Highlights from this issue include:
- District Court Jurisdiction and Rule 23(f) Appeals. The Fifth Circuit held the filing of a Rule 23(f) petition does not divest the district court of jurisdiction to withdraw and reissue a class certification order. A Rule 23(f) petition is only a request for permission of appeal, and so a district court does not lose jurisdiction over a case when a party files a Rule 23(f) petition, but only if the appellate court grants the petition, which allows the appeal to proceed.
- FLSA and Rule 23 Settlements. The Third Circuit held a district court erred by denying preliminary approval of a Rule 23(b)(3) settlement based on the fact that part of the settlement required class members—including those who had not opted into the parallel Fair Labor Standards Act (FLSA) collective action—to waive their FLSA claims. The Third Circuit held the plain language of the FLSA statute does not bar the release of unasserted FLSA claims in a court-approved Rule 23 settlement. The Third Circuit, however, also recognized that whether district courts can approve Rule 23(b)(3) opt-out settlements that release FLSA claims is a different inquiry from whether district courts should do so, and remanded for further consideration.
