Rule 23(a) numerosity is one of the less frequently litigated class certification requirements, which makes the U.S. Court of Appeals for the Seventh Circuit's recent decision in Anderson v. Weinert Enterprises, Inc. notable. There, the Seventh Circuit held that the district court did not abuse its discretion when it considered factors relating to the practicability of joinder, based on the evidence before it, when denying certification of a proposed class consisting of thirty-seven members.
Plaintiff Richard Anderson worked as a seasonal employee for a local roofing company, Defendant Weinert Enterprises, Inc., in northeast Wisconsin. Anderson brought suit against Weinert in the U.S. District Court for the Eastern District of Wisconsin following a dispute over how Weinert calculated overtime wages. Anderson initially alleged claims under both the federal Fair Labor Standards Act and Wisconsin state wage and hour laws, seeking to litigate his FLSA claim as a collective action pursuant to 19 U.S.C. § 216(b) and his state wage and hour claims as a class action under Federal Rule of Civil Procedure 23. Failing to recruit enough other Weinert employees for his collective action, Anderson ultimately settled his FLSA claim and proceeded with his state law claims as a putative class action. Anderson's proposed class consisted of "all hourly employees who worked on the jobsite for the Defendant on or after June 14, 2016."
When Anderson moved for class certification in April 2019, he identified thirty-seven former and current Weinert employees as proposed class members and requested that the district court also include all employees Weinert expected to hire for the 2019 season. Denying class certification, the district court first held the class could not include any employees hired in the future, leaving only the thirty-seven current and former employees in the proposed class.
Rule 23(a)(1) of the Federal Rules of Civil Procedure requires that a party moving for class certification establish that the proposed "class is so numerous that joinder of all members is impracticable." Because all but two members of Anderson's thirty-seven-member proposed class lived within a 50-mile radius of the courthouse, and seeing no evidence that Anderson would have difficulty contacting the other proposed class members, the district court held that joinder in a single action was not impractical. Further, the court held that the relatively small potential damages awards available for individual plaintiffs under Wisconsin's wage and hour laws did not render individual litigation impracticable under Rule 23(a)(1).
Anderson appealed to the Seventh Circuit. In a unanimous decision, the panel affirmed the district court's denial of class certification, holding that the district court did not abuse its discretion by considering geographic dispersion, overall class size, the small dollar value of each individual claim, and the ease of contacting the class members when assessing Anderson's motion for class certification. The court emphasized that while a forty-member class is often regarded as the minimum threshold for numerosity under Seventh Circuit case law, Rule 23(a) requires that joinder be impracticable for a class to be certified, regardless of the number of proposed class members. The panel held that, even if the district court had included employees hired in 2019 in the proposed class, putting the total number of class members over the forty-member benchmark, it still would have been proper for the district court to consider factors relating to the practicability of joinder based on the evidence before it.
While the Seventh Circuit's decision made clear that "[o]ur holding imposes no immovable benchmarks for meeting Rule 23(a)'s numerosity requirement," and that "40 class members will often be enough to satisfy numerosity," "the controlling inquiry remains the practicability of joinder." "Some classes may involve such large numbers of potential members that volume alone will make joinder impracticable," however, the court emphasized that "the inquiry is fact and circumstance dependent, and future cases will require this careful line drawing." Given the scarcity of detailed discussions of the numerosity requirement in the case law, litigators should expect Anderson to serve as a guide for the type of line-drawing the Seventh Circuit requires in this area.
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