Photo: Katarzyna Bialasiewicz/

The U.S. Court of Appeals for the Third Circuit has upended the grant of class certification to two disability rights advocates who sued the Steak ‘n Shake chain for lack of handicap accessibility to its restaurants.

Chief Judge D. Brooks Smith wrote in the court’s opinion that the plaintiffs failed to meet a procedural requirement, Federal Rule of Civil Procedure 23(a), and thus the case had to be sent back to the lower court for further review.

The trial court certified the class as: “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.”

While the plaintiffs had the constitutional standing to bring the lawsuit, Smith said, “The extraordinarily broad class certified by the district court runs afoul of at least two of Rule 23(a)’s requirements. In light of this conclusion, the district court’s judgment will be reversed, and this matter will be remanded to the district court to reconsider if a class should be certified.”

Those requirements were numerosity and commonality of claims.

With numerosity, Smith said the plaintiffs had to show at least 40 people could fit into the class. They pointed to statistics showing that 14.9 million to 20 million Americans have mobility problems.

The number “suggests that it is highly likely that at least 40 of those individuals would have experienced access violations at one of the Steak ’n Shake locations at issue in this litigation,” Smith said. “But although those odds might be enough for a good wager, we must be mindful that ‘[m]ere speculation as to the number of class members—even if such speculation is “a bet worth making”—cannot support a finding of numerosity.’”

As for commonality, Smith said there could be a myriad of different claims from disabled individuals across the class.

“One person, for example, might allege that Steak ‘n Shake violated the ADA by failing to correct a steep slope in a parking facility, while other class members might allege that Steak ‘n Shake violated the ADA by failing to replace inaccessible door hardware, by failing to widen bathroom doors, or by failing to replace inaccessible water fountains.”

Ed Kipela of Carlson Lynch Sweet & Kilpela represents the plaintiffs and said ““We think the court’s opinion offers Steak ‘n Shake little more than a Pyrrhic victory.  The technical shortcomings on numerosity and commonality identified by the court as the basis for its decision can and will easily be remedied.  We fully intend to re-seek certification in this matter on remand and are optimistic that we will ultimately prevail.”

Maria G. Danaher of Ogletree, Deakins, Nash, Smoak & Stewart represents Steak ‘n Shake and did not respond to a call for comment.