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09-3029 Ervin v. OS Restaurant Services, Inc.

By: WISCONSIN LAW JOURNAL STAFF//January 18, 2011//

09-3029 Ervin v. OS Restaurant Services, Inc.

By: WISCONSIN LAW JOURNAL STAFF//January 18, 2011//

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Employment
FLSA; class actions

Employees who institute a collective action against their employer under the terms of the FLSA may at the same time litigate supplemental state-law claims as a class action certified according to FRCP 23(b)(3).
“We conclude that there is no categorical rule against certifying a Rule 23(b)(3) state-law class action in a proceeding that also includes a collective action brought under the FLSA. (We refer to these as “combined” actions, rather than ‘hybrid’ actions, to avoid confusion with other uses of the term ‘hybrid’-e.g., for cases certified under more than one subsection of Rule 23(b).) In combined actions, the question whether a class should be certified under Rule 23(b)(3) will turn-as it always does- on the application of the criteria set forth in the rule; there is no insurmountable tension between the FLSA and Rule 23(b)(3). Nothing in the text of the FLSA or the procedures established by the statute suggests either that the FLSA was intended generally to oust other ordinary procedures used in federal court or that class actions in particular could not be combined with an FLSA proceeding.”

Reversed and Remanded.

09-3029 Ervin v. OS Restaurant Services, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Wood, J.

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