### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20

- 8005
P RESTON B ENNETT , Plaintiff

- Petitioner ,

v.
T HOMAS D ART , Sheriff of Cook County, and C OOK C OUNTY , I LLINOIS , Defendants

- R espondents

.

____________________ Petition for Leave to Appeal from the Unit ed States District Court for the Northern District of Illinois, Eastern Division. No. 18

- cv
- 04268

— John Robert Blakey , Judge

.

____________________ S UBMITTED M ARCH 4, 2020

— D ECIDED M ARCH 16, 2020

____________________
Before W OOD , Chief Judge , and E ASTERBROOK and R OVNER , Circuit Judges

. P ER C URIAM

. When Preston BenneU was locked up in the Cook County Jail, he was assigned to Division 10, which houses detainees who need canes, crutc hes, 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 fixtures2 No. 20

- 8005
needed for such persons to use showers and bathro oms 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 applica tion , ruling that the appropriate accom modation of any detainee’s situation depends on pers onal 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 19 92, 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 Stand ards 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 Structur al 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 wesummarily reverse. (The papers proposing and opposing interlocutory review explore the legal questions in detail.) The j udge was right to say that, to determine wh ether 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 in tervention rather than a means to avoid it. BenneU, by contrast, proposes a class thatwill 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 clas s
- 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.