Irma Allen v. Ollies Bargain Outlet Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-2121

____________

IRMA ALLEN; BARTLEY MICHAEL MULLEN, Jr.,

Individually and on behalf of all others similarly situated

v.

OLLIE’S BARGAIN OUTLET, INC.,

Appellant

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2-19-cv-00281)

District Judge: Honorable William S. Stickman, IV

____________

Argued: March 15, 2022

Before: JORDAN, KRAUSE, and PORTER,

Circuit Judges.

(Filed: June 24, 2022)

____________

Richard L. Etter [ARGUED]

Ogletree Deakins

One PPG Place

Suite 1900

Pittsburgh, PA 15222

David L. Schenberg

Ogletree Deakins

7700 Bonhomme Avenue

Suite 650

St. Louis, MO 63105

Counsel for Appellant

R. Bruce Carlson

Carlson Brown

222 Broad Street

Sewickley, PA 15143

Gary F. Lynch

Elizabeth Pollock-Avery

Kelly K. Iverson

Jamisen A. Etzel [ARGUED]

Nicholas Colella

Lynch Carpenter

1133 Penn Avenue

5th Floor

Pittsburgh, PA 15222

Counsel for Appellees

2

____________

OPINION OF THE COURT

____________

PORTER, Circuit Judge.

Irma Allen and Bartley Mullen are disabled and need

wheelchairs to move about. Hoping to find “Good Stuff

Cheap,” they went shopping at two different bargain stores

owned by Ollie’s Bargain Outlet, Inc. (“Ollie’s”). But once

inside Ollie’s, they encountered an obstacle course: pillars,

clothing racks, and boxes blocked their way. Dissatisfied with

their shopping experiences, they filed a putative class action

against Ollie’s under Title III of the Americans with Disabili-

ties Act (“ADA”). They seek permission to sue on behalf of

every similarly disabled individual who shops at any Ollie’s

store in the United States and has or will encounter interior

access barriers. The District Court certified the proposed class.

We will vacate and remand. The District Court abused its dis-

cretion by certifying an overly broad class based on inadequate

evidence of numerosity and commonality.

I

A

Ollie’s owns and operates over four hundred retail

stores across twenty-nine states.1 Allen and Mullen visited two

different Ollie’s stores in Monaca and New Castle,

1

Ollie’s Bargain Outlet Holdings, Inc., 2021 Annual Report

(Form 10-K) at 1 (“We have grown to 431 stores in 29 states

as of January 29, 2022.”).

3

Pennsylvania. There, they encountered obstacles blocking their

path of travel, including inventory on the floor, clothing racks

placed too close together, boxes, pallets, and structural pillars.

Pictures taken later at these stores show aisles similarly nar-

rowed by inventory carts, pallets, columns, boxes, or goods on

the floor. Suspecting a pattern, Allen and Mullen’s lawyers

hired investigators to take photographs and measure aisle

width at several Ollie’s stores in Pennsylvania. After this pre-

liminary investigation, Allen and Mullen sued Ollie’s under

Title III of the ADA.

B

Title III of the ADA prohibits retailers like Ollie’s from

discriminating “on the basis of disability in the full and equal

enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations” they offer to the public. 42

U.S.C. § 12182(a). This general prohibition has several spe-

cific definitions that extend disability discrimination beyond

disparate treatment or invidious discrimination. Plaintiffs fo-

cus their complaint and argument on three specific definitions

of Title III discrimination. We discuss these for background.

First, Title III discrimination includes “a failure to make

reasonable modifications in policies, practices, or procedures,

when such modifications are necessary to afford” goods, ser-

vices, and the like to “individuals with disabilities.” Id.

§ 12182(b)(2)(A)(ii). “To comply with this command, an indi-

vidualized inquiry must be made to determine whether a spe-

cific modification for a particular person’s disability would be

reasonable under the circumstances as well as necessary for

that person . . . .” PGA Tour, Inc. v. Martin, 532 U.S. 661, 688

(2001).

4

Second, Title III discrimination includes “a failure to

remove architectural barriers . . . in existing facilities, . . .

where such removal is readily achievable.” 42 U.S.C.

§ 12182(b)(2)(A)(iv). The Department of Justice gives the

term “architectural barriers” a broad scope. For example,

shelves, tables, chairs, vending machines, display racks, and

furniture are treated as “architectural.” 28 C.F.R.

§ 36.304(b)(3), (4). Architectural barriers must be removed

only when “readily achievable,” a standard that “means easily

accomplishable and able to be carried out without much diffi-

culty or expense.” 42 U.S.C. § 12181(9).

Third, facilities built or altered after the ADA’s effec-

tive dates must be “readily accessible to and usable by” the dis-

abled. 42 U.S.C. § 12183(a); 28 C.F.R. §§ 36.401(a)(1),

402(a)(1). To be readily accessible, a facility must comply with

the standards for accessible design. 28 C.F.R. § 36.406. Under

section 403.5.1 of the most recent 2010 standards, aisles must

generally be at least thirty-six inches wide, but can measure as

little as thirty-two inches wide for short distances. 36 C.F.R.

pt. 1191, app. D. Department of Justice rules require facilities

to maintain accessible aisles “in operable working condition.”

28 C.F.R. § 36.211(a).

Plaintiffs’ “core contention” is that “Ollie’s deliberately

directs the placement of merchandise within aisles,” causing a

corporate-wide failure to maintain accessible aisles. Appellees’

Br. 28. Under plaintiffs’ theory, retail stores fail to maintain

accessible aisles “in operable working condition” if they inten-

tionally and recurringly block them with movable objects, a

position supported by Ninth Circuit precedent. See Chapman

v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1009 (9th Cir.

2015) (retail store violated ADA when it had a pattern of

obstructing aisles with objects like “step ladders”). Plaintiffs

5

claim that Ollie’s failure to modify its corporate policies to pre-

vent this alleged merchandising practice is discriminatory, and

they also suggest that some or all merchandising goods count

as “architectural” barriers that must be removed.

C

After completing targeted discovery, plaintiffs moved

to certify the following class under Federal Rule of Civil Pro-

cedure 23(b)(2):

All persons with qualified mobility disabilities

who have attempted, or will attempt, to access

the interior of any store owned or operated by

[Ollie’s] within the United States and have, or

will have, experienced access barriers in interior

paths of travel.

App. 171. Before proceeding as a class under Rule 23(b)(2),

plaintiffs had to satisfy Federal Rule of Civil Procedure 23(a).

Under Rule 23(a), they had to “demonstrate, first, that ‘(1) the

class is so numerous that joinder of all members is impractica-

ble; ‘(2) there are questions of law or fact common to the class;

‘(3) the claims or defenses of the representative parties are typ-

ical of the claims or defenses of the class; and ‘(4) the repre-

sentative parties will fairly and adequately protect the interests

of the class.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

345 (2011) (quoting Fed. R. Civ. P. 23(a)). To satisfy Rule

23(b)(2), plaintiffs then had to show that Ollie’s “has acted or

refused to act on grounds that apply generally to the class, so

that final injunctive relief or corresponding declaratory relief

is appropriate respecting the class as a whole.” Id. at 345–46

(quoting Fed. R. Civ. P. 23(b)(2)).

