Lindsay v. Government Employees Insurance

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2005 Decided May 26, 2006

No. 05-7046

CHRISTINE LINDSAY AND
ROBERT MCGRUDER, INDIVIDUALLY
AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED,
APPELLANTS

v.

GOVERNMENT EMPLOYEES INSURANCE COMPANY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 04cv01213)

Charles E. Tompkins argued the cause for the appellant.
Michael D. Hausfeld was on brief.

Eric Hemmendinger argued the cause for the appellee.
Bruce S. Harrison and Daniel A. Cantor were on brief.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: Christine
Lindsay and Robert McGruder (appellants) work as auto damage
adjusters for the Government Employees Insurance Company
(GEICO). GEICO classified all auto damage adjusters as
administrative employees, thereby making them ineligible for
overtime pay under section 13(a)(1) of the Fair Labor Standards
Act, 29 USC §§ 201 et seq. (FLSA or Act). The appellants
brought this action against their employer, alleging that GEICO
deliberately miscategorized them as administrative employees
to avoid paying them overtime pay in violation of the FLSA and
the New York Minimum Wage Act, N.Y. Lab. Law §§ 650 et
seq. (New York Act). They sought certification of an “opt-in”
class under the FLSA. They also sought certification of an “opt-
out” class under the New York Act, using Federal Rule of Civil
Procedure 23. The district court denied certification of the state
law class, concluding that the FLSA class certification
procedure requiring all class members to affirmatively opt in
precluded it from exercising supplemental jurisdiction over
those state law claimants who did not affirmatively join the
FLSA claim. We disagree and therefore reverse the order
denying certification and remand to the district court.
I.
The appellants’ FLSA claim alleged not only that the nature
of an auto damage adjuster’s job duties entitles them to overtime
pay under FLSA but also that GEICO’s classification of auto
damage adjusters as administrative employees constitutes a
willful violation of the Act.1 See 29 U.S.C. § 207(a). They sued

1
The FLSA requires an employer to pay an employee one-and-
one-half times his regular pay rate for work in excess of 40 hours per
week. See 29 U.S.C. § 207(a). It exempts from its overtime provision
“bona fide executive, administrative, or professional” employees. See
29 U.S.C. § 213(a)(1). The Act imposes a two-year statute of
limitations on wage and hour claims; the period is extended to three
years if the employer’s violation is “willful.” 29 U.S.C. § 255(a).
 3

on behalf of themselves and all other similarly situated auto
damage adjusters under 29 U.S.C. § 216(b).2 Section 216(b) is
part of the so-called Portal-to-Portal Act, which the Congress
enacted in 1947 in response to judicial interpretations of the
FLSA.3 See IBP, Inc. v. Alvarez, 126 S. Ct. 514, 519 (2005). Of
particular relevance here, section 216(b) provides that, in an
action brought under, inter alia, section 207—the overtime pay
provision—of the FLSA, “[n]o employee shall be a party
plaintiff to any such action unless he gives his consent in writing
to become such a party and such consent is filed in the court in
which such action is brought.” 29 U.S.C. § 216(b). That is,
potential class members must affirmatively join (“opt in”) the
lawsuit. See Thompson v. Sawyer, 678 F.2d 257, 269 (D.C. Cir.
1982).

2
Section 216(b) provides, inter alia: “An action to recover the
liability prescribed in either of the preceding sentences [expressly
including section 207 liability] may be maintained against any
employer (including a public agency) in any Federal or State court of
competent jurisdiction by any one or more employees for and in behalf
of himself or themselves and other employees similarly situated.”

