The simple answer to this question is: “a herd of cats.” However, because this is the first in a series of posts discussing the effective management by counsel of collective actions, a more thorough answer is probably in order.
Employees who wish to bring a representative action under the Fair Labor Standards Act (“FLSA”) and Age Discrimination in Employment Act (“ADEA”) must do so under the collective action mechanism provided by 29 U.S.C. § 216(b), and cannot bring a class action under Federal Rule of Civil Procedure 23. While most lawyers and judges understand the distinction that class actions are “opt out” and collective actions are “opt in,” there are other important differences between a Rule 23 class and a §216(b) collective that affect every stage of the litigation process procedurally and ethically. Even though collective actions are not creatures of Rule 23, lawyers and judges often apply class action principles to collective actions, thereby creating procedural and ethical complications. The first step to avoiding these issues is understanding the fundamental nature of both the class and the collective.
The Rule 23 Class
A Rule 23 class is a distinct legal entity comprised of the unnamed members of the class. Rule 23 provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members….” When a court certifies a class under the rule, it does the following:
- Creates a class as a separate legal entity;
- Appoints one or more class representatives to make decisions on behalf of the class; and
- Appoints class counsel to represent the legal interests of the class.
Thus, the class members are not individual plaintiffs in the action. By design, a representative action under Rule 23 provides an efficient method to adjudicate multiple claims in a single action by permitting a smaller group of decision makers to direct the litigation on behalf of the class. It also includes procedural safeguards, however, to protect the rights of the individual class members. For instance, to qualify for appointment, both the class representative(s) and class counsel must demonstrate to the court the ability to protect the interests of the class without ethical conflicts.
The Section 216(b) Collective
Unlike Rule 23 class actions, §216(b) collective actions do not create a class or collective as a separate entity, and employees who join the action by “opting in” do so as individual plaintiffs. 29 U.S.C. §216(b) provides:
An action … may be maintained against any employer … in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
The Supreme Court has recognized that “Rule 23 [class] actions are fundamentally different from collective actions under the FLSA….” The Court explained:
[A] putative class acquires an independent legal status once it is certified under Rule 23. Under the FLSA, by contrast, “conditional certification” does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court.
Thus, the opt in process of the collective action, as opposed to the opt out process of a Rule 23 class, “means that every plaintiff who opts in to a collective action has party status, whereas unnamed class members in Rule 23 class actions do not.” Moreover, “by referring to them as ‘party plaintiff[s],’ Congress indicated that opt-in plaintiffs should have the same status in relation to the claims of the lawsuit as the named plaintiffs.” Accordingly, a §216(b) collective is a group of individual plaintiffs who pursue their claims in a single action.
Creating A Functional “Class” Outside Of Rule 23?
Although the conditional certification process of §216(b) does not create a class, some collective actions have functioned as more of a class action pursuant to Federal Rule of Civil Procedure 83, which provides that “[a] judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§2072 and 2075, and the district’s local rules.” Pursuant to Rule 83, some collective actions have operated such that named plaintiffs acquire a functional “class representative” status, and take legal actions on behalf of opt-in plaintiffs, by requiring them to authorize named plaintiffs to make decisions on their behalf in order to join the action. In these cases, the use of Rule 83 does not create a class, but rather creates a collective wherein a majority of the plaintiffs have granted authority to named plaintiffs to make decisions on their behalf. Because of this difference, as well as the fact that Rule 83 does not provide Rule 23’s procedural safeguards to protect the rights of class members, this method can create procedural and ethical issues for both the parties and counsel as the case proceeds.
Because a collective action under §216(b) involves tens, hundreds, or even thousands of individual plaintiffs, managing the collective throughout the litigation requires consideration of significant practical, ethical and procedural issues. Counsel for both parties should be prepared, and work collaboratively, to plan for these issues early in the case, and to manage them as the case proceeds through each key stage, from drafting pleadings to settlement and/or trial. I will review important management considerations for each of these stages in future posts.
 Halle v. W. Penn. Allegheny Health Sys., Inc., 842 F.3d 215, 225 (3rd Cir. 2016) (citing Wright & Miller, §1807; Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir. 2003)).
 Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir. 2003).
 Rule 83, Fed. R. Civ. P. The Supreme Court has recognized that the collective action conditional certification process is a creature of Rule 83. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 172, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
 See, e.g. Halle v. W. Penn. Allegheny Health Sys., Inc., 842 F.3d 215, 219-20 (3rd Cir. 2016) (noting that the consent to join “indicated, among other things … ‘I hereby … authorize the named plaintiffs to make decisions on my behalf concerning the litigation, the method and manner of conducting this litigation, and all other matters pertaining to this lawsuit, including any settlement….’”).