And no, we’re not talking about cars, but about wage and hour cases in which plaintiffs assert an opt-in claim under the Fair Labor Standards Act, and a state-law wage and hour claim, which typically is an opt-out class action.

As with much in class and collective action practice these days, whether these two kinds of cases are oil and water or chocolate and peanut butter depends on whom you ask: the rules vary widely by circuit and sometimes even by district.  The latest additions to the tennis match are two decisions by the Hon. John E. Jones III, of the Middle District of Pennsylvania.  Ruling in two cases involving the Rite-Aid drug store chain, Judge Jones held that Congress’s intent that FLSA collective actions be maintained only on an opt-in basis — requiring individuals affirmatively to raise their hands to participate in the case as plaintiffs — is incompatible with state opt-out classes, in which everyone who fits within the class definition is included in the class unless he or she raises a hand to opt out.

Even more interestingly, the cases before Judge Jones did not involve FLSA and state law claims together; rather, the state and federal claims were asserted in three different actions.  Two individuals, one from Maryland and one from Ohio, asserted state law class claims against Rite Aid, claiming federal jurisdiction under the Class Action Fairness Act; and those two individuals had also opted in to a separate FLSA case that had been conditionally certified.

Judge Jones reasoned that Congress’s intent was clear that FLSA claims should be decided on an opt-in basis, and allowing the same plaintiffs to pursue state claims based on the same underlying conduct on an opt-out basis would effectively nullify Congress’s command.

Other courts disagree, finding no incompatibility since the claims arise under the laws of different jurisdictions.  Most recently the Seventh Circuit brushed off a challenge to hybrid cases with relative indifference, in its January 18 decision in Ervin v. OS Restaurant Services, suggesting that the issue did not even raise a close question.

It appears we will get no uniform rule on this question until the Supremes take it up.  Until then, the hospitability of individual courts to hybrid cases will continue to encourage forum shopping.


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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.