3
The Portal-to-Portal Act refers to employees’ “portal-to-portal”
activities—“the time spent by a workman in traveling from the
entrance to his employer’s property to his actual working place (as in
a mine) and in returning after the work shift,” Webster’s Third New
International Dictionary 1768 (1993). The Supreme Court had held
that these activities constituted “work” or part of the “workweek”
under the FLSA’s minimum wage and overtime provisions,
respectively. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
690-91 (1946); Armour & Co. v. Wantock, 323 U.S. 126 (1944); Tenn.
Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944).
The Portal-to-Portal Act provides elsewhere that an employer does not
incur liability for failing to pay minimum wages or overtime for an
employee’s portal-to-portal activities. See 29 U.S.C. § 252(a).
 4

Appellant McGruder also alleged that the nature of a New
York-based auto damage adjuster’s job duties entitles those
adjusters to overtime pay under the New York Act as well. See
N.Y. Lab. Law §§ 663(1) (creating civil action for violation of
compensation provisions); N.Y. Comp. Codes R. & Regs. tit. 12,
§ 142-2.2 (requiring overtime compensation of time-and-one-
half).4 McGruder sought to bring the state law claim on behalf
of himself and all other similarly situated New York-based auto
damage adjusters pursuant to Federal Rule of Civil Procedure
23. Unlike the procedure set out in 29 U.S.C. § 216(b), Rule 23
class certification requires notice to all potential class members
that they must affirmatively decline to join (“opt out”) the
lawsuit if they do not want to be class members. See Fed. R.
Civ. P. 23(c)(2)(B) (“For any class certified under Rule 23(b)(3),
the court must direct to class members the best notice
practicable under the circumstances . . . that the court will
exclude from the class any member who requests exclusion,
stating when and how members may elect to be excluded”); In
re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002) (“Certification
pursuant to Rule 23(b)(3), however, comes with certain
procedural requirements: Because members of a class seeking
substantial monetary damages may have divergent interests, due
process requires that putative class members receive notice and
an opportunity to opt out.”).
The district court first determined that all GEICO auto
damage adjusters nationwide were similarly situated within the
meaning of 29 U.S.C. § 216(b). See Lindsay v. Gov’t Employees
Ins. Co., C.A. No. 04-1213 (D.D.C. Nov. 9, 2004).
Accordingly, notices were sent to all potential class members
requesting them to affirmatively opt into the action if they so
4
By regulation, New York adopted the FLSA’s requirement that
an employer pay an employee time and one-half for overtime. The
regulation also excludes “bona fide executive, administrative, or
professional” employees. See N.Y. Comp. Codes R. & Regs. tit. 12,
§ 142-2.2.
 5

desired. The district court, however, subsequently declined to
certify McGruder’s requested class of GEICO auto damage
adjusters with state law claims under the New York Act. See
Lindsay v. Gov’t Employees Ins. Co., 355 F. Supp. 2d 119
(D.D.C. 2004). First noting that “[t]his Circuit has yet to
address the question of supplemental jurisdiction in the context
of a federal opt-in class and a state opt-out class,” the district
court briefly surveyed the decisions from other courts—both
district and circuit—and ultimately concluded that “it would be
inappropriate to exercise jurisdiction over plaintiffs who have
not affirmatively opted into the federal action.” Id. at 120, 121.
Thus, it decided to exercise its supplemental jurisdiction over
only the state law claims “of plaintiff McGruder and any New
York plaintiff who is eligible to opt into the federal action and
opts in by filing a notice of consent.” Id. at 123. We allowed
the appellants to appeal the order denying class certification
pursuant to Federal Rule of Civil Procedure 23(f). See In re
Lindsay, No. 05-8001 (D.C. Cir. Mar. 18, 2005). Because
subject matter jurisdiction is a prerequisite to class certification,
it is properly reviewed in a Rule 23(f) interlocutory appeal. Cf.
In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98,
108 (D.C. Cir. 2002) (constitutional standing issue properly
raised in Rule 23(f) appeal). Accordingly, we consider the
district court’s denial of class certification based on its decision
not to exercise supplemental jurisdiction.
II.
Although it is not clear from the district court order whether
the court made its supplemental jurisdiction ruling under 28
U.S.C. § 1367(a)5 or 28 U.S.C. § 1367(c),6 we conclude that its
decision was based on subsection (a). First, its discussion of
certification of the state law claims does not mention subsection
5
See infra p. 6.

