Anyone who practices in the class action arena is aware of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure, which, as a threshold matter, obligate a plaintiff to demonstrate (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. As a practical matter, most challenges to certification focus on commonality and typicality and upon the 23(b)(3) requirements that class action issues predominate and that a class action be the superior means of handling the case.
These requirements are often not a major issue in cases under the WARN Act, 29 U.S.C. §§ 2101 et seq., because of the very nature of the statute. The WARN Act doesn’t even apply unless at least 50 employees have suffered a loss of employment, so that numerosity is generally not an issue. Because the statute requires that the same notice be given to the employees, and because its obligations are triggered based upon the size of groups of employees, commonality, typicality, and predominance are likewise usually not hard to prove. Put another way, unlike statutes such as the Fair Labor Standards Act, the substantive law rarely dictates an individualized inquiry, so that the hardest elements of Rule 23 are not difficult to establish. Thus, in some respects it is easier for a plaintiff to obtain certification of a WARN Act class than those under many other statutes.
This means that in most WARN Act cases the defense of the class tends to focus either directly on the merits (i.e. “there shouldn’t be a class because there was no violation”), or some issue regarding the plaintiff, such as they are not covered by the Act. Coverage issues are more common than one might think given the number of employees who might be excluded because they were terminated outside of the required notice period, had not worked for the employer for a sufficient period, or lacked the requisite number of hours.
On September 15, 2010, in Eash v.Export Packaging Co.pdf the United States District Court for the Central District of Illinois denied certification (although without prejudice) in a WARN Act case for the unusual reason that the plaintiff had not established numerosity. Although the plaintiff alleged that over 200 employees had not received the required WARN Act notice, the court found that the plaintiffs had relied solely on their own declarations, none of which reflected any personal knowledge of the employment of the other putative class members. Finding that none of the plaintiffs had competent evidence of human resource matters generally, it found that the plaintiffs had not established the required numerosity and denied certification.
Incidentally, the court’s opinion unintentionally reflects other potential problems with the class in that one of the plaintiffs had only worked for the employer “for a couple of months.” That individual most likely would have fallen under the WARN Act’s exclusion for “part-time” employees, which includes those who have been “employed for fewer than 6 of the 12 months preceding the date on which notice is required.” 29 U.S.C. § 2101(8).
The bottom line:A party should never assume that even the most rudimentary or obvious elements needed to establish a class have been satisfied. Challenges even to such routine issues as numerosity can defeat a class if the plaintiffs have not made the appropriate showing.