In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 20-8005

PRESTON BENNETT,

Plaintiff-Petitioner,

v.

THOMAS DART, Sheriff of Cook County, and COOK COUNTY,

ILLINOIS,

Defendants-Respondents.

____________________

Petition for Leave to Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 18-cv-04268 — John Robert Blakey, Judge.

____________________

SUBMITTED MARCH 4, 2020 — DECIDED MARCH 16, 2020

____________________

Before WOOD, Chief Judge, and EASTERBROOK and ROVNER,

Circuit Judges.

PER CURIAM. When Preston BenneU was locked up in the 

Cook County Jail, he was assigned to Division 10, which 

houses detainees who need canes, crutches, or walkers. He 

alleges in this suit under the Americans with Disabilities Act, 

42 U.S.C. §§ 12131–34, and the Rehabilitation Act, 29 U.S.C. 

§794, that Division 10 lacks the grab bars and other fixtures
2 No. 20-8005

needed for such persons to use showers and bathrooms safely. BenneU adds that he fell and was injured as a result of 

this deficiency.

BenneU wants to represent a class of detainees who need 

canes, crutches, or walkers. The district court denied his initial application, ruling that the appropriate accommodation 

of any detainee’s situation depends on personal characteristics, so common questions do not predominate. See Fed. R. 

Civ. P. 23(b)(3). BenneU proposed an alternative class that 

would avoid all person-specific questions by contending that 

Division 10, which was constructed in 1992, violates a regulation providing that “as of March 7, 1988 ... construction[] 

or alteration of buildings” must comply with the Uniform 

Federal Accessibility Standards (UFAS or the Standards). 28 

C.F.R. §42.522(b). The Standards require accessible toilets to 

have grab bars nearby, UFAS §4.17.6, and accessible showers 

to have mounted seats, UFAS §4.21.3. The district court rejected this proposal too, writing:

for this Court to determine whether the ADA and Rehab Act’s 

Structural Standards control—thereby mooting the reasonable 

accommodation inquiry—it would need to rule on the merits of 

Plaintiff’s case.

The judge thought that such a decision would “run[] afoul of 

the rule against one-way intervention.”

BenneU has asked for our leave to take an interlocutory 

appeal under Rule 23(f). That petition is granted, and we 

summarily reverse. (The papers proposing and opposing interlocutory review explore the legal questions in detail.) The 

judge was right to say that, to determine whether the Standards control, he would need to decide a big chunk of the 

merits. But that’s not necessary.
No. 20-8005 3

Rule 23(a) and (b) provides a list of requirements for class 

certification, all of which must be met, see Wal-Mart Stores, 

Inc. v. Dukes, 564 U.S. 338 (2011), but surety of prevailing on 

the merits is not among them. Classes can lose as well as 

win. The district judge’s view that a class cannot be certified 

unless the plaintiff has already prevailed on the central legal 

issue is a formula for one-way intervention rather than a 

means to avoid it. BenneU, by contrast, proposes a class that 

will win if the Standards apply (and were violated, to detainees’ detriment) and otherwise will lose. That’s how class 

actions should proceed.

The district court’s class-certification decision is vacated, 

and the case is remanded for the certification of an appropriate class if all applicable standards of Rule 23(a) and (b) have 

been met.