6
See infra note 8.
 6

(c). In contrast, its discussion regarding the exercise of its
supplemental jurisdiction over the state law claims of the FLSA
class members does. Lindsay, 355 F. Supp. 2d at 120-22.
Moreover, the authority upon which the district court primarily
relies construed section 1367(a) to divest federal courts of
subject-matter jurisdiction over state law claimants who do not
also have FLSA claims. Rodriguez v. The Texan, Inc., No. 01-
C-1478, 2001 WL 1829490, at *1-*2 (N.D. Ill. 2001). Because
the district court order was based on section 1367(a), we review
its decision de novo. See Harris v. Sec’y, Dep’t of Veterans
Affairs, 126 F.3d 339, 345-346 (D.C. Cir. 1997) (“We review
the District Court’s dismissal for want of jurisdiction de novo,
because the District Court dismissed on the grounds that it
lacked the original jurisdiction necessary for supplemental
jurisdiction under 28 U.S.C. § 1367(a), and not on the grounds
that it was exercising its discretion to dismiss supplemental
claims remaining after dismissal of original claims as authorized
by 28 U.S.C. § 1367(c)(3).”).
28 U.S.C. § 1367(a) provides:
Except as provided in subsections (b) and (c) or
as expressly provided otherwise by Federal
statute, in any civil action of which the district
courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over
all other claims that are so related to claims in
the action within such original jurisdiction that
they form part of the same case or controversy
under Article III of the United States
Constitution.
28 U.S.C. § 1367(a) (emphasis added). Leaving aside the
beginning proviso for the moment, we think it is clear that
section 1367(a) authorizes a district court to exercise its
supplemental jurisdiction in mandatory language. See New Rock
Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101
 7

F.3d 1492, 1509 (3d Cir. 1996) (“By its language § 1367(a)
confers jurisdiction in mandatory terms to include those cases
‘which form part of the same case or controversy under Article
III of the United States Constitution’ (except as expressly
excluded by statute or as provided for in subsections (b) and
(c)).”); McCoy v. Webster, 47 F.3d 404, 406 n.3 (11th Cir. 1995)
(“Section 1367(a) requires the district court to exercise
supplemental jurisdiction over claims which are closely related
to claims over which the district court has original jurisdiction.”
(emphasis added)); Executive Software N. Am. v. U.S. Dist. Ct.
for the Cent. Dist. of Cal., 24 F.3d 1545, 1555 (9th Cir. 1994)
(“By use of the word ‘shall,’ the statute makes clear that if
power is conferred under section 1367(a), and its exercise is not
prohibited by section 1367(b), a court can decline to assert
supplemental jurisdiction over a pendent claim only if one of the
four categories specifically enumerated in section 1367(c)
applies.”). In addition to its reference to subsection (b)’s
excepting provision (which relates to diversity jurisdiction only),
section 1367(a) includes three other bases for declining to
exercise supplemental jurisdiction: (1) a federal statute
“expressly provide[s] otherwise”; (2) the “other” claims are not
“so related” to the claims within the court’s original jurisdiction
that they constitute part of the same “case or controversy”; and
(3) the excepting provisions of section (c)(1)-(4), which allow
the court in its discretion to decline to exercise supplemental
jurisdiction.7

7
Subsection (c) provides:

The district courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
 8

First, we do not agree with the district court that 29 U.S.C.
§ 216(b) represents the kind of statute that is described in
section 1367(a)’s opening proviso. Section 1367(a) requires a
court to exercise supplemental jurisdiction, unless, inter alia,
“expressly provided otherwise by Federal statute.” 28 U.S.C. §
1367(a). While the United States Supreme Court has not yet
interpreted this exception, in Breuer v. Jim’s Concrete of
Brevard, Inc., 538 U.S. 691, 696-97 (2003), it has interpreted an
analogous provision in the removal statute. See 28 U.S.C. §
1441(a). Section 1441(a) permits the removal of a case over
which the district court has original jurisdiction “[e]xcept as
otherwise expressly provided by Act of Congress.” In Breuer,
the Court warned against reading the term “expressly” out of the
proviso. 538 U.S. at 696-97. There, the plaintiff argued that the
word “maintain[ ]” in section 216(b)’s provision that “[a]n
action [to recover overtime pay under section 207 of FLSA] may
be maintained . . . in any Federal or State court” prohibited the
defendant from removing the action to federal court. Id. at 694.
The Court found that “[n]othing on the face of 29 U.S.C. §
216(b) looks like an express prohibition of removal, there being
no mention of removal, let alone of prohibition.” Id.
Ultimately, the Court decided that “maintain[ ]” was too
ambiguous to prohibit removal and rejected the plaintiff’s
argument “that any text, even when ambiguous, that might be
read as inconsistent with removal is an ‘express’ prohibiting
provision under the statute.” Id. at 695. Likewise with section
216(b)’s relation to section 1367(a)—not only does section
216(b) not expressly prohibit the exercise of supplemental
jurisdiction over the state law claims of opt-out class members,
it includes no mention of supplemental jurisdiction at all. See

(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.

