Friday, October 23, 2009

Classes of Disabled Franchise Patrons Certified in ADA Action Against Burger King

This posting was written by Pete Reap, Editor of CCH Business Franchise Guide.

Ten separate classes of Californian mobility-impaired patrons of ten Burger King restaurant franchises were entitled to be certified against the franchisor, Burger King, for violations of the Americans with Disabilities Act (ADA) and two California statutes, according to a federal district court in San Francisco.

The plaintiffs had sought to proceed as one large class of mobility-impaired patrons of 92 California Burger King franchises. However, the physical differences among the 92 franchises would predominate over the common issues because there was no common blueprint among them, the court determined.

Whether or not any store was ever out of ADA compliance would have to be determined store-by-store, feature-by-feature, before turning to the easier question of whether Burger King—as the franchisor/lessor—would have a duty to force the franchises to remediate. Thus, ten separate classes were certified for disabled patrons of each of the ten individual franchises where a named plaintiff encountered alleged access barriers.


Burger King did not dispute that the plaintiffs established commonality for each separate class of patrons of the ten restaurants because every patron of a particular restaurant faced identically alleged access barriers. Because all mobility-impaired patrons of a particular restaurant who used wheelchairs faced identical facilities and identical access barriers, their common interest in assuring that all the features at the particular restaurant were in statutory compliance would predominate over any individual differences among them, the court held.


The typicality requirement for certification was not disputed by Burger King and was satisfied because the named plaintiffs all used wheelchairs or scooters, the court ruled. By relying on a combination of census data showing that there were more than 150,000 people in California who used wheelchairs and scooters, declarations from numerous potential class members, and evidence of Burger King’s popularity, the plaintiffs satisfied the numerosity requirement.

Adequacy of Class Counsel

Burger King challenged the adequacy of the proposed class counsel on the grounds that five separate law firms sought joint appointment as lead counsel. It was best to have only one law firm as class counsel, the court commented, citing its own 35-years of practice and presiding experience. Thus, the plaintiffs were ordered to submit a memorandum and declaration explaining why anyone other than a single, court-selected attorney and his firm should be appointed as class counsel.

Franchisees as Defendants

Burger King's motion to add the franchisees/lessees of the ten restaurants as defendants was granted by the court. The plaintiffs did not dispute that the franchisees/lessees were jointly and severally liable with Burger King for any violations, or that the claims against them did not arise out of the same transactions and occurrences. Thus, because the joinder of the franchisees/lessees to the action would be useful in efficiently affecting any necessary injunctive relief at the stores under their control, Burger King's motion to add them to the action was granted.

The decision is Castaneda v. Burger King Corp., CCH Business Franchise Guide ¶14,238

No comments: