Class Certified on Failure To Notify Employees of Impending Hospital Closure
Failure to give the requisite 60-days’ notice to a group of employees under the WARN Act seems like it implicates a quintessential common question for adjudication under Rule 23. But in Hutson v. CAH Acquisition Company 10, LLC, 1:15CV742 (M.D.N.C. Aug. 15, 2016), Defendant gamely tried to suggest that there were factual issues that must be resolved as to each plaintiff. Admittedly, the case was a bit more complicated than the typical WARN Act case – the closing of the employer’s facility was postponed, and there apparently was confusion about just what the employer explained to employees about the postponement. But Judge Osteen did not pause long in certifying the class, observing that “whether the [new] notice was timely and sufficient under the WARN Act or whether notice was in effect given at all, are questions of law and fact common to the class.” Judge Osteen similarly rejected defendant’s typicality argument, holding that the claims at issue all “arise out of the exact same conduct, and rest on the exact same legal theories as those of the proposed class.” The prospect of adjudicating 130 individual claims under the WARN Act – for the same closure event – seems daunting, and Judge Osteen’s decision on class certification was right down the middle of the fairway on this one.