Post Authored By: Yara Mruoeh
A proponent of class certification must first demonstrate the four requirements of Rule 23(a), and then at least one of the requirements of Rule 23(b). The very first requirement of Rule 23(a) is that “the class is so numerous that joinder of all members is impracticable.” This requirement, embodied in Rule 23(a)(1), is generally called numerosity. There is no magic numerosity number, but the standard rule of thumb is that numerosity is generally met when there are at least 40 class members. Ultimately, the benchmark is what the rule says: whether “joinder of all members is impracticable.” ‘Impracticable’ does not mean ‘impossible’. Instead, a class representative must show that it is extremely difficult or inconvenient to join all the members of the class.
In Anderson v. Weinert Enterprises, Inc., No. 20-1030 (7th Cir. Jan. 28, 2021), the 7th Circuit provided significantly more insight into the numerosity requirement of Rule 23(a). It is rare to see class certification denied on numerosity grounds, making the Court’s in-depth analysis that much more significant. The Plaintiff sought to pursue claims for unpaid overtime wages against a local Wisconsin roofing company under the Fair Labor Standards Act (FLSA). With a putative class consisting of 37 individuals, the Plaintiff sought Rule 23 certification under state law. The district court found the class too small to certify because joinder was not impracticable, and the Plaintiff appealed.
In the past, the 7th Circuit had recognized that 40 members could constitute a class, but in this instance, the Court pointed out that it wasn’t just the numbers alone that had to be considered, but whether joinder was practicable. In making that determination, a court should not only consider the number of class members but also the nature of the claim, the location of the various class members and the size of individual claims.
In Anderson , the 7th Circuit held that the district court did not abuse its discretion in declining to certify a class action, given (i) the proposed class’s geographic dispersion (the class members all worked at the same facility), (ii) the overall size of the class (proposed class had 37 members, but the Court reasoned that if it were larger, it probably would not have mattered), (iii) the dollar amounts involved with each individual claim (considering the availability of attorney fee shifting), and (iv) the plaintiff’s ability to easily contact the class members (all but two members resided in the same small town, within a 50-mile radius of the courthouse of the Eastern District of Wisconsin where Anderson filed suit). Ultimately, the Court reasoned that Anderson presented no evidence that coordinating the two out-of-state class members was so difficult that joinder of 37 employees of a small local company would be impracticable.
The caselaw supporting the 40-person presumption remains undisturbed. Ultimately, numerosity is a case-by-case analysis depending on the specific facts at issue. The 7th Circuit’s decision is a reminder that Rule 23 numerosity requires the plaintiff to show the impracticability of joinder, which is not simply satisfied by simply presenting a large-in-numbers class. However, the Court’s decision in Anderson underscores the importance of wining class certification at the trial court level – the standard of review is whether the district court abused its discretion, which is a high burden for the appellant to overcome.
About the Author:
Yara Mroueh is an associate attorney at Gordon & Rees, where she focuses her practice primarily in the areas of products and premises liability, insurance defense, toxic tort, and commercial litigation. Yara is active in all phases of litigation, from investigating the facts, settlement negotiations, and pre-trial preparation. As part of her practice, Yara enjoys taking depositions and drafting complex motions in state and federal matters. Yara’s bilingual skills provide her a unique opportunity to connect with clients and achieve the best possible outcome.