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

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criteria have been: (1) the FLSA’s opt-in framework makes it procedurally incompatiblewith Rule 23; and (2) Congress’ failure to indicate that it intended Rule 23 to apply to§216(b) actions leaves courts free to fashion their own procedures.Regarding the first reason, courts frequently cite LaChapelle v. Owens Illinois,Inc. for the proposition that there is “a fundamental, irreconcilable difference between theclass action described by Rule 23 and that provided for by FLSA §[2]16(b).” 60Thequoted phrase in LaChapelle, however, refers to the obvious difference between the optinrequirement of §216(b) and the opt-out requirement of Rule 23. LaChapelle does notaddress any other Rule 23 provisions or their compatibility with §216(b).In fact,LaChappelle concerns whether the FLSA’s opt-in provisions also apply to collectiveactions under the Age Discrimination in Employment Act:Since ADEA § 7(b) adopts [FLSA § 216(b)], we must holdthat only “opt-in” type class actions may be utilized in agediscrimination cases. Rule 23 cannot be invoked tocircumvent the consent requirement of the third sentence ofFLSA §[2]16(b) which has unambiguously beenincorporated into ADEA by its Section 7(b). 61In other words, while LaChapelle confirms that ADEA and FLSA collective actionsunder §216(b) require potential plaintiffs to opt in to a collective action under thosestatutes, it says nothing about the procedures to apply in determining whether a caseshould be certified.Regarding the second reason for refusing to apply Rule 23’s certificationrequirements to FLSA §216(b) cases, the Sixth Circuit recently observed:F.2d at 1074 (“we again acknowledge Lusardi’s correct statement that FLSA §[2]16(b) class actionsalleging a pattern or practice of discrimination are not governed by Fed.R.Civ.P. 23”).60LaChapelle v. Owens Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975).61Id. at 289.20
While Congress could have imported the more stringentcriteria for class certification under Fed. R. Civ. P. 23, ithas not done so in the FLSA . . . . The district courtimplicitly and improperly applied a Rule 23-type analysiswhen it reasoned that the plaintiffs were not similarlysituated because individualized questions predominated.This is a more stringent standard than is statutorilyrequired . . . . We do not suggest that aspects of Rule 23could never be applied to a FLSA collective action. Rather,applying the criterion of predominance undermines theremedial purpose of the collective action device. 62According to the Sixth Circuit, Rule 23’s certification requirements, and in particularRule 23(b)(3)’s predominance requirement, do not apply to §216(b) cases because theFLSA did not expressly so provide, and doing so would “undermine the remedial purposeof the collective action” provision in the statute. 63The premise that Congress affirmatively must state that the Federal Rules governproceedings under a particular statute for the Federal Rules to apply is backwards. Inaccordance with the REA, and the Supreme Court’s holding in Shady Grove, Congressmust affirmatively exempt a statute from the reach of the Federal Rules. The idea thatcourts are free to disregard the Federal Rules in the absence of statutory languagemandating that the Rules apply therefore turns federal jurisprudence on its head. For thisreason, it is exceedingly rare for any statute to reference the Federal Rules.VII. Congress’ Intent in Amending the FLSA Is Effectuated by Applying FederalRule 23.A. Rule 23’s Certification Requirements Are Consistent with thePolicies and Legislative History Behind the Opt-in Provisionsof §216(b).As a matter of policy, Rule 23’s certification requirements are consistent with the62O’Brien v. Ed Donnelly Enters., 575 F.3d 567, 584-86 (6th Cir. 2009).21
Page 1 and 2: You Can't Opt-Out of the Federal Ru
Page 3 and 4: consent in writing to become such a
Page 5 and 6: claim. Because the Court of Federal
Page 7 and 8: II. The “Conditional Certificatio
Page 9 and 10: as by misleading communications, ma
Page 11 and 12: present a ready opportunity for abu
Page 13 and 14: satisfied those burdens. 34As we no
Page 15 and 16: • Rule 23(b)(3)(d) requires court
Page 17 and 18: No court has found that the certifi
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Page 23 and 24: “The judicial system benefits by
Page 25 and 26: directives.” 72The Supreme Court
Page 27 and 28: government erred in calculating ove
Page 29 and 30: claims, leaving only her claim unde
Page 31 and 32: plaintiffs were legally entitled to
Page 33: open to inconsistent rulings on the

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