6

Before the District Court, Plaintiffs argued that joinder

of class members was impracticable given the size of the class.

They introduced three strands of evidence to support this

assertion. First, data from the U.S Census Bureau’s 2018

American Community Survey, estimating the number of peo-

ple with ambulatory disabilities—meaning serious difficulty

walking or climbing stairs—for each zip code with an Ollie’s

store. Second, twelve emails received by Ollie’s customer ser-

vice over three years from or on behalf of patrons that use

wheelchairs or have a mobility disability. Third, a declaration

stating that over seven days, sixteen persons using wheelchairs

or scooters were recorded by video at the two Ollie’s locations

where Allen and Mullen shopped.

Plaintiffs at first argued there were common questions

based on Ollie’s alleged failure to adopt ADA-specific stand-

ard operating procedures and employee training practices. In

their reply brief, plaintiffs urged a narrower commonality

argument, one they now press on appeal. They asserted that

Ollie’s “employees” have a common “practice” of “placing

merchandise displays and stock in locations that block or limit

accessibility,” and they attributed this alleged practice to

Ollie’s corporate “merchandise stocking and display prac-

tices.” App. 901–02. To support this commonality argument,

plaintiffs cited allegations in their complaint, Allen’s and

Mullen’s depositions, and photographs of Pennsylvania stores

showing a “pattern and practice of path of travel obstructions.”

App. 901 n.8, 902 n.9.

D

The District Court certified the proposed class. The

District Court agreed with plaintiffs that joinder of all class

members would be impracticable. Allen v. Ollie’s Bargain

7

Outlet, Inc., No. 2:19-CV-281, 2021 WL 1152981, at *6 (W.D.

Pa. Mar. 26, 2021). Adding Allen and Mullen, the twelve cus-

tomer emails, and the sixteen individuals observed in two

stores over seven days, the District Court concluded that plain-

tiffs “have concretely shown that thirty people with potential

mobility disabilities are customers of Ollie’s stores.” Id. In the

District Court’s judgment, the circumstantial evidence of thirty

potentially disabled patrons, together with the community sur-

vey estimates, was enough. Id. As the District Court put it,

“[t]he statistical evidence presented already indicates that there

is a good chance that the proposed class is numerous, and any

speculation accompanying the statistical data alone is over-

come by the addition of the concrete, case-specific evidence of

written complaints and video footage.” Id. at *6 (citation omit-

ted). Ollie’s objected to the use of the customer complaints as

inadmissible hearsay, but the District Court overruled the

objection, holding that non-expert evidence like the customer

complaints need not be admissible to certify a class. Id. at *5

n.5.

The District Court also held the proposed class pre-

sented common questions. It relied on a syllogism. First,

“Ollie’s policies are uniform and company-wide.” Id. at *7.

Second, “[i]f Ollie’s policies and procedures do, in fact, cause

access barriers to unlawfully restrict individuals with disabili-

ties from obtaining their desired goods, then proposed mem-

bers who endured violations have suffered the same injury, the

resolution of which will resolve a central issue in one fell

stroke.” Id. “As a result,” the District Court held, “Plaintiffs

have satisfied their burden of showing by a preponderance of

the evidence that there are questions of law or fact common to

the proposed class.” Id. After finding the remaining require-

ments of Rule 23(a) were met, the District Court held that the

8

proposed class satisfied Rule 23(b)(2) because “[a]n injunction

requiring the removal of the existing access barriers, and the

modification of Ollie’s policies to prevent the use of access

barriers restricting disabled individuals’ use and enjoyment of

Ollie’s goods would provide appropriate relief to the proposed

class.” Id. at *8.

This appeal followed.

II

The District Court had subject-matter jurisdiction under

28 U.S.C. § 1331. We have appellate jurisdiction under Rule

23(f) and 28 U.S.C. § 1292(e). Mielo v. Steak ’n Shake

Operations, Inc., 897 F.3d 467, 473–74 (3d Cir. 2018). If the

case proceeds to summary judgment or trial, the result may be

different, but Allen and Mullen have adequately alleged Article

III standing at this stage. Id. at 478–82.

We review a class certification order for abuse of dis-

cretion, which occurs if the trial court’s decision rests on a

clearly erroneous finding of fact, an errant conclusion of law,

or an improper application of law to fact. Marcus v. BMW of

N. Am., LLC, 687 F.3d 583, 590 (3d Cir. 2012). We review

questions of law, including whether the trial court applied the

correct legal standard, de novo. Steak ’n Shake, 897 F.3d at

474.

III

A

Under Rule 23, the proposed class must be “so numer-

ous that joinder of all members is impracticable.” Fed. R. Civ.

P. 23(a)(1). This “rule prevents putative class representatives

9

and their counsel, when joinder can be easily accomplished,

from unnecessarily depriving members of a small class of their

right to a day in court to adjudicate their own claims.” Marcus,

687 F.3d at 594–95. As with every Rule 23 requirement, plain-

tiffs must show the class is numerous enough by a preponder-

ance of the evidence. Steak ’n Shake, 897 F.3d at 483–84. We

presume joinder is impracticable when the potential number of

class members exceeds forty. Id. at 486. This is a guidepost:

showing the number of class members exceeds forty is neither

necessary nor always sufficient. Marcus, 687 F.3d at 595. “The

text” of Rule 23(a)(1) is “conspicuously devoid of any numer-

ical minimum required for class certification.” In re Modafinil

Antitrust Litig., 837 F.3d 238, 249 (3d Cir. 2016). But while a

class of forty-one does not automatically satisfy Rule 23(a)(1),

a putative class that size faces a relaxed burden under our prec-

edent. By contrast, the “inquiry into impracticability should be

particularly rigorous when the putative class consists of fewer

than forty members.” Id. at 250.

In recent opinions, we have given the numerosity re-

quirement “real teeth.” Steak ’n Shake, 897 F.3d at 484. When

plaintiffs cannot directly identify class members, they “must

show sufficient circumstantial evidence specific to the prod-

ucts, problems, parties, and geographic areas actually covered

by the class definition to allow a district court to make a factual

finding. Only then may the court rely on ‘common sense’ to

forgo precise calculations and exact numbers.” Marcus, 687

F.3d at 596. And “where a putative class is some subset of a

larger pool, the trial court may not infer numerosity from the

number in the larger pool alone.” Hayes v. Wal-Mart Stores,

Inc., 725 F.3d 349, 358 (3d Cir. 2013). In Steak ’n Shake, for

example, census data showing “there are between 14.9 million

to 20.9 million persons with mobility disabilities who live in

10

the United States” was not enough to show numerosity under

Rule 23(a)(1). 897 F.3d at 486. Applying these principles, we

conclude the District Court abused its discretion when it found

that plaintiffs had met their numerosity burden.

