Ninth Circuit Notes Intracircuit Split Re Compatability of Rule 23 Class Actions and Collective Actions under FLSA

Per Pitts v. Terrible Herbst, Inc. --- F.3d ----, 2011 WL 3449473 (9th Cir. Aug. 9, 2011):

Aside from dismissing Pitts's entire action for lack of subject matter jurisdiction, the district court alternatively dismissed Count 2 of the complaint because, in its view, a Rule 23 class action could not co-exist with a related collective action under the FLSA. Although the question has divided district courts in our circuit, compare Misra v. Decision One Mortg. Co., LLC, 673 F.Supp.2d 987, 994 (C.D.Cal.2008) (holding that “an opt-out class under Rule 23 is not inherently incompatible with an FLSA opt-in class”), with Williams v. Trendwest Resorts, Inc., 2007 WL 2429149, at *4 (D.Nev. Aug. 20, 2007) (holding that “the class action mechanisms of the FLSA and Rule 23 are incompatible”), we need not address this issue because Pitts has told us—as he told the district court—that he will not pursue his FLSA claims.^FN6 Because Pitts has abandoned these claims, any alleged incompatibility between a Rule 23 class action and an FLSA collective action is not present in this case.

FN6. The only circuit that has addressed this issue has held that Rule 23 class actions and FLSA collective actions may peacefully co-exist. See Ervin v. OS Rest. Servs., 632 F.3d 971, 976–79 (7th Cir.2011).