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40 May Not Be the Magic Number to Certify a Wage Class


January 11, 2022

A year after the Seventh Circuit ruled that fewer than 40 workers in an overtime suit may be enough for class certification, attorneys told Law360 the decision highlights other factors to consider when assessing whether a class action meets a key requirement in a category called numerosity.

In Anderson v. Weinert Enterprises Inc., the appeals court denied class certification for a group of 37 roofing company employees because all but two of them lived near the courthouse. The workers’ geographic proximity indicated that the suit was amenable to ordinary group litigation procedures, rather than class action status.

But as the three-judge panel rejected class certification, they noted that a class with fewer than 40 individuals may pass muster if “joinder of these employees in a single lawsuit (with multiple named plaintiffs) would be impracticable.” The comment echoed Rule 23 of the Federal Rules of Civil Procedure, which governs class actions and specifies that an individual may sue as a representative on behalf of others if “the class is so numerous that joinder of all members is impracticable.”

Joinder is the standard method of conducting a case with multiple plaintiffs, in which they operate as co-plaintiffs. A class action is an exception for situations where letting one person act as a class representative would be more manageable.

Christine Webber, a partner at Cohen Milstein Sellers & Toll PLLC, said the key question is whether it’s feasible to litigate with a bunch of individuals, rather than how many of them there are. She represents workers in class actions as co-chair of the firm’s civil rights and employment practice group.

“Forty is the rule of thumb, but I think I’ve seen courts say as low as 20,” she said. The circumstances of the case and the plaintiffs guide the analysis, she said.

For example, cases involving guest workers from another country who come to the United States temporarily for seasonal agriculture work are more likely to be certified with a small number because of the difficulty in contacting each of them, she said.

“Those present some significant logistical hurdles to people all just joining in the case as individual plaintiffs,” she said. Certifying the case as a class action makes it easier for a few individuals to provide representative testimony and evidence on behalf of the group, she said.

When the proposed class includes current employees who fear retribution for speaking out, courts may certify a class action as a way to let them avoid the spotlight, she said.

Read 40 May Not Be the Magic Number to Certify a Wage Class.