1

Plaintiffs argue that the 2018 American Community

Survey estimates of persons with mobility disabilities would

alone allow us to affirm the District Court’s numerosity find-

ing. But these survey estimates prove little. The survey

measures anyone who reports serious difficulty walking or

climbing steps. Plaintiffs acknowledge that the more relevant

number of disabled persons—individuals needing wheel-

chairs—is about an order of magnitude lower, and they ask us

to extrapolate more accurate regional numbers from different

national census estimates. The national census study they cite

estimates that persons needing wheelchairs are a small fraction

of the population that has severe difficulty walking or climbing

stairs. See Mathew W. Brault, U.S. Census Bureau, Americans

with Disabilities: 2010, P70-131, Table A-1, 17 (July 2012)

(8.3% of the U.S. population fifteen and older has a severe

mobility disability, but only 1.5% uses a wheelchair),

https://perma.cc/5V96-H5DS. But extrapolating the relevant

number across every region would be hazardous speculation.

“Trained experts commonly extrapolate from existing data.”

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Generalist

Article III judges typically do not.

Regional population statistics like the survey are in any

event insufficient. The District Court was right “that a district

court’s finding premised almost exclusively on statistical data

is not enough to satisfy numerosity—something more is

required.” Ollie’s, 2021 WL 1152981, at *6. Steak ’n Shake

11

rejected reliance on statistical data documenting the number of

disabled people not because it was national in scope, but

because it did not allow us to “determine—rather than specu-

late about—the portion of those disabled individuals who have

actually patronized a relevant Steak ’n Shake restaurant, let

alone the portion who have experienced or will experience an

ADA violation at one of those restaurants.” 897 F.3d at 486.

The same remains true for regional population statistics.

Regional estimates of a disabled population showing proximity

to a store may be more probative of disabled customers than

national ones, depending on the quality and reliability of the

study’s statistical methods and practices, but they alone do not

support a finding that a class is numerous. Consider Ollie’s

store in Monaca, Pennsylvania. The survey suggests there are

about one thousand persons with mobility disabilities living in

the same zip code. Plaintiffs would extrapolate that about a

tenth of these residents, or one hundred Monaca residents, need

wheelchairs to move about. Even if that extrapolation is

accurate, however, 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. We cannot

infer numerosity from this large pool of residents.

The “something more” required by Steak ’n Shake is

concrete evidence of class members who have patronized a

public accommodation and have suffered or will likely suffer

common ADA injuries. We reject plaintiffs’ argument that the

community survey estimates alone are enough to carry their

burden of proof.

12

2

We next turn to the other two strands of non-statistical

evidence the District Court thought set this case apart from

Steak ’n Shake. While this evidence is probative, after examin-

ing all the evidence, we are still left with head-scratching spec-

ulation, insufficient to support a factual finding.

a.

The first strand of non-statistical evidence is plaintiffs’

declaration stating that over seven days, sixteen persons using

wheelchairs or scooters were recorded by video at the two

Ollie’s locations where Allen and Mullen shopped.2 We agree

that this declaration is “probative of the number of potentially

disabled individuals visiting Ollie’s stores.” Ollie’s, 2021 WL

1152981, at *5 n.6. But it is not enough to satisfy plaintiffs’

burden of proof on numerosity, even considered alongside the

community survey of disabled residents.

For one, the declaration does not allow us to determine

what portion of disabled residents shop at Ollie’s. Plaintiffs ask

us to extrapolate customer numbers from a limited video sam-

ple of two stores over seven days, arguing the video footage

suggests more than three hundred wheelchair-using customers

2

Ollie’s does not challenge the admissibility of this

declaration, and for good reason. When a class certification

“motion relies on facts outside the record,” Federal Rule of

Civil Procedure 43(c) allows trial courts to “hear the matter on

affidavits.” And the Judicial Code permits declarations instead

of affidavits. 28 U.S.C. § 1746. Regardless of whether the

Federal Rules of Evidence govern, the declaration was

properly before the District Court.

13

shop at Ollie’s every day. But that extrapolation rests on spec-

ulation, not a reasonable inference. The video, for starters, does

not allow us to determine what portion of those wheelchair-

using customers are disabled. To be disabled, the customers

would need to have “a physical or mental impairment that sub-

stantially limits one or more major life activities,” including

“walking.” 42 U.S.C. § 12102(1)(A), (2)(A). At least some

wheelchair- or scooter-using customers may not qualify. Cf.

Richardson v. Chicago Transit Auth., 926 F.3d 881, 884 (7th

Cir. 2019) (holding extreme obesity does not qualify as a phys-

ical impairment if it is not the result of a physiological disorder

or condition). To be sure, we agree the District Court does not

need to “determine as a matter of law that each of the sixteen

individuals seen using a wheelchair are mobility disabled un-

der the ADA before considering the photographs.” Ollie’s,

2021 WL 1152981, at *5 n.6. In this case, the District Court

used common sense to infer that at least some of the customers

using wheelchairs are likely disabled. Id. We cannot say that

common-sense inference was an abuse of discretion. It is fair

to infer that at least some of the wheelchair-using customers

are likely disabled under the ADA. Even if we accept the

District Court’s conclusion, however, the number of disabled

customers observed in the video could range from zero to six-

teen. Some evidence buttressing a correlation between the

wheelchair-using and ADA-disabled populations would signif-

icantly strengthen this evidence.

Still, even assuming all sixteen customers were likely

disabled and that none of them were repeat visitors, we have

no basis to assume that the rate of wheelchair-using customers

observed in the video footage sample is representative of

Ollie’s stores. Before we can extrapolate the limited sample

across four hundred stores, our precedent requires at least some

14

evidence supporting a factual finding that disabled customers

visit Ollie’s “in roughly equal proportions” to the rate observed

in the video. Marcus, 687 F.3d at 596. Otherwise, we remain

in the realm of speculation, not common-sense inferences. And

even if the declaration allowed us to determine the pool of

wheelchair-bound Ollie’s customers, the declaration still does

not allow us to “determine—rather than speculate about—the

portion of those disabled individuals who . . . have experienced

or will experience an ADA violation at one of those” stores.

Steak ’n Shake, 897 F.3d at 486. The declaration does not sug-

gest that the wheelchair-using customers observed in the video

suffered an ADA violation in common with the class. At best,

the declaration is evidence of the general pool of wheelchair-

using Ollie’s customers, not the more relevant subset of

wheelchair-bound customers who have suffered common

ADA injuries. The District Court appears to have assumed that

evidence of injured customers was unnecessary to support

numerosity. See Ollie’s, 2021 WL 1152981, at *6 n.7. If so,

that was error. Evidence establishing the subset of injured cus-

tomers, not just the general pool of wheelchair-using customers

who shop at Ollie’s, is necessary to support a finding that a

class is likely numerous enough. See Marcus, 687 F.3d at 595.

The putative class consists of persons with mobility disabilities

who encountered or will encounter inaccessible aisles at an

Ollie’s store. There may well be millions of wheelchair-bound

Ollie’s customers across all twenty-nine states, but if none of

them suffered or will likely suffer similar class injuries, they

are not class members and do not support a finding of numer-

osity.

b.

