An Illinois district court recently denied certification, finding that the putative nationwide class failed the commonality and numerosity prongs of Rule 23(a) and that injunctive relief was not available under Rule 23(b)(2) because the defendants did not have a standard policy or procedure causing injury to class members. The plaintiffs brought a putative class action seeking to hold Kohl’s Corporation and Kohl’s Department Stores, Inc. (“Kohl’s”) liable for alleged violations of the Americans with Disabilities Act (ADA) and the New York Human Rights Law based on alleged inaccessible counters, restrooms, fitting rooms, and inadequate accessible parking for customers with disabilities. According to the plaintiffs, Kohl’s routinely ignored its internal “Shopability Standards,” which set forth the minimum spacing distance for merchandise racks in its stores.
The plaintiffs’ motion for class certification included in its class definition people with mobile disabilities who “were denied access to the goods, services, facilities, privileges, advantages, or accommodations of any Kohl’s Department Store in the United States on the basis of disability because of the existence of aisles which were too narrow (less than 36 inches).” The court denied class certification, stating that the plaintiffs failed to demonstrate that a nationwide class under the proposed definition satisfied Rule 23.
On the issue of commonality, the court found that the plaintiffs did not establish that members of the class had suffered the same injury. Instead, the plaintiffs identified 12 individuals who had reported experiencing difficulty in accessing merchandise in approximately 17 different stores, but could not direct the court to any evidence that Kohl’s, as a practice or policy, routinely required employees to ignore complaints or disregard its Shopability Standards.
The court also denied class certification based on the plaintiffs’ failure to meet the numerosity prong of Rule 23. The plaintiffs argued that numerosity was satisfied based on an estimate that approximately 1,800 individuals had visited a Kohl’s store in the United States and experienced difficulties maneuvering the aisles. However, the court found unpersuasive the plaintiffs’ methodology of relying on publicly-available disability statistics, such as the percentages of people with an ambulatory disability or who use wheelchairs and the population of Kohl’s shoppers, to extrapolate their estimate. The court reasoned that because all stores had varying layouts, as well as discretion to implement Kohl’s Shopability Standards, including the width of the aisles, and because the issue concerned not the standards themselves, but that they were purportedly not enforced, nationwide statistics were insufficient evidence to establish numerosity.
Moreover, aside from the requirements of Rule 23(a), the court found the injunction sought by the plaintiffs, which would have simply directed Kohl’s to follow its own internal standards, would do nothing more than direct Kohl’s to obey the law, which carried the possibility for overbreadth and vagueness. As such, the court denied the plaintiffs’ motion for class certification.