28 U.S.C. § 1367(c).
 9

Breuer, 538 U.S. at 694-95 (section 216(b) does not prohibit
removal, in part because removal is not mentioned).
The portion of section 216(b) relevant to supplemental
jurisdiction states, “No employee shall be a party plaintiff to any
such action unless he gives his consent in writing to become
such a party and such consent is filed in the court in which such
action is brought,” 29 U.S.C. § 216(b) (emphasis added).
GEICO argues that section 216(b)’s use of the term
“action”—as opposed to “claim” or “cause of
action”—manifests that the Congress intended to require opting-
in for the entire litigation, not merely the FLSA claims. We are
not persuaded by this argument. Even assuming GEICO’s
interpretation of section 216(b) is correct, the term “action” does
not meet section 1367(a)’s requirement of an “express[ ]”
prohibition. GEICO’s argument is precisely the sort of “verbal
hook” the Court rejected in Breuer. 538 U.S. at 696. Our
conclusion is also supported by other legislation in which the
Congress has expressly prohibited federal courts from exercising
supplemental jurisdiction over state law claims.8 See Breuer,
538 U.S. at 696 (“The need to take the express exception
requirement seriously is underscored by examples of
indisputable prohibitions . . . in a number of other statutes.”); cf.
Dir. of Revenue of Mo. v. CoBank ACB, 531 U.S. 316, 325
(2001) (“Had Congress intended to confer upon banks for
cooperatives the more comprehensive exemption from taxation
that it had provided to farm credit banks and federal land bank
8
The Violence Against Women Act provides in part that section
1367 does not “confer on the courts of the United States jurisdiction
over any State [domestic] law claim.” 42 U.S.C. § 13981(e)(4). In
United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court
invalidated (on Commerce Clause grounds) the Violence Against
Women Act. Nonetheless, section 13981(e)(4) illustrates that if the
Congress intends to divest federal courts of supplemental jurisdiction,
it does so expressly—as section 1367(a) requires.
 10

associations, it would have done so expressly as it had done
elsewhere in the Farm Credit Act.”).
Second, we consider GEICO’s argument that the state law
claims (brought under the New York Act) are not part of the
same case or controversy as the FLSA claims. In Exxon Mobil
Corp. v. Allapattah Services, Inc., 125 S. Ct. 2611 (2005), the
United States Supreme Court recently held that “where the other
elements of jurisdiction are present and at least one named
plaintiff in the action satisfies the amount-in-controversy
requirement, § 1367 does authorize supplemental jurisdiction
over the claims of other plaintiffs in the same Article III case or
controversy, even if those claims are for less than the
jurisdictional amount specified in the statute setting forth the
requirements for diversity jurisdiction.” Id. at 2615. With
respect to the exercise of supplemental jurisdiction, we find the
Exxon Mobil holding instructive, if not controlling, here. In
both, not all of the plaintiffs could invoke the district court’s
original jurisdiction and the remaining plaintiffs—with state law
claims—were before the court, if at all, under its supplemental
jurisdiction. The fact that Exxon Mobil is a diversity jurisdiction
action, see 28 U.S.C. § 1332, and this litigation invokes federal
question jurisdiction, see 28 U.S.C. § 1331, is of no moment
here.9 Section 1367(a) is written in terms of “any civil action of
which the district courts have original jurisdiction” and thus it
encompasses both diversity jurisdiction and federal question
jurisdiction actions. In Exxon Mobil, the Court had before it the
decisions of two courts of appeal reaching different results. Id.
at 2615. In one appeal, the plaintiffs attempted to bring a
diversity class action in which some of the plaintiffs’ claims met
9
Because Exxon Mobil involved diversity jurisdiction, the Court
also considered the section 1367(b) exception which applies only to
diversity jurisdiction. It went on to conclude that section 1367(b) did
not “withhold[ ] supplemental jurisdiction over the claims of plaintiffs
permissively . . . certified as class-action members pursuant to Rule
23.” Exxon Mobil, 125 S. Ct. at 2621.
 11