The District Court also relied on what it characterized

as “the written complaints of twelve individuals complaining,

15

in one way or another, of various barriers adversely affecting

the navigation of individuals who are wheelchair-bound.”

Ollie’s, 2021 WL 1152981, at *5. Unlike the community sur-

vey or the video, at least some of these customer complaints

support the existence of putative class members with common

ADA injuries. But there are far too few complaints, and not all

of them support the District Court’s finding.

At the outset, we note the parties dispute whether the

customer complaints are admissible as evidence. Ollie’s argues

that the Federal Rules of Evidence apply during the class cer-

tification stage, and that the customer complaints are inadmis-

sible hearsay. Plaintiffs respond that “fact” testimony—as

opposed to expert opinion—need not be admissible to support

class certification. The District Court agreed with plaintiffs,

holding the Federal Rules of Evidence are inapplicable to non-

expert evidence used to certify a class. Ollie’s, 2021 WL

1152981, at *5 n.5. We decline to decide this question. For

even assuming—and it is only an assumption—that the Federal

Rules of Evidence do not govern the admissibility of the cus-

tomer complaints, the record still would not establish numer-

osity.3

To begin, at least one of the twelve customer complaints

does not support membership in the putative class. The rele-

vant email says:

Please pass this on to the management at the

Columbus, GA store. My husband and I recently

visited this store for the first time, and we were

very impressed. My husband is a paraplegic, and

3

Ollie’s has preserved this argument and may raise it again on

remand.

16

uses a wheelchair while shopping. There were

very few places he could not get into, and every

employee he encountered asked if he needed

help. The aisles were clear, and the merchandise

was—for the most part—easy for him to reach.

When we asked for help, it was given cheerfully

and quickly. We enjoyed the experience, and

plan to become regular customers. The employ-

ees of this store went above and beyond, and I

just wanted you to know.

App. 711. The class definition is limited to disabled individuals

who have experienced access barriers in interior access aisles.

This disabled customer reportedly experienced clear aisles at

his local Ollie’s store in Georgia, so he is not a potential class

member. The District Court clearly erred by relying on this

email as evidence of a potential class member.

There may be others. Ollie’s argues that other customer

complaints, closely read, similarly do not support the existence

of class members. For example, Ollie’s argues that the District

Court should have excluded two customer complaints made

outside of Pennsylvania’s two-year statute of limitations for

personal injury claims. The District Court never considered

these arguments. On remand, the District Court should deter-

mine whether the remaining complaints support the existence

of putative class members. To do so, the District Court must be

able to infer from the complaints that an Ollie’s customer with

a mobility disability suffered or will suffer a common ADA

injury that falls within the putative class definition. Otherwise,

the District Court cannot rely on the customer complaints to

determine the existence of putative class members.

17

In any event, even assuming all eleven remaining cus-

tomer complaints support a finding that there are at least eleven

putative class members, and considering the declaration and

the statistical evidence together, as the District Court did, we

still find the evidence far too speculative. To recap, the com-

munity survey tells us nothing concrete about the portion of

disabled residents who shop at Ollie’s stores. The declaration

tells us nothing about what portion of disabled customers suf-

fered common ADA injuries, and little about what number of

disabled residents shop at Ollie’s. And the customer com-

plaints are few. Eleven complaints over almost four years of

company operations are hardly evidence of a sizable class. The

customer complaints overall give us little reason to conclude

that judicial economy supports depriving the apparently small

number of complainants of their day in court by aggregating

their individual claims in a classwide suit.

In short, after considering the record evidence, we have

proof of a class that consists of Allen, Mullen, and at most

eleven others. To establish numerosity, plaintiffs must do more

to prove the existence of actual class members. See In re

Modafinil Antitrust Litig., 837 F.3d at 250 (suggesting a class

of twenty or less would be too small to justify a class action).

If plaintiffs cannot carry the burden on numerosity, Allen and

Mullen may always seek relief individually.

3

While “the number of class members is the starting

point,” trial courts should weigh other factors relevant to the

practicability of joinder under Rule 23(a)(1), including “judi-

cial economy, the claimants’ ability and motivation to litigate

as joined plaintiffs, the financial resources of class members,

the geographic dispersion of class members, the ability to iden-

18

tify future claimants, and whether the claims are for injunctive

relief or for damages.” In re Modafinil Antitrust Litig., 837

F.3d at 250, 253. Plaintiffs argue that factors other than the

numerosity of the class also support the District Court’s finding

that joinder of class members would be impracticable. That

may well be. But the District Court never exercised its broad

discretion to consider these other Rule 23(a)(1) factors, and we

are a court of review, so we decline to weigh these factors for

the first time on appeal. On remand, however, the District

Court remains free to consider plaintiffs’ arguments and decide

whether joinder would be impracticable based on all the rele-

vant factors. We do not decide whether plaintiffs may show

that joinder would be impracticable on this record. We hold

only that the numerosity evidence considered alone is not

enough to satisfy Rule 23(a)(1).

B

A class may be certified only if “there are questions of

law or fact common to the class.” Fed. R. Civ. P. 23(a)(2).

“Commonality requires the plaintiff to demonstrate that the

class members have suffered the same injury. This does not

mean merely that they have all suffered a violation of the same

provision of law.” Dukes, 564 U.S. at 349–50 (citation and

quotation marks omitted). Instead, the claims “must depend

upon a common contention.” Id. at 350. “That common con-

tention, moreover, must be of such a nature that it is capable of

classwide resolution—which means that determination of its

truth or falsity will resolve an issue that is central to the validity

of each one of the claims in one stroke.” Id. This test ensures

that the “claims can productively be litigated at once.” Id.

When deciding whether the class raises a common question,

“the court cannot be bashful. It must resolve all factual or legal

disputes relevant to class certification, even if they overlap

19

with the merits—including disputes touching on elements of

the cause of action.” Marcus, 687 F.3d at 591 (quotation marks

omitted).

The District Court abused its discretion when finding

commonality for two reasons. First, it misapplied the relevant

standards and certified a geographically overbroad class. Sec-

ond, as we explained in Steak ’n Shake, a broad term like

“access barriers” does not give rise to a common injury under

the ADA.

1

The District Court found commonality satisfied for a

class consisting of all Ollie’s stores in the United States. The

District Court reasoned that “[i]f Ollie’s policies and proce-

dures do, in fact, cause access barriers to unlawfully restrict

individuals with disabilities from obtaining their desired

goods, then proposed members who endured violations have

suffered the same injury, the resolution of which will resolve a

central issue in one fell stroke.” Ollie’s, 2021 WL 1152981, at

*7. “As a result,” the District Court concluded, “Plaintiffs have

satisfied their burden of showing by a preponderance of the

evidence that there are questions of law or fact common to the

proposed class.” Id. The conclusion does not follow from the

premise.

