Federal Courts Law Review
Scott A. Moss and Nantiya Ruan, No Longer a Second-Class Class Action? Finding Common Ground in the Debate over Wage Collective Actions with Best Practices for Litigation and Adjudication, 11 Fed. Cts. L. Rev. 27 (2019), available at https://scholar.law.colorado.edu/articles/1348.
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; instead, 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.
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