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61 Am. U. L. Rev. 523 (2011-2012)
The Second-Class Class Action: How Courts Thwart Wage Rights by Misapplying Class Action Rules

handle is hein.journals/aulr61 and id is 529 raw text is: THE SECOND-CLASS CLASS ACTION: HOW COURTS THWART WAGE RIGHTS BY MISAPPLYING CLASS ACTION RULES ScoTT A. Moss & NANTIYA RUAN* Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases-mainly wage claims but also age discrimination and gender equal pay claims-29 U.S. C. § 216(b) allows not class actions but collective actions covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving strict commonality among members. This Article argues that conditioning § 216(b) collective actions on certification motions proving commonality is incorrect. Section 216(b) is not an opt-in version of Rule 23; it is a liberalized form of simple Rule 20 joinder, which permits joint suit whenever claims share one common issue and address related events. No text authorizes any § 216(b) certfication inquiry, nor is judicial gatekeeping justfied by economic logic: Rule 23 classes present principal-agent and asymmetric information problems because lead plaintiffs may inadequately represent unengaged members, but all § 216(b) collective actions members are full plaintiffs with individual claims, obviating the need for judicial scrutiny. Wage rights cases commonly are high-impact challenges to entire industry pay practices, seeking millions in unpaid wages for thousands of workers. Especially for * Moss is an Associate Professor at the University of Colorado Law School; Ruan is a Lawyering Process Professor and Director of the Workplace Law Program at the University of Denver Sturm College of Law. The authors thank for their helpful feedback Professors Rachel Arnow-Richman, Roberto Corrada, Richard Marcus, Helen Norton, Raja Raghunath, and Sandra Sperino, as well as the participants in the Temple University Law School Workshop Series, the University of Colorado Law School Workshop Series, and the Labor/Employment Law Colloquium at Washington University and St. Louis University law schools. They also thank their excellent research assistants, Ashley Boothby and HeatherJackson.

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