No Longer a Second-Class Class Action? Finding Common Ground in the Debate over Wage Collective Actions with Best Practices for Litigation and Adjudication

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