Before certifying the proposed class, the District Court

must answer the very question it asked: whether plaintiffs have

significant proof that Ollie’s corporate policies, procedures, or

practices in fact cause discrimination by stores nationwide.

Posing a hypothetical common question is not enough to sat-

isfy plaintiffs’ burden of proof. There must be evidence the

class proceeding will likely “produce a common answer.”

20

Dukes, 564 U.S. at 352. By failing to answer the commonality

question, the District Court deferred plaintiffs’ need to show

commonality.

The District Court’s legal error is not harmless. Our

review of the record shows that commonality is not met by a

preponderance of the evidence for this nationwide class. It is

not enough that Ollie’s has corporate policies and that some or

all stores in Pennsylvania pay inadequate attention to aisle

accessibility. Stitching together a corporate-wide class requires

more.

“Rule 23 requires more than allegations, initial evi-

dence, or a threshold showing. It requires a showing that each

of the Rule 23 requirements has been met by a preponderance

of the evidence at the time of class certification.” Ferreras v.

Am. Airlines, Inc., 946 F.3d 178, 184 (3d Cir. 2019). When

proceeding on a corporate-wide basis, the Supreme Court has

required proof of a policy or practice of discrimination before

certifying a corporate-wide class. Dukes, 564 U.S. at 353.

Without a corporate-wide policy that causes discrimination

(including disparate impacts when relevant, as under Title

VII), a plaintiff must have significant proof of a common mode

of exercising discretion that “pervades the entire company,”

not just stores in some states or regions of the country.

Rodriguez v. Nat’l City Bank, 726 F.3d 372, 383–85 (3d Cir.

2013) (quoting Dukes, 564 U.S. at 356). There is no significant

proof of either here.

Like any large retailer, Ollie’s has several corporate pol-

icies governing its stores. These include visual store standards

governing the placement and marketing of goods, general

safety, loss prevention, and maintenance policies, and a “Yes,

I Can” program, requiring stores to retrieve goods for patrons

21

that have trouble accessing them. Ollie’s specifically requires

stores to ensure wheelchairs can pass easily through aisles. So

as in Dukes, Ollie’s “announced policy forbids” the discrimi-

natory conduct alleged by the class—inaccessible interior

aisles. Dukes, 564 U.S. at 353. Ollie’s, to be sure, allows local

stores discretion when maintaining adequate paths of travel for

wheelchairs. But that kind of discretionary decision-making “is

just the opposite of a uniform . . . practice that would provide

the commonality needed for a class action.” Id. at 355. As the

Supreme Court said in Dukes, allowing stores discretion is “a

very common and presumptively reasonable way of doing

business.” Id. It is not evidence of a common corporate-wide

injury.

On appeal, plaintiffs focus on Ollie’s visual store stand-

ards. They argue that the standards emphasize placing as much

stock as possible on the sales floor. For example, they point out

that photographs in the visual standards illustrate items stacked

to the side of aisles as well as tight placement of clothing racks.

Plaintiffs stress in their briefing that Ollie’s visual store stand-

ards are “a plausible explanation,” a “plausible causal connec-

tion,” or “a plausible, direct cause of the proliferation of alleg-

edly discriminatory barriers.” Appellees’ Br. 15, 27. Perhaps.

But plaintiffs must do more than assert a plausible causal

explanation at this stage. They must show that the visual store

standards are more likely than not a common cause of a failure

to maintain accessible aisles across Ollie’s stores in the United

States.

They have not met that burden. There is no proof that

the visual standards cause inaccessible aisles across all Ollie’s

stores nationwide. The investigative record is limited to stores

in Pennsylvania. On this record, we do not know whether the

visual standards “may have resulted in” discrimination “in

22

some regions . . . but not at all in others.” Rodriguez, 726 F.3d

at 385. Proceeding on a corporate-wide basis against a corpo-

ration with over four hundred stores in twenty-nine states

requires more than plausible allegations backed by

Pennsylvania-only evidence.

The only evidence from outside Pennsylvania is less

than a dozen customer emails reporting inaccessible aisles.4

Setting aside the potential inadmissibility of the emails, Dukes

rejected “anecdotal evidence” as “too weak” to support a com-

mon practice. Dukes, 564 U.S. at 358. Dukes involved 120

employee affidavits, signed under penalty of perjury, sharing

stories of employment discrimination by Wal-Mart supervi-

sors. Id. The Supreme Court said these affidavits proved noth-

ing: “More than half of these reports are concentrated in only

6 States (Alabama, California, Florida, Missouri, Texas, and

Wisconsin); half of all States have only one or two anecdotes;

and 14 States have no anecdotes about Wal–Mart’s operations

at all.” Id. The anecdotal evidence here is far weaker than in

Dukes. Less than a dozen email anecdotes over four years, from

a corporation with over four hundred stores in twenty-nine

states and thousands of employees exercising discretion,

“prove nothing at all.” Id. at 358 n.9.

The District Court abused its discretion by certifying a

corporate-wide class on this record. We leave it to the District

Court to decide whether a geographically narrower class lim-

4

As we noted earlier, at least one customer reportedly

experienced clear aisles. Another customer complained about

the same store in Monaca, Pennsylvania, that plaintiff Mullen

visited.

23

ited to some or all Ollie’s stores in Pennsylvania would satisfy

the commonality requirement.

2

The District Court also abused its discretion when find-

ing commonality for a separate reason. The District Court cer-

tified a class embracing all persons with qualified mobility dis-

abilities who have “experienced access barriers in interior

paths of travel.” Ollie’s, 2021 WL 1152981, at *8–9. That class

definition conflicts with our decision in Steak ’n Shake. A class

that includes any and all access barriers is overbroad.

In Steak ’n Shake, the trial court certified a class con-

sisting of persons with qualified disabilities who “encountered

accessibility barriers at any Steak ’n Shake restaurant.” 897

F.3d at 487–88. We reversed the trial court’s commonality

finding for two independent reasons.

First, the class representatives’ alleged injuries were

based on excessively steep parking slopes, but the class was

not limited to restaurant patrons who suffered an injury in a

parking lot. Id. at 489–90. Second, and more relevant here,

even if the class definition were limited to parking facilities,

we observed, “the wide variety of [ADA] regulations . . . reveal

that there are still various types of ADA violations that could

occur specifically in a parking facility.” Id. at 490. Access bar-

riers could include excessively steep parking lots but could also

include inadequate signs. Id. “The wide variety of potential

ADA violations captured in the broad class definition,” we

held, meant that the claims could not be litigated together all at

once. Id.

24

The class definition here similarly applies to any

“access barriers.” Ollie’s, 2021 WL 1152981, at *9. Plaintiffs

argue that Steak ’n Shake is distinguishable because the class

is limited to access barriers in interior paths of travel, not every

part of a store, but that entirely ignores our second reason for

finding no commonality. In Steak ’n Shake, we warned against

the broad term “accessibility barriers,” as it sweeps in a broad

array of potential claims with little in common. The same is

true here. Some “access barriers” are fixtures, like pillars, fixed

tables, or aisle shelves. There is no evidence those types of

fixed barriers result from any common policy or employee

practice. Plaintiffs have not shown that Ollie’s has any central-

ized blueprint or policy that requires stores to build narrow

aisles or place pillars, tables, and shelving in the middle of the

way. Cf. Colorado Cross Disability Coal. v. Abercrombie &

Fitch Co., 765 F.3d 1205, 1216–17 (10th Cir. 2014) (porch

design common to all 231 stores involved raised common

question). Without evidence of a centralized store blueprint,

we cannot say claims against those types of access barriers in

interior paths of travel can be productively litigated together.