the amount-in-controversy requirement of section 1332 and
some did not. Id. at 2616. The Eleventh Circuit had upheld the
district court’s exercise of supplemental jurisdiction over the
claims of those plaintiffs who did not meet the requirement. Id.
The other appeal involved a diversity personal injury lawsuit in
which only some of the plaintiffs (all members of one family)
met the amount-in-controversy requirement. Id. The First
Circuit had affirmed the district court’s decision not to exercise
supplemental jurisdiction over the family members who did not
meet the requirement. Id. The Supreme Court sided with the
Eleventh Circuit, holding that section 1367 allowed the exercise
of supplemental jurisdiction over those plaintiffs who did not
meet the amount-in-controversy requirement provided at least
one plaintiff met the requirement. Id. at 2625. The Court
declared:
If the court has original jurisdiction over a single
claim in the complaint, it has original
jurisdiction over a “civil action” within the
meaning of § 1367(a), even if the civil action
over which it has jurisdiction comprises fewer
claims than were included in the complaint.
Once the court determines it has original
jurisdiction over the civil action, it can turn to
the question whether it has a constitutional and
statutory basis for exercising supplemental
jurisdiction over the other claims in the action.
Id. at 2620-21. We interpret this language to mean that so long
as the district court has original jurisdiction over a single claim,
it may exercise supplemental jurisdiction over any additional
claim that forms part of the same Article III case or controversy.
A federal claim and a state law claim form part of the same
Article III case or controversy if the two claims “derive from a
common nucleus of operative fact” such that “the relationship
between [the federal] claim and the state claim permits the
 12

conclusion that the entire action before the court comprises but
one constitutional ‘case.’ ” Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156, 164-165 (1997) (quoting United Mine Workers v.
Gibbs, 383 U.S. 715, 725 (1966)) (alteration in original). Here,
the complaint alleged that members of both classes performed
the same type of work for the same employer and were deprived
of overtime compensation as a result of the same action taken by
their employer. It is clear to us that the two claims “derive from
a common nucleus of operative fact” and thus form part of the
same Article III case or controversy. See Lyon v. Whisman, 45
F.3d 758, 761 (3d Cir. 1995) (where “the same acts violate
parallel federal and state laws, the common nucleus of operative
facts is obvious”); see also Pueblo Int’l, Inc. v. De Cardona, 725
F.2d 823, 826 (1st Cir. 1984) (supplemental jurisdiction
properly exercised over state claims where original jurisdiction
existed under parallel federal law because “[t]he facts necessary
to prove a violation of one are practically the same as those
needed to prove a violation of the other”).
In addition, GEICO argues that there is a conflict between
the opt-in procedure under section 216(b) and the opt-out
procedure under Rule 23(c)(2)(B). While there is
unquestionably a difference—indeed, an opposite
requirement—between opt-in and opt-out procedures, we doubt
that a mere procedural difference can curtail section 1367’s
jurisdictional sweep.10 Regardless of any policy decision
implicit in section 216(b)’s opt-in requirement, see DeAsencio
v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir. 2003)
(“[M]andating an opt-in class or an opt-out class is a crucial
policy decision. Congress has selected an opt-in class for FLSA
actions.”), in enacting section 1367(a), the Congress made its
intent regarding the exercise of supplemental jurisdiction clear:
“Congress conferred a broad grant of jurisdiction upon the

