As numbers go, 37 isn’t as famous as, say, 1 or 13. It’s a prime number, the atomic number of rubidium and the age of the peasant Dennis in the movie Monty Python and the Holy Grail, but not much else. Now, however, it may also have significance as a number too small to meet Rule 23(a)’s numerosity requirement in the right circumstances.
In Anderson v. Weinert Industries, Inc., Case No. 20-1010 (7th Cir. Jan. 28, 2021), the plaintiff sought to pursue claims for unpaid overtime wages against a Wisconsin roofing company. The claims were initially brought under the Fair Labor Standards Act (FLSA) and appear to have been conditionally certified under FLSA section 16(b), but there were only three opt-ins. Faced with a tiny collective, the plaintiff changed tactics and sought Rule 23 certification under state law. Continue Reading