On appeal, plaintiffs focus their argument on movable

barriers like merchandising, clothing racks, inventory carts,

and the like. Plaintiffs mainly argue that Ollie’s stores violate

their obligation to maintain 36-inch-wide accessible aisles by

recurringly placing merchandising in the way. But that is not

the class the District Court certified. At plaintiffs’ request, the

District Court certified a class that applies to any kind of access

barrier in interior paths of travel, not just merchandising wares

blocking accessible aisles. We cannot cure the overbreadth of

the class definition on appeal. We leave it to the District Court

to decide whether a narrower class limited to particular mer-

chandising wares or particular merchandising display practices

25

blocking interior aisles could satisfy the commonality require-

ment.

* * *

Plaintiffs have failed to clear the first two hurdles of

Rule 23(a). We will vacate and remand. We need not decide

whether the remaining requirements of Rule 23 were satisfied.

On remand, however, the District Court should clarify what

classwide legal theory or theories of liability plaintiffs are pur-

suing and determine whether each is suitable for classwide

proof and common relief. As we have explained, trial courts

must include in the certification order or opinion “(1) a readily

discernible, clear, and precise statement of the parameters

defining the class or classes to be certified, and (2) a readily

discernible, clear, and complete list of the claims, issues or

defenses to be treated on a class basis.” Steak ’n Shake, 897

F.3d at 488 n.21. Trial courts must then “determine what ele-

ments plaintiffs would have to prove under that theory to reach

a finding of liability and relief, and then assess whether this

proof can be made within the parameters of Rule 23.” Hohider

v. United Parcel Serv., Inc., 574 F.3d 169, 197 (3d Cir. 2009).

And under Rule 23(b)(2), the provision under which plaintiffs

here seek class certification, trial courts must explain how

classwide relief would be appropriate for each legal injury.

“Rule 23(b)(2) applies only when a single injunction or declar-

atory judgment would provide relief to each member of the

class. It does not authorize class certification when each indi-

vidual class member would be entitled to a different injunction

or declaratory judgment against the defendant.” Dukes, 564

U.S. at 360.

There are significant cohesion concerns with some of

the theories of classwide relief advocated by plaintiffs. For

26

example, to the extent plaintiffs seek removal of “architectural

barriers” in Ollie’s existing facilities, liability turns on a variety

of individualized factors, including “the nature and cost of” the

steps needed to remove each barrier. 42 U.S.C. § 12181(9)(A).

Common proof and common relief relevant to that theory may

prove elusive. On remand, the District Court must address

these differing ADA standards and rules to determine whether

common proof and common relief would be available for each

distinct claim raised by the putative class.

27

PORTER, Circuit Judge, concurring.

Today, we sidestep one of the principal legal issues

raised by this appeal: whether the Federal Rules of Evidence

apply to fact evidence introduced in support of class certifica-

tion. Respectfully, I see no reason to duck the question. The

issue is properly presented and adequately briefed. The District

Court may still need to answer this question on remand. And

courts are divided. By our indecision, we prolong needless

uncertainty in an important area of the law, and we undermine

the uniformity required by the Federal Rules of Evidence. I

would prefer to end any lingering uncertainty now, by holding

that statutory text and precedent require applying the Federal

Rules of Evidence before certifying a class under Rule 23.

I

As the Supreme Court has emphasized, “Rule 23 does

not set forth a mere pleading standard. A party seeking class

certification must affirmatively demonstrate his compliance

with the Rule—that is, he must be prepared to prove that there

are in fact sufficiently numerous parties, common questions of

law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

350 (2011). “This calls for a rigorous analysis that usually

requires courts to make factual findings and legal conclusions

that overlap the underlying merits of the suit.” Mielo v. Steak

‘n Shake Operations, Inc., 897 F.3d 467, 482 (3d Cir. 2018).

In Blood Reagents, we held rigorous analysis means

“that a plaintiff cannot rely on challenged expert testimony . . .

to demonstrate conformity with Rule 23 unless the plaintiff

also demonstrates, and the trial court finds, that the expert tes-

timony satisfies the standard set out in Daubert.” In re Blood

Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015). We

rejected the trial court’s acceptance of evidence that “could

evolve” into admissible form later. Id. at 186. Daubert, of

course, is based on Federal Rule of Evidence 702. See Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589–92 (1993).

So, under Blood Reagents, expert evidence used to certify a

class action must be admissible under Federal Rule of

Evidence 702.

We have never addressed whether fact evidence, rather

than expert opinion, must likewise be admissible. The District

Court rejected Ollie’s hearsay objection to the customer ser-

vice emails by holding that non-expert evidence used to certify

a class need not be admissible. See Allen v. Ollie’s Bargain

Outlet, Inc., No. 2:19-CV-281, 2021 WL 1152981, at *5 n.5

(W.D. Pa. Mar. 26, 2021). That conclusion conflicts with the

Federal Rules of Evidence.

The Federal Rules of Evidence are an exercise of legis-

lative authority, so we read the rules “as we would any statute.”

Daubert, 509 U.S. at 587. “The specific courts and proceedings

to which the rules apply, along with exceptions, are set out in

Rule 1101.” Fed. R. Evid. 101(a). Rule 1101 says that the rules

apply to “United States district courts” and in “civil cases and

proceedings.” Fed. R. Evid. 1101(a), (b). That means all civil

cases and proceedings unless an exception applies.

Rule 1101 makes three exceptions, but as the Seventh

Circuit has noted, Rule 23 proceedings are “not among the pro-

ceedings excepted.” Mars Steel Corp. v. Cont’l Bank N.A., 880

F.2d 928, 938 (7th Cir. 1989) (en banc) (holding that Rule

23(e) fairness hearings are not exempt). The first two excep-

tions apply to determinations “on a preliminary question of fact

governing admissibility” and “grand-jury proceedings,” so

they are irrelevant. Fed. R. Evid. 1101(d)(1), (2). A third and

2

broader exception applies to “miscellaneous proceedings such

as: extradition or rendition; issuing an arrest warrant, criminal

summons, or search warrant; a preliminary examination in a

criminal case; sentencing; granting or revoking probation or

supervised release; and considering whether to release on bail

or otherwise.” Fed. R. Evid. 1101(d)(3). No civil proceedings

are listed in the miscellaneous-proceedings exception.

While the list is not exclusive, in context, the miscella-

neous-proceedings exception is best read as limited to closely

analogous collateral proceedings, like hearings to transfer a

juvenile delinquent for prosecution as an adult. See Gov’t of

Virgin Islands in Interest of A.M., 34 F.3d 153, 161–62 (3d Cir.