10
To state the obvious, Rule 23 does not fit section 1367(a)’s
“[f]ederal statute” exception.
 13

district courts, indicating a congressional desire that,
‘supplemental jurisdiction at least in the first instance . . . go to
the constitutional limit, to which it appeared to be carried in . . .
[United Mine Workers v. Gibbs, 383 U.S. 715 (1966)].’ ” In re
Walker, 51 F.3d 562, 571-72 (5th Cir. 1995) (quoting Rodriguez
v. Pacificare of Tex., 980 F.2d 1014 (5th Cir. 1993), cert.
denied, 508 U.S. 956 (1993)) (concluding section 1367 does not
confer supplemental jurisdiction on bankruptcy court)
(alterations in original).
Although, based on the foregoing discussion, we reverse the
district court’s denial of class certification to the state law
claimants who did not also opt into the FLSA claim and remand
for further proceedings, we emphasize that on remand the
district court remains free to consider whether it “may decline
to exercise” supplemental jurisdiction under 28 U.S.C. §
1367(c). Its ability to decline to exercise supplemental
jurisdiction over the claims of those class members with state
law claims only, however, is circumscribed. In declining to
exercise supplemental jurisdiction, it did not rely on section
1367(c)(1)-(4) and, we think, with good reason. First, as the
district court noted, the state law claims are not novel or
complex under section 1367(c)(1). Lindsay, 355 F. Supp. 2d at
122. It also concluded that the state law claims would not
predominate over the FLSA claims under section 1367(c)(2).11

11
The district court’s decision to exercise supplemental
jurisdiction over the state law claims of only those claimants who also
opted into the FLSA claim is thus unlike the holding in DeAsencio v.
Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003). In DeAsencio, the
plaintiffs asserted both FLSA claims and Pennsylvania state law
claims. Id. at 301. The Third Circuit found that the state law claims
predominated over the FLSA claims and that they were novel and
complex, using the language of section 1367(c)(1) and (2). Id. at 311.
First, it stated, the state claims required proof of an implied contract
between the employer, Tyson, and its employees, thereby requiring
substantial “additional testimony and proof . . . beyond that required
 14

Id. Predomination under section 1367(c)(2) relates to the type
of claim and here the state law claims essentially replicate the
FLSA claims—they plainly do not predominate.12 On remand,
the district court may consider whether “exceptional
circumstances” exist and whether “there are other compelling
reasons for declining jurisdiction” under section 1367(c)(4). In
determining whether there are “other compelling reasons,” the
district court must balance “economy, convenience, fairness, and
comity,” as the Supreme Court instructed in Gibbs. Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (citing Gibbs,
383 U.S. at 726-27). It may not, however, use subsection (c)(4)
to conclude that section 216(b)’s opt-in provision ousts the court
of supplemental jurisdiction over the state law class of those

for the FLSA action.” Id. at 310. Second, the court found that the size
disparity between the two classes “may constitute substantial
predomination by the state . . . action.” Id. Finally, the court noted
that the state claim involved “novel and complex issues of state law”
absent in the federal action. Id. at 311. It concluded that exercising
supplemental jurisdiction in those circumstances would render the
FLSA claim “an appendage to the more comprehensive state action”
and therefore disallowed the exercise of supplemental jurisdiction. Id.
at 312.
12
If “state issues substantially predominate, whether in terms of
proof, of the scope of the issues raised, or of the comprehensiveness
of the remedy sought, the state claims may be dismissed without
prejudice and left for resolution to state tribunals.” Gibbs, 383 U.S.
at 726-27. Some courts, including the DeAsencio court, have
concluded that “the disparity in numbers of similarly situated plaintiffs
may be so great that it becomes dispositive.” DeAsencio, 342 F.3d at
311. The correctness of this interpretation aside, we believe it is
inapplicable here where the two classes are almost identical in size.
At the time of briefing, approximately 204 claimants had filed
consents to opt into the FLSA claim, see Appellants’ Br. 3, and the
district court estimated the state law claimants to number
approximately 228, see Lindsay, 355 F. Supp. 2d at 121.
 15

claimants who have not joined the FLSA claim. We do not view
the difference between the opt-in procedure provided by section
216(b) for FLSA claims and the opt-out procedure for state law
claims provided by Rule 23 as fitting the “exceptional
circumstances”/“other compelling reasons” language of section
1367(c)(4).
For the foregoing reasons, we reverse the district court’s
denial of class certification to those state law claimants who did
not join the FLSA claim and remand for further proceedings
consistent with this opinion.
So ordered.