Allan G. King, Lisa A. Schreter, and Carole F. Wilder, You Can't Opt ...

authorized under a subsequent paragraph of thissubsection. 51Nothing approaching this clear expression of intent appears in §216(b).Nevertheless, a few courts find support for denying the applicability of Rule 23 toFLSA collective actions in a sentence in the 1966 Advisory Committee Notes, whichstates, “[t]he present provisions of 29 U.S.C. §216(b) are not intended to be affected byRule 23, as amended.” 52 Thus, it has been suggested, FLSA collective actions in allrespects are exempt from Rule 23’s class certification requirements. This sentenceprovides no such support.To reiterate, the REA provides that amendments to the Federal Rules abrogate allother procedural rules in effect when the amendment is adopted. Because the FLSA’sopt-in provision, which was amended to the statute in 1947, 53 was in effect when modernRule 23 was adopted (in 1966), 54the opt-in provision arguably would have beenabrogated by the opt-out provisions of Rule 23. The Advisory Committee apparentlyadded this sentence to preserve the §216(b) opt-in procedure. It is pure fiction, however,to suggest that this sentence also was intended to retain Lusardi’s two-step procedurebecause that invention would not become part of FLSA litigation for another 20 years!B. At Least One Federal Court Has Recognized that Rule 23Certification Requirements Apply to §216(b) Collective Actions.Shushan v. University of Colorado at Boulder 55exposed the inconsistencybetween the purpose, legislative history, and language of §216(b), and the approachcourts have taken to “conditionally certify” collective actions. While recognizing that5152538 U.S.C. §1252(e)(1).FED. R. CIV. P. 23, Advisory Committee Notes, 1966 Amendment..29 U.S.C. §216(b) Historical and Statutory Notes.18