June 27, 2025 – Class certification cannot be decided on claim merits, the Wisconsin Supreme Court agreed unanimously in McDaniel v. Wisconsin Department of Corrections (DOC), 2025 WI 24 (June 25, 2025).

“We clarify that a court should not consider the viability of the class’s claim on the merits when addressing commonality and typicality,” Justice Janet C. Protasiewicz wrote.

Justice Annette Kingsland Ziegler, joined by Justice Rebecca Grassl Bradley, disagreed with the majority only in that they shouldn’t have addressed the DOC arguments but instead remanded to the Court of Appeals for its review.

“The majority correctly reverses the court of appeals’ decision, concluding that courts are not to perform a preliminary assessment of the merits when determining whether to certify a class,” wrote Ziegler, concurring in part and dissenting in part.

Off the Clock

Two DOC officers, Nicole McDaniel and Matthew Davis, seek compensation for the time they aren’t paid while working in a correctional facility.

These unpaid activities vary in duration by officer and location but generally involve security screenings, obtaining equipment, and the process of going through security.

Plaintiffs sought a class action lawsuit to resolve the compensation issue statewide, which includes about 5,000 corrections officers.

She argues that compensation is required because the off-clock activities are “integral and indispensable” and are a part of a “continuous workday.”

Milwaukee County Circuit Court bifurcated the proceedings into class-certification and merits phases.

It granted certification, concluding the plaintiffs “made a ‘plausible’ argument that the officers are entitled to compensation.” The circuit court decision focused on what it saw as the factors in dispute, predominance and superiority.

The Court of Appeals reversed the certification decision. “[A] consideration of the merits of this case cannot be separated from the preliminary procedural question concerning certification,” it decided in reviewing whether the claims “‘remain viable’ under substantive law.”

Certification, Not Merits

A proposed class must meet, by the plaintiff’s preponderance of the evidence, numerosity, commonality, typicality, and adequacy of representation under Wis. Stat. section 803.08(1), and predominance and superiority, among other requirements of Wis. Stat. section 803.08(2). These requirements are “nearly identical to” Federal Rule of Civil Procedure 23.

Neither party disputes the numerosity and adequacy of representation elements.

A class must have “questions of law or fact common to the class” with a minimum of disparities that would slow resolution,” the Supreme Court decision explained.

The parties argued from competing U.S. Supreme Court holdings about whether the court needs to review a claim’s merits to determine commonality in the proposed class.

The Wisconsin answer is “[w]hen a class-certification court assesses commonality, it should not consider the viability of the class’s claims on the merits,” for which even the DOC’s cited case provided support.

This conclusion, the decision said, fits well within the rules of civil procedure, where summary judgment provides a “mechanism to seek a decision on the merits following discovery and before trial.”

Such a conclusion, too, follows federal precedent, the decision said. The Seventh Circuit, governing Wisconsin and nearby states, said directly: “if a class meets the certification requirements, it ‘must be certified, even if it is sure to fail on the merits.’”

The Supreme Court disagreed with the court of appeals and even disagreed with the circuit court’s analysis about raising the claim’s plausibility.

Deference to Circuit Court

The majority decision continued to evaluate whether a class existed in reviewing the circuit court’s decision.

Although the plaintiffs argue that they raise a common question of compensation, DOC found variations between compensation among officers and that the activities weren’t “integral and indispensable.”

While the latter argument is one on merits not suitable for certification, the Supreme Court found reasonable the circuit court’s decision of sufficient commonality in the class.

The element of typicality requires the parties have claims or defenses typical within the class, something that “arises from the same event or practice or course of conduct” under “the same legal theory.”

DOC again argued the need to look at the merits, but the majority said “[t]here is no dispute that the claims of the two class representatives here arise from the same course of conduct as other class members and are based on the same legal theory.”

The elements of predominance and superiority under Wis. Stat. section 803.08(2)(c) contain their own factors for court evaluation.

The issue of predominance requires evaluating whether the common aspect of the issues prevails over the claims’ individual characteristics. Even if damages need to be tried separately, predominance may exist.

The plaintiffs claim “common questions of compensability.” The DOC sees individuality because of individual employee damage calculations and whether the lost time is too small to matter.

The majority saw “compensability is a common question that predominates over individual issues.”

The video methodology proposed by the plaintiffs’ expert witnesses to calculate damages, the majority explained, has received U.S. Supreme Court approval and was used by the same experts in a North Carolina statewide class action case.

Superiority means “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

The plaintiffs see efficiency in the class action. The DOC argues “individual wage claims are superior to class action” to avoid “numerous and burdensome mini-trials on damages.”

Because individual actions would involve “significant cost and effort to navigate a wage claim,” the majority concluded superiority existed in this class.

“A class action is a more fair and efficient way to handle this controversy,” making the circuit court’s discretionary decision reasonable.

More importantly, the circuit court addressed the DOC’s argument in its ruling. The circuit court said it “can handle damages.” A single expert on the subject streamlines the issue “in a single motion or hearing.” The controversy raises issues of statewide policy.

“In the end,” the majority said, “the circuit court is in the best position to understand whether it can handle a class action in its courtroom. And we give deference to the circuit court’s decision.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.