On January 28, 2021, the Seventh Circuit issued a rare opinion analyzing Rule 23’s numerosity requirement. The court affirmed the district court’s refusal to certify a class that would have included no more than 37 members, all of whom were geographically concentrated.

• Richard Anderson brought suit against his employer, Weinert Enterprises, Inc., a local roofing company that employed a “handful” of seasonal employees in the Green Bay, Wisconsin area. Anderson alleged that Weinert’s practice of paying employees time-and-a-half pay for time spent traveling to and from a job site, but not including those hours when calculating an employee’s 40-hour work week, violated the Fair Labor Standards Act and Wisconsin labor laws.
• After only three other employees opted into his FLSA collective action, Anderson converted his FLSA claim into an individual action, which the parties later settled.
• Anderson then focused his efforts on certifying a federal class action for his state-law claims. The putative class was to be defined as “[a]ll hourly employees who worked on the jobsite for the Defendant on or after June 14, 2016.” Anderson identified 37 former or current Weinert employees to include in the class and also asked the court to include all employees that Weinert expected to hire for the upcoming 2019 season. The district court refused to add any future employees to the class.
• In denying class certification, the district court held that Anderson had not shown that the proposed class of 37 current or former employees met Rule 23(a)’s requirement that joinder be impracticable since all but two members of the potential class lived within a 50-mile radius in the Eastern District of Wisconsin and he had not shown he would have any difficulty contacting putative class members. In short, because joining a relatively small number of local plaintiffs was feasible, class certification was not proper.
• The court of appeals affirmed, even though the proposed number of class members came close to meeting the 40-member threshold “often regarded as sufficient to meet the numerosity requirement” under Seventh Circuit precedent. Orr v. Shicker, 953 F.3d 490, 498 (7th Cir. 2020). According to the court, the number of putative class members is not the only inquiry under Rule 23(a). Rather, the key inquiry is the impracticability of joinder.
• The Seventh Circuit held that the district court did not abuse its discretion when it ruled that the proposed class’s geographic concentration, the overall size of the class, the small stakes involved with each individual claim, and Anderson’s ability to easily contact class members all rendered joinder not impracticable.
• The court was careful to state that its holding “imposes no immovable benchmarks for meeting Rule 23(a)’s numerosity requirement.” Rather, the analysis requires considering the volume of potential class members, as well as other factors affecting the practicability of joinder, and the “inquiry is fact and circumstance dependent.”
• The case is a reminder that, while the numerosity requirement is often the least challenged element of Rule 23, it remains plaintiffs’ burden to prove that it has been met—and “[m]ere allegations that a class action would make litigation easier for a plaintiff are not enough to satisfy Rule 23(a)(1).”
• Read the Seventh Circuit’s opinion here.