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Hoverson v. Pan-O-Gold Baking Co.

United States District Court, W.D. Wisconsin

July 30, 2019

MARK HOVERSON, individually and on behalf of all others similarly situated, Plaintiff,
v.
PAN-O-GOLD BAKING COMPANY, Defendants.

          OPINION and ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Plaintiff 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.

         The 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.

         ANALYSIS

         The 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.

         A. Class definition

         The 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.

         The 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.

         B. Rule 23(a) requirements

         1. Numerosity

         Rule 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.

         2. Commonality

         Under Rule 23(a)(2), a class action must involve “questions of law or fact common to the class” 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 “determining the truth or falsity of [a] common contention will resolve an issue that is central to the validity of each claim.” Chi. Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d 426, 434 (7th Cir. 2015).

         Here, 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 ...


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