Wage & Hour Class and Collective Action Review — 2023 - Report - Page 7
Epic Systems Inc. v. Lewis, et al., 138 S. Ct. 1612 (2018) – Epic Systems is the U.S.
Supreme Court decision holding that arbitration agreements requiring individual
arbitration and waiving a litigant’s right to bring or participate in class actions are
enforceable under the Federal Arbitration Act.
Opt-In Procedures – Under 29 U.S.C. § 216(b), a collective action member must opt-in
to join the lawsuit before he or she may assert claims in the lawsuit or be bound by a
judgment or settlement.
Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class members
are bound by the court’s judgment unless they opt-out after receiving notice of the
lawsuit.
Numerosity – Plaintiffs must show that their proposed class is sufficiently numerous
that adding each class members to the complaint would be impractical. This is a
requirement for class certification imposed by Rule 23(a)(1).
Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, the
plaintiffs must show that common questions predominate over any questions affecting
individual members.
Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions in
federal courts and requires that a party seeking class certification meet four
requirements of section (a) and one of three requirements under section (b) of the rule.
Rule 23(a) – It prescribes that a class meet four requirements for purposes of class
certification, including numerosity, commonality, typicality, and adequacy of
representation.
Rule 23(b) – To secure class certification, a class must meet one of three requirements
of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3).
Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and if
prosecuting separate actions would create a risk of inconsistent or varying adjudications
with respect to individual class members or adjudications with respect to individual class
members that, as a practical matter, would be dispositive of the interests of the other
members not parties to the individual adjudications or would substantially impair or
impede their ability to protect their interests.
Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the party
opposing the class has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.
Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied and
questions of law or fact common to class members predominate over any questions
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© Duane Morris LLP 2023
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Wage & Hour Class And Collective Action Review – 2023