1994) (allowing hearsay in a juvenile transfer hearing because

the hearing was analogous to a preliminary examination in a

criminal case). Otherwise, the exception would swallow the

rule. Even if the exception may be extended to some ordinary

civil proceedings, class certification proceedings are not

closely analogous to any of the listed “miscellaneous proceed-

ings,” so context suggests they do not fall under this exception,

much like Rule 23(e) hearings. The conclusion is clear: Class

certification proceedings are not exempt from the rules of evi-

dence. See Anderson Living Tr. v. WPX Energy Prod., LLC,

306 F.R.D. 312, 378 n.39 (D.N.M. 2015) (“The similarity of a

class certification hearing to a trial suggests that a class certifi-

cation hearing is not a ‘miscellaneous proceeding such as’ a

hearing on sentencing, extradition, preliminary examination,

probation violation, or setting bail.”).

Our decision in Blood Reagents, moreover, prevents us

from dispensing with the Federal Rules of Evidence. The

District Court distinguished Blood Reagents as involving

expert evidence. Ollie’s, 2021 WL 1152981, at *5 n.5. But for

purposes of this question there is no principled basis for distin-

3

guishing between fact and expert evidence. Nothing in the

rules of evidence allows us to selectively apply them. On the

contrary, Federal Rule of Evidence 1101 says that “[t]hese

rules”—meaning all rules, including hearsay rules—apply to

civil proceedings generally. Fed. R. Evid. 1101(a), (b).

No hearsay exception applies to Rule 23 proceedings

either. Hearsay is generally inadmissible unless allowed by

rules adopted by the Supreme Court or statute. Fed. R. Evid.

802. Several rules of civil procedure permit proof by affidavit

instead of live testimony, allowing modest exceptions to the

hearsay rule. See, e.g., Fed. R. Civ. P. 4(l), 32(a)(1)(B), 65(b).

One general exception is Federal Rule of Civil Procedure

43(c). That rule allows affidavits “[w]hen a motion relies on

facts outside the record.” Fed. R. Civ. P. 43(c); see also 28

U.S.C. § 1746 (permitting the use of declarations instead). But

while Federal Rule of Civil Procedure 43(c) allows considera-

ble flexibility in avoiding the live testimony required by the

hearsay rule, it does not allow simply attaching hearsay—like

the customer complaints—to a motion. That is what happened

here.

In short, “simple logic indicates,” and statutory text

confirms, that Rule 23 is not satisfied when the “evidence prof-

fered would not be admissible as proof of anything.” Behrend

v. Comcast Corp., 655 F.3d 182, 215 n.18 (3d Cir. 2011)

(Jordan, J., concurring in the judgment and dissenting in part),

rev’d, 569 U.S. 27 (2013). Rigorous analysis and statutory text

demand nothing less than admissible evidence at the time of

certification.

4

II

Overlooking Federal Rule of Evidence 1101, several

circuits have held that the rules of evidence do not apply to

class certification proceedings. The first circuit to openly adopt

this approach was the Eighth Circuit. See In re Zurn Pex

Plumbing Prod. Liab. Litig., 644 F.3d 604, 611–14 (8th Cir.

2011). In Zurn, the Eighth Circuit affirmed a trial court’s

watered-down Daubert analysis, rejecting the defendants’

argument that evidence under Rule 23 must “ultimately be

admissible at trial.” Id. at 611. Judge Gruender dissented. Id. at

626–30. The Ninth Circuit followed some years later. In the

Ninth Circuit, “[i]nadmissibility alone is not a proper basis to

reject evidence submitted in support of class certification.” Sali

v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1004 (9th Cir.

2018).1 A trial court “may consider whether the plaintiff’s

proof is, or will likely lead to, admissible evidence.” Id. at

1006. “But admissibility must not be dispositive. Instead, an

inquiry into the evidence’s ultimate admissibility should go to

the weight that evidence is given at the class certification

stage.” Id. The Sixth Circuit has recently joined in part. It has

held, “as have the Eighth and Ninth Circuits, that . . . ‘eviden-

tiary proof’ need not amount to admissible evidence, at least

with respect to nonexpert evidence.” Lyngaas v. Curaden AG,

992 F.3d 412, 428–29 (6th Cir. 2021).

Several circuits disagree with some or all of this. The

First Circuit has rejected inadmissible hearsay evidence to sup-

port standing for class members, reasoning that “class certifi-

1

But see Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 639–

40 (9th Cir. 2010) (Ikuta, J., dissenting) (arguing that

inadmissible expert testimony cannot be used to meet Rule 23),

rev’d, 564 U.S. 338 (2011).

5

cation provides no occasion for jettisoning the rules of evi-

dence and procedure, the Seventh Amendment, or the dictate

of the Rules Enabling Act.” In re Asacol Antitrust Litig., 907

F.3d 42, 53 (1st Cir. 2018). That same logic would require

applying the Federal Rules of Evidence to support class certi-

fication. The Fifth Circuit has held that “findings must be made

based on adequate admissible evidence to justify class certifi-

cation.” Unger v. Amedisys Inc., 401 F.3d 316, 319 (5th Cir.

2005).2 At least two circuits have held, as we did in Blood

Reagents, that expert testimony must be admissible under

Daubert at the class certification stage. See Messner v.

Northshore Univ. HealthSystem, 669 F.3d 802, 812–13 (7th

Cir. 2012); Prantil v. Arkema Inc., 986 F.3d 570, 575–76 (5th

Cir. 2021) (“[I]f an expert’s opinion would not be admissible

at trial, it should not pave the way for certifying a proposed

class.”).

I agree with the First and Fifth Circuits: Evidence used

to certify a class must be admissible. The Sixth, Eighth, and

Ninth Circuits overlook Federal Rule of Evidence 1101 and the

rigorous analysis required by precedent. The various argu-

ments they marshal in support of dispensing with the rules of

evidence are unpersuasive. I will address each argument in

turn.

2

The Sixth Circuit dismissed Unger’s admissibility

requirement as dictum. Lyngaas v. Curaden AG, 992 F.3d 412,

430 (6th Cir. 2021). But the Fifth Circuit has relied on Unger

to require admissible evidence. Prantil v. Arkema Inc., 986

F.3d 570, 575–76 & n.18 (5th Cir. 2021).

6

A

First, these circuits point to Rule 23(c)’s requirement

that class actions be certified at “an early practicable time after

a person sues or is sued as a class representative.” Sali, 909

F.3d at 1004 (quoting Fed. R. Civ. P. 23(c)(1)(A)). The need

for speed, these courts reason, weighs against applying the

Federal Rules of Evidence. That is unpersuasive. This rule was

amended in 2003 to abrogate the certify-first-ask-questions-

later practice followed in some circuits. In re Hydrogen

Peroxide Antitrust Litig., 552 F.3d 305, 318–19 (3d Cir. 2008).

