Duane Morris Class Action Review - 2023 - Report - Page 62
The defendants succeeded in obtaining interlocutory appellate review under § 1292(b)
in a few 2022 decisions, however, including on at least one issue of crucial importance
in the class and collective action context. The pending appeal in In Re A&L Home Care
And Training Center, Nos. 21-0305/0306 (6th Cir. Feb. 4, 2022), involves the widelyused two-step framework for deciding whether a proposed collective action should be
certified under the FLSA. In Holder, et al. v. A&L Home Care & Training Center, 552 F.
Supp. 3d 731 (S.D. Ohio Aug. 4, 2021), the district court conditionally certified two of
three proposed collective actions for which the plaintiffs sought collective action
certification. In doing so, the district court explained how the bifurcated FLSA collective
action certification process typically works. First, conditional certification takes place at
the beginning of discovery, where the plaintiffs need only make a modest factual
showing that they are similarly-situated to the proposed group of employees. In the
second stage, after discovery concludes, courts examine the conditionally certified
collective action more closely and employ stricter standards beyond simple allegations
and affidavits to demonstrate similarity. The defendants in Holder asked the district
court to join the Fifth Circuit in abandoning the two-step framework. See Swales, et al.
v. KLLM Transport Services, L.L.C., 985 F.3d 430 (5th Cir. 2021). The district court
declined the defendants’ request, noting that “this district routinely appl[ies] the two-step
process in FLSA cases.” Holder, 552 F. Supp. 3d at 742.
Because the defendants’ challenge of the two-step certification process raised issues
that merited the Sixth Circuit’s attention, however, the district court certified the case for
immediate review under 28 U.S.C. 1292(b). On February 4, 2022, a Sixth Circuit
motions panel agreed with the district court “that the statutory factors support review of
these issues.” In Re A&L Home Care And Training Center, Nos. 21-0305/0306 (6th Cir.
Feb. 4, 2022). In doing so, the Sixth Circuit followed a familiar pattern of accepting
interlocutory review of a decision that the district court certified as worthy of immediate
attention under 1292(b). If the Sixth Circuit ultimately finds the Fifth Circuit’s Swales
opinion persuasive, then plaintiffs in the Sixth Circuit may have to satisfy a higher
standard in establishing a collective action and obtaining discovery under the FLSA.
C.
Rulings Involving 28 U.S.C. § 1291 Appeals After Class Certification Denials
The text of 28 U.S.C. § 1291 provides: “The courts of appeals (other than the United
States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from
all final decisions of the district courts of the United States . . ., except where a direct
review may be had in the Supreme Court. The jurisdiction of the United States Court of
Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections
1292(c) and (d) and 1295 of this title.”
In Microsoft v. Baker, et al., 137 S. Ct. 1702 (2017), the U.S. Supreme Court prohibited
plaintiffs who lose on class certification from converting a district court’s interlocutory
order into a final judgment within the meaning of § 1291 by voluntarily dismissing their
individual claims with prejudice subject to a right to revive the claims if the class
certification decision is reversed on appeal. The issue arose after the Ninth Circuit
denied interlocutory review of a district court order denying class certification, and
plaintiffs implemented what the Supreme Court referred to as this “dismissal device.”
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Duane Morris Class Action Review – 2023
