March 31, 2026|Franchise Frontlines
March 31, 2026 | U.S. District Court, Eastern District of Wisconsin | Unpublished Decision
Executive Summary
In an unpublished decision, Chief Judge Pamela Pepper of the Eastern District of Wisconsin denied a plaintiff’s motion for leave to file a third Rule 23 class certification motion and a related motion for reconsideration in a wage-and-hour action involving multiple senior living facilities and a centralized management company. The plaintiff argued that newly obtained evidence justified revisiting class certification and that system-wide policies supported common liability across facilities. The defendants countered that the plaintiff had already been afforded multiple opportunities to pursue class certification and failed to satisfy Rule 23 requirements. The court agreed with the defendants, holding that the plaintiff’s strategic litigation choices and failure to pursue available discovery did not justify a third attempt at certification, while also signaling continued skepticism that the alleged policies could support class-wide treatment.
Relevant Background
The plaintiff, a former employee at a senior living facility, brought claims under the Fair Labor Standards Act and Wisconsin wage law against both the facility operator and a related management entity, 41 Management LLC. The case involved allegations that employees were not properly compensated for time spent completing COVID-19 screenings prior to clocking in and for certain meal periods that were allegedly deducted from hours worked.
Over the course of nearly five years of litigation, the plaintiff filed multiple motions seeking Rule 23 class certification. The court denied the first two motions, finding that the plaintiff failed to establish commonality and typicality across the proposed class, particularly given the absence of evidence demonstrating uniform practices across dozens of facilities. The court emphasized that isolated examples from a single facility could not support system-wide inferences.
Following conditional certification of a narrower FLSA collective and additional discovery, the plaintiff sought leave to file a third class certification motion, asserting that newly obtained evidence addressed the deficiencies previously identified by the court. The plaintiff also moved for reconsideration of prior rulings, arguing that both new evidence and intervening legal developments warranted a different outcome.
Decision
The court denied the request to file a third class certification motion, focusing on the plaintiff’s litigation conduct and the procedural history of the case. The court emphasized that the plaintiff had already been given multiple opportunities to satisfy Rule 23’s requirements and had access to extensive discovery prior to filing earlier motions. The court rejected the plaintiff’s argument that the evidence supporting certification was newly discovered, noting that much of the material either existed earlier or could have been obtained through timely discovery efforts. The court characterized the plaintiff’s position as an attempt to revisit certification after realizing that earlier evidentiary showings were insufficient, rather than the result of any genuine procedural barrier.
A central theme of the decision was the plaintiff’s failure to utilize available procedural tools, particularly motions to compel, to obtain information about other facilities during the discovery period. The court explained that uncertainty regarding the outcome of a discovery dispute does not excuse a party’s decision not to pursue it. Strategic choices regarding litigation risk, including whether to seek court intervention, do not constitute grounds for reopening issues that have already been decided. The court made clear that a party cannot decline to pursue discovery and later rely on that decision as justification for additional attempts at class certification.
The court also rejected the plaintiff’s reliance on “fairness” considerations, including arguments that absent class certification, certain claims might be time-barred. It found that the case did not involve a mere procedural misstep but rather a series of deliberate litigation decisions that did not warrant a third opportunity to meet Rule 23’s standards. The court further expressed doubt that certification would be appropriate even with the additional evidence, noting continuing variations among facilities in timekeeping practices, employee duties, and supervisory oversight that undermined commonality and typicality.
With respect to the motion for reconsideration, the court applied the standard under Rule 54(b) and concluded that the plaintiff failed to demonstrate either newly discovered evidence or a manifest error of law. The court rejected the argument that a recent Wisconsin appellate decision altered the legal framework, emphasizing that it remained bound by controlling Seventh Circuit precedent. The court reiterated that reconsideration is not an opportunity to relitigate issues or present arguments that could have been raised earlier.
Finally, the court addressed the evolving standard for FLSA collective actions in light of recent Seventh Circuit authority, denying the defendants’ motion for decertification as procedurally outdated and scheduling further proceedings to evaluate whether the collective could proceed under the revised framework.
Looking Forward
This decision provides a useful framework for evaluating system-wide wage-and-hour claims in multi-unit operational structures, particularly where a centralized management entity is alleged to control employment practices across multiple locations. The court’s analysis reinforces that the existence of shared policies, systems, or management oversight does not, standing alone, establish the level of uniformity required for class certification. Variations in facility-level implementation, employee roles, and day-to-day practices may continue to defeat commonality even where high-level policies appear consistent.
The ruling also highlights the importance of disciplined discovery strategy. Courts may be reluctant to revisit certification decisions where a party had a full opportunity to develop the record but elected not to pursue certain avenues of discovery. Decisions regarding whether to seek additional information or challenge discovery responses are treated as strategic choices, not procedural obstacles, and may limit a party’s ability to later supplement the record.
For franchisors and similarly structured systems, the decision underscores that maintaining operational distinctions among locations may have meaningful litigation benefits. While centralized standards and shared tools are common in franchise and multi-unit models, the presence of local discretion and variation may be critical in defending against efforts to aggregate claims across an entire system.
At the same time, the court’s discussion of the unresolved joint employer question serves as a reminder that centralized involvement in employment-related functions—such as payroll systems, policies, and oversight—may still be scrutinized in appropriate cases. The decision does not expand liability in this area, but it reflects the fact-intensive nature of the inquiry and the importance of aligning operational practices with the intended allocation of responsibility among entities.
Ultimately, the opinion reflects a broader judicial emphasis on finality and efficiency in complex litigation. Where parties have been afforded multiple opportunities to present their case, courts may be unwilling to allow repeated attempts to refine legal theories or evidentiary support, particularly in cases that have already consumed significant judicial and party resources.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case.
Thomas O’Connell is a Partner at Buchalter LLP and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
This communication is not intended to create, and does not create, an attorney-client relationship or any other legal relationship. No statement herein constitutes legal advice, nor should it be relied upon or interpreted as such. This communication is for general informational purposes only and is not a substitute for legal counsel. Readers should not act or refrain from acting based on any information provided without seeking appropriate legal advice specific to their situation. For more information, visit www.buchalter.com.