Before 2003, Rule 23 said the class must be certified “as soon

as practicable after commencement of an action.” Id. at 318.

The change to “an early practicable time” was meant to encour-

age rigorous compliance with the requirements of Rule 23

before certifying a class. Id. Under the current rule, “class cer-

tifications are no longer conditional,” so a trial court “should

delay certifying a class until it is satisfied that all Rule 23

requirements have been met.” Zurn, 644 F.3d at 629

(Gruender, J., dissenting). Requiring that evidence be admissi-

ble does not conflict with this open-ended rule. If anything, the

2003 amendment suggests trial courts should not defer admis-

sibility rulings relevant to certification until trial. See, e.g., Sali,

909 F.3d at 1006 (deferring admissibility in tension with 2003

amendment).

B

Second, these circuits assert that an order certifying a

class is merely “tentative” and “preliminary,” as “[a]n order

that grants or denies class certification may be altered or

amended before final judgment.” Id. at 1004 (quoting Fed. R.

Civ. P. 23(c)(1)(C)). Because class certification orders are not

technically final, “common sense,” they say, suggests “the for-

7

mal strictures of trial” should not apply at the certification

stage, including the Federal Rules of Evidence. Id. Otherwise,

they argue, class certification proceedings would turn into

evidentiary shooting matches. Id. For legal support, these cir-

cuits lean on the Supreme Court’s statement that in class pro-

ceedings, “a preliminary determination of the merits may result

in substantial prejudice to a defendant, since of necessity [a

class proceeding] is not accompanied by the traditional rules

and procedures applicable to civil trials.” Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 178 (1974), quoted in Zurn, 644 F.3d

at 613–14. There are many problems with this line of

argument.

For one, that snippet of Eisen preceded the 2003 amend-

ments to Rule 23 and has since been repudiated as dictum. The

relevant part of Eisen held only that class representatives could

not shift the cost of providing class-member notice to defend-

ants by showing the class was likely to prevail on the merits.

Eisen, 417 U.S. at 177–78. In Dukes, the Supreme Court said

that Eisen’s general warning against preliminary determina-

tions of the merits is “the purest dictum and is contradicted by

our other cases.” 564 U.S. at 351 n.6. Eisen’s related statement

about “traditional rules and procedures” is dictum too. For

good measure, Dukes also expressed “doubt” at the trial court’s

conclusion that Daubert did not apply when certifying a class.

Id. at 354. One could even say that “the Supreme Court has

expressed disapproval of the position taken by” the Sixth,

Eighth, and Ninth Circuits. Zurn, 644 F.3d at 627 (Gruender,

J., dissenting); see also Behrend, 655 F.3d at 215 n.18 (Jordan,

J., concurring in the judgment and dissenting in part) (noting

that “it is implicit” in Dukes that Daubert applies). But even if

it has not, after the 2003 amendments and Dukes, Eisen’s cryp-

8

tic dictum about “traditional rules and procedures” does not

support dispensing with the rules of evidence.

For another, Rule 23 certification orders are not “tenta-

tive” in any practical sense. Trial courts cannot make “tenta-

tive” Rule 23 findings. “When courts harbor doubt as to

whether a plaintiff has carried her burden under Rule 23, the

class should not be certified.” Steak ’n Shake, 897 F.3d at 483.

Under our precedent, “it is no longer accurate—however true

it might have been in the past—that class certification hearings

are preliminary or conditional in the sense that a judge is going

to go back and reconsider his or her class certification order.”

Linda S. Mullenix, Putting Proponents to Their Proof:

Evidentiary Rules at Class Certification, 82 Geo. Wash. L.

Rev. 606, 636 (2014). “Although a judge subsequently may

revise a class certification order, this practice has become

extremely rare.” Id. at 637. In all but exceptional cases, an or-

der certifying a class will be the trial court’s final word on the

matter.

For similar reasons, the rhetoric about evidentiary

shooting matches is also behind the times. Class certification

proceedings are already evidentiary shooting matches, some-

times requiring extensive evidentiary hearings. Id. at 639–41.

The question is whether the shooting match will be played

according to the uniform rules enacted by Congress, no rules

at all, or only the rules judges really like. The correct answer is

the rules enacted by Congress.

Characterizing Rule 23 orders certifying a class action

as “tentative” and “preliminary,” moreover, trivializes the con-

sequences of certifying a class. “As a practical matter, the cer-

tification decision is typically a game-changer, often the whole

ballgame, for plaintiffs and plaintiffs’ counsel.” Marcus v.

9

BMW of N. Am., LLC, 687 F.3d 583, 591 n.2. Rule 23(b)(2)

class certifications compel unnamed persons to join a lawsuit

they do not control, litigated by lawyers they did not choose,

where a judgment binds them, win or lose. Cooper v. Fed.

Reserve Bank of Richmond, 467 U.S. 867, 874 (1984); Dukes,

564 U.S. at 362. Defendants also face significant practical con-

sequences. Once a class is certified, the risk of “devastating

loss” often leads to “in terrorem” class settlements even for

“questionable claims.” AT&T Mobility LLC v. Concepcion,

563 U.S. 333, 350 (2011); see also Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 445 n.3 (2010)

(Ginsburg, J., dissenting) (“A court’s decision to certify a class

. . . places pressure on the defendant to settle even unmeritori-

ous claims.”); Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 259 F.3d 154, 165 (3d Cir. 2001) (“[C]ertifying the

class may place unwarranted or hydraulic pressure to settle on

defendants.”). And plaintiffs, too, may be denied meaningful

redress if defendants are allowed to defeat class actions by lard-

ing the record with inadmissible hearsay, unauthenticated rec-

ords, or unreliable opinion evidence. The search for truth

encouraged by the Federal Rules of Evidence cuts both ways.

C

The Eighth Circuit has also suggested that because class

certification findings are made by a judge, not a jury, there is

less reason to apply Daubert rigorously, and presumably other

rules of evidence too. Zurn, 644 F.3d at 613. But this distinc-

tion finds no support in the Federal Rules of Evidence or our

caselaw. The Federal Rules of Evidence require applying

Daubert faithfully in bench trials too. UGI Sunbury LLC v. A

Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832–33

(3d Cir. 2020). Some rules of evidence, to be sure, expressly

reference jury trials and do not apply to bench trials. Rule 403,

10

for example, allows a trial court to “exclude relevant evidence

if its probative value is substantially outweighed by a danger

of . . . misleading the jury.” Fed. R. Evid. 403. That rule is

irrelevant in a bench trial. But hearsay is generally inadmissi-

ble no matter who the trier of fact happens to be. Fed. R. Evid.

802. So, as with Daubert, there is no “bench trial” exception to

hearsay.

* * *

Reasonable minds may disagree over the wisdom or

practicality of applying the Federal Rules of Evidence, or hear-

say rules specifically, in Rule 23 certification proceedings. But

those policy judgments are for the Supreme Court and

Congress to make. See 28 U.S.C. § 2072(a). We must apply the

rules of evidence faithfully within their proper scope. That

scope includes Rule 23 proceedings.

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