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An Article From Legal Counsel Peter Mavrick – Obtaining Class Certification Under The Warn Act

This article is part one of four related articles, addressing the requirements needed to represent a plaintiff in a class action under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. Sections 2101—2109, et seq. (“WARN Act”). This article by Attorney Peter Mavrick provides a brief overview what a plaintiff needs to establish the numerosity and commonality requirements for a Rule 23, Fed. R. Civ. Proc., class action.

Rule 23(a)(1): Numerosity.

Under Rule 23(a)(1), Fed.R.Civ.Proc., the class must be “so numerous that joinder of all members is impracticable.” At least one court has noted that “the WARN Act seems particularly amenable to class litigation. By its terms, WARN is applicable only in the context of employer action which affects a large number of employees. It is only applicable to companies which employ more than 100 employees.” Finnan v. LF. Rothchild & Co., Inc., 726 F.Supp. 460, 465 (S.D.N.Y. 1989). See, e.g., Cruz v. Robert Abbey, Inc., 778 F.Supp. 605, 612 (E.D.N.Y. 1991) (holding that proposed class of at least 114 persons in a WARN action was so numerous that joinder of all members was impracticable); Cashman v. Dolce International/Hartford, Inc., 225 F.R.D. 73, 91 (D. Conn. 2004) (proposed class of 117 former employees in WARN action met numerosity requirement); Kelly v. Sabretech, Inc., 195 F.R.D. 48, 53 (S.D. Fla. 1999) (proposed class in WARN action estimated at 85 to 110 employees “is so numerous that joinder of all members is impracticable”); Carrier v. JPB Enters., Inc., 206 F.R.D. 332, 334 (E.D. Me. 2002) (numerosity requirement for class action on behalf of employees terminated due to plant closing or mass layoff was met where number of individuals with actionable claims exceeded 40, and for one claim was 123).

Although there is no “magic number” of class members required to find numerosity, a class of 40 has generally been found sufficient to satisfy Rule 23(a)(1) and plaintiff’s proposed class well exceeds this number. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (“numerosity is presumed at a level of 40 members”); Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1333, n. 9 (7th Cir. 1969) (noting that 40 class members is sufficiently large to satisfy Rule 23(a)).

Rule 23(a)(2): Commonality.

Commonality refers to when there are questions of law and fact that are common to the class relating to the application of the WARN Act provisions to an alleged common course of action by defendant. Showing that the claims of the class members share “a common nucleus of operative fact” is usually sufficient to satisfy the commonality requirement of Rule 23(a)(2). Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). “Common nuclei of fact are typically manifest where … the defendants have engaged in standardized conduct towards members of the proposed class ….” Id. Generally WARN Act cases arise out of a mass termination of employees that took place on a certain dates because the closure of defendant’s business. Under the case authorities, the common questions include, but are not limited to:

(1) Whether defendant is an employer within the meaning of WARN;
(2) Whether defendant’s actions triggered the sixty day notice requirement (specifically, if there was a “mass layoff” or a “plant closing”);
(3) Whether statutory excepts to the notice requirement apply;
(4) Whether defendant failed to provide notice as required; and
(5) Whether proposed class members suffered an employment loss.

Where resolution of the foregoing common questions would require class-wide proof, the commonality requirement has been satisfied. Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001) (Under commonality requirement, “a class action must resolve issues that are susceptible to class-wide proof”). Other courts examining WARN Act cases have concluded that the common questions present here are sufficient for the commonality requirement. See, e.g., Kelly v. Sabretech, Inc., 195 F.R.D. 48, 53 (S.D. Fla. 1999); Moreno v. DFG Foods, LLC, 2003 U.S.Dist. LEXIS 8700 at * 22 (N.D. Ill. 2003).

Attorney Peter Mavrick practices in the field of business and labor/employment litigation in Fort Lauderdale, Florida. Information contained in this article is accurate as of June 2008. This article from Attorney Peter Mavrick is for general information use only, and does not substitute for specifically tailored legal advice.