Defense Innovations In FLSA Opt-In Collective Actions

Law360, New York (October 7, 2015, 10:45 AM EDT) -- Phillip H. Wang

Joseph Kernen Settling Rule 23 opt-out class actions is straightforward: the agreed-upon settlement is presented to the court for preliminary approval of a Rule 23(e) settlement class and — if the settlement is not approved — the parties return to their pre-settlement status (i.e., there is no class). But, following the conventional wisdom on Fair Labor Standards Act opt-in rules makes it impossible to do that.

The conventional wisdom is not only wrong, it isn’t even uniform. There is no standardized protocol for settling putative collective actions under the FLSA. Courts currently apply varying (but equally unsatisfactory) procedures...

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