As numbers go, 37 isn’t as famous as, say, 1 or 13. It’s a prime number, the atomic number of rubidium and the age of the peasant Dennis in the movie Monty Python and the Holy Grail, but not much else. Now, however, it may also have significance as a number too small to meet Rule 23(a)’s numerosity requirement in the right circumstances.
In Anderson v. Weinert Industries, Inc., Case No. 20-1010 (7th Cir. Jan. 28, 2021), the plaintiff sought to pursue claims for unpaid overtime wages against a Wisconsin roofing company. The claims were initially brought under the Fair Labor Standards Act (FLSA) and appear to have been conditionally certified under FLSA section 16(b), but there were only three opt-ins. Faced with a tiny collective, the plaintiff changed tactics and sought Rule 23 certification under state law.
The putative class consisted of – you guessed it – 37 individuals, most of whom continued to reside locally. The district court found such a class too small to certify because joinder was not impracticable, and the plaintiff appealed.
The U.S. Court of Appeals for the Seventh Circuit affirmed. Rule 23(a)(1) requires that a proposed class must be “so numerous that joinder of all members is impracticable.” The burden is on the plaintiff to meet that requirement.
In the past, the Seventh 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 potential class members and the size of individual claims. Put another way, “Is joinder really impracticable?”
In this instance, all but two of the class members lived within 50 miles of the federal courthouse and it appeared that their claims could be joined. Thus, the district court did not abuse its discretion in refusing to certify the class.
Importantly, the court did not develop a line between 40 (which had been found to be sufficient in a past case) and 37. Rather, the focus of the inquiry should be on the practicality of joinder, not simply the numbers, so that even 40 might not be sufficient in a particular case.
The bottom line: Challenges to numerosity are rare, but the focus should be on the impracticability of joinder rather than solely on the number of class members.