United States District Court, W.D. Wisconsin
MARK HOVERSON, individually and on behalf of all others similarly situated, Plaintiff,
PAN-O-GOLD BAKING COMPANY, Defendants.
OPINION and ORDER
D. PETERSON DISTRICT JUDGE
Mark Hoverson filed a proposed class action alleging that
defendant Pan-O-Gold Baking Company owes its employees unpaid
wages for the time they spent donning and doffing sanitary
uniforms. Now before the court is Hoverson's unopposed
motion for class certification, Dkt. 27, and the parties'
joint motion for class certification. Dkt. 31. The court will
grant both motions and certify the class.
parties say that they are negotiating a settlement, and they
ask the court to stay notice to the class until they reach a
settlement or notify the court that they intend to proceed to
trial. The court will defer approval of the class notice and
give the parties until August 27, 2019, to submit their
proposed class settlement and motion for preliminary approval
of the settlement. If the parties are unable to reach a
settlement, plaintiff has until August 27, 2019, to submit a
motion for approval of the class notice.
parties stipulate to certification, but the court still must
determine whether the proposed class meets the requirements
for class certification under Rule 23: (1) the scope of the
class as to both its members and the asserted claims must be
“defined clearly” using “objective
criteria, ” Mullins v. Direct Digital, LLC,
795 F.3d 654, 657 (7th Cir. 2015); (2) the class must be
sufficiently numerous, include common questions of law or
fact, and be adequately represented by plaintiffs (and
counsel) who have claims typical of the class, Fed.R.Civ.P.
23(a); and (3) the class must meet the requirements of at
least one of the types of class actions listed in Rule 23(b).
In this case, Hoverson asks for certification under Rule
23(b)(3), which applies if “the questions of law or
fact common to class members predominate over any questions
affecting only individual members” and “a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” The court
concludes that the proposed class meets these requirements.
parties propose the following class definition: “[a]ll
persons who have been or are employed by Pan-O-Gold Baking
Co. at its Sun Prairie, Wisconsin facility as FLSA-non-exempt
production supervisors, operators, sanitation employees,
and/or maintenance employees at any time from October 3, 2016
to the present, and who were required to don and doff
protective sanitary uniforms without compensation.”
Dkt. 31, ¶ 2.
scope of the definition is clear and its members can be
identified using objective criteria, so the parties have
satisfied the first requirement for certification.
23(a)(1) requires that the proposed class be so numerous that
joinder is impracticable. There is no explicit cut-off, but
the Seventh Circuit has deemed classes of 40 members to be
sufficient. See Swanson v. Am. Consumer Indus.,
Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969). Here,
Hoverson has identified 244 Pan-O-Gold employees that fall
within the class definition, from employee records produced
by Pan-O-Gold. Dkt. 29, ¶ 7. This No. is large enough to
make joining all potential class members impracticable. The
proposed class satisfies the numerosity requirement.
Rule 23(a)(2), a class action must involve âquestions of law
or fact common to the classâ or, more accurately, common
answers to those questions. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 349-50 (2011). Put differently, a
class satisfies the commonality requirement when âdetermining
the truth or falsity of [a] common contention will resolve an
issue that is central to the validity of each claim.â
Chi. Teachers Union, Local No. 1 v. Bd. of Educ.,
797 F.3d 426, 434 (7th Cir. 2015).
the parties identify several questions common to the class,
including whether Pan-O-Gold maintained a policy of failing
to pay wages to employees for time spent donning and doffing.
Because all class members were subject to the same policy,
the determination of this issue will apply to the ...