Panel Upends the Rules of FLSA Collective Actions in the Fifth Circuit

The U.S. Court of Appeals for the Fifth Circuit has ordered courts to discontinue using a "two-step" certification process where the first step customarily results in the distribution of notice of opt-in rights to putative class members. The order affirmatively rejects the nearly "universal" approach of the 1987 New Jersey district court opinion, Lusardi v. Xerox Corporation, where courts often authorize notice of opt-in rights on a "fairly lenient" basis without rigorous inquiry into whether class members are similarly situated. Now, district courts within the Fifth Circuit must use a different approach and rigorously scrutinize the similarity of the proposed collective action class at an early stage of the case before authorizing notice to non-parties. Read the full update on PerkinsCoie.com.