“Merits-Blind” Class Certification in Wisconsin – Commentary on Nicole McDaniel v. Wisconsin Department of Corrections, 2025 WI 24

I. Introduction

The Supreme Court of Wisconsin’s decision in Nicole McDaniel v. Wisconsin Department of Corrections ushers in a pivotal clarification to Wisconsin’s class-action jurisprudence. At issue was whether courts, when deciding whether to certify a class under Wis. Stat. § 803.08 (which mirrors Fed. R. Civ. P. 23), may probe the underlying merits of the plaintiffs’ claims while assessing the Rule’s threshold requirements—specifically commonality and typicality. The plaintiffs, correctional officers, seek compensation for pre- and post-shift activities allegedly integral to their principal duties. The circuit court certified a statewide class; the court of appeals reversed, finding the claims non-viable on their merits. The Wisconsin Supreme Court reversed the appellate court, holding that viability of the merits is not a permissible consideration at the certification stage.

II. Summary of the Judgment

Holding. Courts deciding class certification under § 803.08 may not evaluate whether the putative class will prevail on the merits when assessing commonality or typicality. The circuit court correctly certified the class; the Court of Appeals erred by engaging in merits analysis.
Vote. Majority opinion by Justice Protasiewicz, joined by Chief Justice A.W. Bradley and Justices Dallet, Hagedorn, Karofsky. Justice Ziegler (joined by R.G. Bradley) concurred in part and dissented in part—agreeing with the merits-blind principle but arguing that remaining certification issues should be remanded to the Court of Appeals.
Disposition. Court of Appeals reversed; cause remanded to circuit court.

III. Analysis

A. Precedents Cited and Their Influence

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) – Introduced the “rigorous analysis” language for Rule 23 requirements and clarified that even “one common question” can satisfy commonality. The DOC relied heavily on Dukes to argue that merits considerations are inextricable from certification. The Wisconsin Supreme Court distinguished Dukes, emphasising that Dukes did not endorse substantive adjudication at the certification stage.
Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 568 U.S. 455 (2013) – The cornerstone of the majority’s reasoning. Amgen held that courts have “no license to engage in free-ranging merits inquiries” and may consider merits only insofar as relevant to certification prerequisites. Wisconsin adopts this framework in toto.
Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014) – Established that security screenings were not “integral and indispensable” under the FLSA; cited by the DOC to contest compensability. The majority notes that substantive disputes like Busk go to summary judgment or trial, not certification.
United Food & Commercial Workers v. Hormel Foods Corp., 2016 WI 13 – Wis. Supreme Court precedent adopting the federal “integral and indispensable” test; forms part of plaintiffs’ merits theory.
Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016) – Approved representative proof (video sampling) in donning/doffing collective actions; the majority relied on Tyson to uphold predominance despite individualized damages.
Seventh Circuit lines: Schleicher v. Wendt, 618 F.3d 679 (2010); Eddlemon v. Bradley Univ., 65 F.4th 335 (7th Cir. 2023); Messner v. Northshore, 669 F.3d 802 (7th Cir. 2012). These cases reiterate that certain defeat on the merits does not bar certification—a theme embraced by the majority.

B. The Court’s Legal Reasoning

Statutory Framework. Section 803.08 requires satisfaction of four Rule 23(a) equivalents—numerosity, commonality, typicality, adequacy—and one of the Rule 23(b) categories (here, predominance & superiority under subsection (2)(c)). The Court stresses that the text lacks any merits filter.
Separation of Merits and Certification. Certification examines procedural suitability, whereas merits are adjudicated through summary judgment or trial mechanisms already embedded in the civil rules. Allowing merits infiltration would create a “summary-judgment lite,” with different burdens, incomplete discovery, and immediate appeal rights—anomalous to the procedural architecture.
Application to Commonality. The existence—not the resolution—of the compensability question is what matters. Once identified, it satisfies commonality even if the answer ultimately favours the defendant.
Typicality. Because named representatives experienced the same policies and rest on the same legal theory, typicality is met. Merits viability is irrelevant to that analysis.
Predominance & Superiority. The Court affirms the circuit judge’s careful weighing: (a) a uniform compensation policy creates common evidence; (b) individualized damages and de minimis objections do not defeat predominance; (c) expert video sampling apportioning time is adequate under Tyson; (d) class treatment is the most efficient vehicle compared to thousands of individual wage claims.
Standard of Review. Certification decisions are discretionary; appellate scrutiny asks only whether the lower court applied the correct law and reached a reasonable conclusion. The Court of Appeals misapplied the law by collapsing merits into certification.

C. Potential Impact of the Decision

Clarifies Wisconsin Procedure. This decision cements a “merits-blind” approach, aligning Wisconsin practice with Amgen and the bulk of federal circuits. Trial courts now have definitive guidance: do not weigh merits when assessing Rule 23(a) criteria.
Facilitates Employee and Consumer Class Actions. Plaintiffs facing uniform statewide policies (wage-and-hour, consumer protection, civil-rights) can expect fewer obstacles at certification; defendants lose a potent early-stage weapon.
Shifts Litigation Strategy. Defendants must reserve merits attacks for summary judgment, increasing discovery costs but preserving resources previously expended on “mini-trials” at the certification phase.
Appellate Workload. Because certification orders are immediately appealable (§ 803.08(11)(b)), there may be more appeals focusing strictly on procedural prerequisites rather than substantive viability.
Consistency with Federal Law Enhances Predictability. Lawyers can rely on expansive federal precedent interpreting Rule 23, reducing uncertainty in Wisconsin practice.

IV. Complex Concepts Simplified

Commonality: All class members must share at least one legal or factual question whose answer will drive the outcome for the entire class.
Typicality: The claims of the class representatives must arise from the same events and be based on the same legal theory as the rest of the class.
Predominance: In “money damages” classes, common issues must outweigh individual issues in significance and number. Different damages amounts seldom defeat predominance.
Superiority: The class mechanism must be a better (fairer and more efficient) way to resolve the dispute than individual lawsuits or other procedures.
“Integral and Indispensable” Activities: Tasks so closely related to the principal job duties that they are indispensable to performing those duties (e.g., donning safety gear). If so, they are typically compensable.
Continuous Workday Rule: Once an employee performs the first principal activity, the workday continues until the last principal activity, capturing “gap time” in between.
De Minimis Doctrine: A narrow defense allowing employers to disregard extremely trivial periods of otherwise compensable work; Wisconsin has not explicitly rejected but applies it sparingly (see Piper).

V. Conclusion

McDaniel crystallizes the principle that class certification in Wisconsin is a procedural gateway—not an adjudication on liability. By forbidding judges from disqualifying classes on the ground that they are “sure to lose,” the Court reinforces access to collective redress mechanisms and harmonises state practice with prevailing federal authority. Future litigants should expect certification debates to focus on the architecture of the class—numerosity, commonality, typicality, adequacy, predominance, superiority—while the courthouse doors to merits arguments remain firmly further down the corridor, at summary judgment or trial. The ruling significantly strengthens the predictability and integrity of Wisconsin’s class-action landscape.