots of money to both attorneys for the plaintiff and the defendant since it is a fee shifting statute.

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