Document Type

Article

Publication Date

2019

Abstract

Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized joinder for wage claims presumptively sharing a common issue justifying joinder. Our 2012 article argued that collective actions may proceed with no "certification"process;i nstead, defendants must prove them improper as Rule 21 "misjoinder" and must do so under Rule 20 liberal joinder, not Rule 23(b)(3) strict commonality, standards.

Some judges agreed, citing our article to allow no-certification collective actions. Others judges, even if agreeing that collective actions are joinder (not class) cases, noted that eliminating certification raises difficult questions we never addressed.

  • If named plaintiffs and counsel are not certified to represent others, how can they settle hundreds or thousands of plaintiffs' claims?

  • How can judges authorize notice to potential opt-ins without certifying the propriety of litigating collectively?

  • If opt-in plaintiffs are parties, not absentee class members, must the trial evidence include all plaintiffs, or just a sample?

We now tackle these questions with a comprehensive set of proposals.

(A) Judges assess notice if plaintiffs request, and the propriety of collective treatment if defendants argue misjoinder.

(B) Defendants may challenge collective actions as Rule 21 misjoinder, and may settle collectively, subject to plaintiffs' below obligations.

(C) Plaintiffs may litigate and solicit opt-ins without certification - and court notice is an optional request - but counsel must send consent, authority, and rights provisions ("CARP") detailing plaintiffs':

  1. rights to sue individually - if they prefer the greater control of individual suit over collective litigation;

  2. communication rights and duties - counsel must inform them of proposed settlements or other major case events; and

  3. settlement consent and rights - they can opt out of a collective settlement, but failing to opt out can serve as settlement consent.

Publication Citation

11 Fed. Cts. L. Rev. 27 (2019).

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