Kohler Company v. Jennifer Vang

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2012
Decided August 28, 2012

Before

FRANK H. EASTERBROOK, Chief Judge

WILLIAM J. BAUER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 12-8029

JENNIFER VANG, Petition for Leave to Appeal
Plaintiff-Respondent, from an Order of the United
States District Court for the
v. Eastern District of Wisconsin.

KOHLER CO., No. 09-C-842
Defendant-Petitioner. William E. Callahan, Jr.,
Magistrate Judge.

Order

The district court has certified a class of workers at Kohler Co., who contend that
the firm violated Wisconsin law by telling employees not to record overtime hours.
Kohler has asked for permission to appeal under Fed. R. Civ. P. 23(f). We grant that re-
quest and remand summarily.

Two months ago we granted an earlier request for permission to take a Rule 23(f)
appeal and remanded for further consideration, because the district court had not com-
pleted its analysis of the commonality requirement in Rule 23(a)(2). Kohler contends
that there is no common question, because its formal policy is that all hours must be
recorded and compensated. Plaintiffs contend that many if not most supervisors con-
travene that policy, but decisions such as Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541
No. 12-8029 Page 2

(2011), hold that Rule 23(a)(2) does not permit certification of a class when store-level
managers have varying policies. It was not clear to us, moreover, that Wisconsin law
supported plaintiffs’ theory.

On remand, the district court reiterated its decision that class certification is ap-
propriate. But that opinion did not cite or discuss Wal-Mart, and we have since issued a
new decision discussing Wal-Mart's proper application. See Bolden v. Walsh Construction
Co., No. 12-2205 (7th Cir. Aug. 8, 2012). It would be appropriate for the district court to
take full account of Wal-Mart and Bolden, so we remand a second time.

Plaintiffs contend that Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012),
shows that an informal policy can support class certification in a wages-and-hours case.
The policy in Ross, however, had been adopted by the employer’s top management (or
so the plaintiffs contended). There was thus a single, firm-wide policy that could satisfy
Rule 23(a)(2); both Wal-Mart and Bolden conclude that a class may be certified under
those circumstances. See also McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
672 F.3d 482 (7th Cir. 2012). The allegation in this suit, by contrast, appears to be that
particular superiors regularly departed from the policy established by Kohler’s top
brass. Under Wal-Mart and Bolden such variable circumstances do not present a com-
mon question.

On remand the district court may think it prudent to take evidence to determine
whether this suit concerns one firm-wide policy or a congeries of supervisor-level prac-
tices. There is no obstacle to examining issues that affect class certification as well as the
merits. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676–99 (7th Cir. 2001), ap-
proved in Wal-Mart, 131 S. Ct. at 2552. Unless plaintiffs can establish a firm-wide policy,
Rule 23(a)(2) prevents class certification.

VACATED AND REMANDED