18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 731 Incorporating the amici’s report in its findings of fact, the District Court granted Plaintiffs’ motion for a temporary restraining order. After granting the temporary restraining order and Defendants made the required corrections, the District Court ordered amici to reevaluate the facilities to determine compliance with its order and provide further recommendations. Id . at 477. Amici reported that Defendants had taken several appropriate steps, but not all reasonable precautions, to protect inmates. Id . Defendants made the subsequent corrections, and subsequently moved to dissolve the injunction pursuant to Rules 54(b), 59(e), and 60(b). Amici reported substantial improvement in Defendants’ COVID protocols, but also imperfect compliance with the preliminary injunction. The District Court therefore denied Defendants’ request on the grounds that the factual circumstances did not justify vacating the injunction. On appeal, the D.C. Circuit reversed the District Court’s order. Defendants argued that the issues were moot because the preliminary injunction expired after 90 days under the Prison Litigation Reform Act. Plaintiffs did not argue that the District Court failed to make the findings required under § 3626(a)(1) or make the order final before 90 days after the entry of the preliminary injunction. The D.C. Circuit found that the Act applied to the preliminary injunction here, as it described a civil action "with respect to prison conditions," and the claims were based on conditions in the District of Columbia prisons and nothing else. Id . at 478. The D.C. Circuit thus reasoned that Congress clearly meant for preliminary injunctions in civil actions respecting prison conditions to last no longer than 90 days. The D.C. Circuit ruled that Defendants’ argument of mootness was well taken, and dismissed the appeals of the order imposing the preliminary injunction, and remanded to the District Court for further proceedings. (lxxvii) The Numerosity Requirement For Class Certification Anderson, et al. v. Weinert Enterprises , 2021 U.S. App. LEXIS 2418 (7th Cir. Jan. 28, 2021). Plaintiff, a seasonal employee for a roofing company, filed a class and collective action lawsuit alleging that Defendant did not provide adequate overtime compensation in violation of the Fair Labor Standards Act (“FLSA”) and Wisconsin state labor law. According to Plaintiff, Defendant improperly failed to count required “travel time hours” toward an employee’s number of hours worked for purposes of calculating overtime hours. Id. at *2. Plaintiff amended his complaint to remove the FLSA claims due to a lack of opt-ins, and then he proceeded to file a motion for class certification in April 2019 seeking to certify a class of hourly workers including all employees Defendant expected to hire for the 2019 season. The District Court denied Plaintiff’s motion. It found that Defendant’s expected 2019 seasonal hires could not be included in the class definition. Therefore, the District Court determined that Plaintiff’s proposed class of 37 employees failed to meet the numerosity requirement of Rule 23(a). Plaintiff appealed the District Court’s order and the Seventh Circuit affirmed. The Seventh Circuit noted that Plaintiff had the burden to show that the proposed class was “so numerous that joinder of all members is impracticable.’” Id. at *6. Additionally, the Seventh Circuit observed that although it had “recognized that 40 class members will often be enough to satisfy numerosity, in no way is that number etched in stone. The controlling inquiry remains the practicability of joinder.” Id. at *10. As applied here, the Seventh Circuit opined that Plaintiff failed to demonstrate that it would be impracticable to join the 37 putative class members. The Seventh Circuit highlighted the facts that all but two class members lived within 50 miles of the Eastern District of Wisconsin courthouse, and that the potential damages at stake were fairly minimal. Moreover, the Seventh Circuit held that Plaintiff did not satisfy his burden of showing that Defendant planned to hire a certain amount of seasonal employees in 2019. Plaintiff contended that he lacked this information because Defendant failed to update its initial discovery disclosures, but the Seventh Circuit rejected this argument because Plaintiff never sought this information from Defendant nor raised this argument before the District Court. In sum, the Seventh Circuit reasoned that Plaintiff “never demonstrated that naming as Plaintiffs each of the predominantly local, current, and former employees of a northeast Wisconsin roofing company would be impracticable.” Id. Therefore, the Seventh Circuit affirmed the District Court’s order denying Plaintiff’s motion for class certification. In Re Zetia (Ezetimibe) Antitrust Litigation, 7 F.4th 227 (4th Cir. 2021). Plaintiffs, a group of direct purchasers of Merck’s brand-name drug and Glenmark’s generic version of the drug, brought a class action relative to Defendant’s drug. The District Court previously had granted class certification to Plaintiffs. On appeal, the Fourth Circuit reversed and remanded on the basis that the class was not sufficiently numerous for purposes of class certification pursuant to Rule 23. The Fourth Circuit found that the District Court based its numerosity determination on its reasoning that "multiple individual trials" would result if the case proceeded without class- wide status. Id . at 235. However, the Fourth Circuit explained that the "the text of Rule 23(a)(1) refers to whether