Federal courts of appeal issued significant opinions in 2021 involving key procedural matters related to class and collective actions. A groundbreaking decision by the U.S. Court of Appeals for the Fifth Circuit changed the way district courts must handle plaintiffs’ motions for conditional certification in that circuit. Three federal circuits addressed the applicability of the U.S. Supreme Court’s landmark Bristol-Myers Squibb decision to Rule 23 class actions and collective actions brought under Section 216(b) of the Fair Labor Standard Act (FLSA). In an appellate decision on another important procedural matter, the U.S. Court of Appeals for the Third Circuit rejected a district court’s trial-before-certification strategy in a hybrid wage and hour case.

Within the Fifth Circuit, at least, courts will apply a fairer, more workable framework for evaluating whether potential opt-in plaintiffs are similarly situated before granting conditional certification.

Fifth Circuit nixes rubber-stamped FLSA collective

The Fifth Circuit (which covers Louisiana, Mississippi, and Texas) shunned the familiar two-step, conditional certification-followed-by-decertification process commonly followed by federal courts in FLSA collective actions. The appeals court announced that district courts must review the factual record developed by the parties to determine whether plaintiffs meet the “similarly situated” standard before notice goes out to potential opt-in plaintiffs. The Fifth Circuit...

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