Knepper v. Rite Aid Corp.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

Nos. 11-1684 & 11-1685
___________

DANIEL KNEPPER,
Appellant at No. 11-1684
(D.C. Civil Action No. 09-cv-2069)

JAMES FISHER, individually
and on behalf of all other persons similarly situated,
Appellant at No. 11-1685
(D.C. Civil Action No. 10-cv-1865)

v.

RITE AID CORPORATION;
ECKERD CORPORATION, d/b/a Rite Aid
_______________________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Honorable John E. Jones III)
______________

Argued January 12, 2012
Before: SCIRICA, RENDELL and SMITH, Circuit Judges.

(Filed: March 27, 2012)

PETER D. WINEBRAKE, ESQUIRE (ARGUED)
R. ANDREW SANTILLO, ESQUIRE
The Winebrake Law Firm, LLC
715 Twining Road, Suite 211
Dresher, Pennsylvania 19025

ROBERT E. DeROSE, II, ESQUIRE
Barkan Meizlish, LLP
360 South Grant Avenue
P.O. Box 1989
Columbus, Ohio 43215

SETH R. LESSER, ESQUIRE
Klafter Olsen & Lesser LLP
Two International Drive, Suite 350
Rye Brook, New York 10573
Attorneys for Appellants

PATRICK G. BRADY, ESQUIRE (ARGUED)
SUZANNE K. BROWN, ESQUIRE
JOHN M. O'CONNOR, ESQUIRE
CLARA H. RHO, ESQUIRE
Epstein Becker & Green, P.C.
One Gateway Center
Newark, New Jersey 07102

2
BRIAN P. DOWNEY, ESQUIRE
Pepper Hamilton LLP
100 Market Street, Suite 200
P.O. Box 1181
Harrisburg, Pennsylvania 17108-1181
Attorneys for Appellees,
Rite Aid Corporation and
Eckerd Corporation d/b/a Rite Aid

DANIEL E. TURNER, ESQUIRE
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
191 Peachtree Street, N.E.
Suite 4800
Atlanta, Georgia 30303
Attorney for Appellee,
Rite Aid Corporation

LAURA M. MOSKOWITZ, ESQUIRE (ARGUED)
United States Department of Labor
Office of the Solicitor
200 Constitution Avenue, N.W., Room N-2716
Washington, D.C. 20210
Attorney for Amicus Curiae-Appellant,
Secretary of the United States Department of Labor

DAVID A. BORGEN, ESQUIRE
Goldstein, Demchak, Baller, Borgen & Dardarian
300 Lakeside Drive, Suite 1000
Oakland, California 94612

3
 Attorney for Amici Curiae-Appellants,
The National Employment Lawyers Association
Comité de Apoyo a los Trabajadores Agrícolas
Cornell Law School Labor Law Clinic
Friends of Farmworkers, Inc.
JUNTOS
National Employment Law Project
National Lawyers Guild Labor and
Employment Committee
Working Hands Legal Clinic
_________________

OPINION OF THE COURT
_________________

SCIRICA, Circuit Judge.

This case involves a putative conflict between an opt-
out Fed. R. Civ. P. 23(b)(3) damages class action based on
state statutory wage and overtime laws that parallel the
federal Fair Labor Standards Act (FLSA) and a separately
filed opt-in collective action under 29 U.S.C. § 216(b) of the
FLSA. Both suits allege violations arising from the same
conduct or occurrence by the same defendant. At issue is
whether federal jurisdiction over the Rule 23 class action
based solely on diversity under the Class Action Fairness Act
(CAFA), 28 U.S.C. § 1332(d), is inherently incompatible with
jurisdiction over the FLSA action, and whether the FLSA
preempts state laws that parallel its protections.

4
 I.

Plaintiff James Fisher and former plaintiff Robert
Vasvari 1 were assistant store managers at Rite Aid stores in
Maryland and Ohio respectively. In June 2009, both joined a
nationwide opt-in action under 29 U.S.C. § 216(b) of the
FLSA in the Middle District of Pennsylvania. Craig v. Rite
Aid Corp., et al., No. 4:08-cv-02317-JEJ (M.D. Pa.). The suit
sought back pay for alleged misclassification of assistant
managers as overtime-exempt under § 207 of the FLSA.

In July 2009, Fisher initiated a Fed. R. Civ. P. 23(b)(3)
class action lawsuit in the District of Maryland on behalf of
all Maryland Rite Aid assistant managers, seeking damages
for alleged misclassification as overtime-exempt under the
Maryland Wage Payment and Collection Law and Maryland,
Md. Code Ann. Lab. & Empl. §§ 3-501 to -509, and the
Maryland Wage and Hour Law (MWHL), Md. Code Ann.
Lab. & Empl. §§ 3-401 to -428. 2 The District of Maryland
dismissed the Payment and Collection claims with prejudice,

1
Mr. Vasari died and was replaced by plaintiff Daniel
Knepper, Order Substituting Party, Vasvari v. Rite Aid Corp.,
No. 1:09-CV-02069 (JEJ) (M.D. Pa. Dec. 3, 2010), but all
claims and allegations remained unchanged.
2
The MWHL parallels the overtime requirements set forth in
the FLSA, requiring the payment of overtime for work over
forty hours a week unless the employee falls within certain
exemptions, including if the employee “is exempt from the
overtime provisions of the federal [Fair Labor Standards]
Act.” Md. Code Ann. Lab. & Empl. § 3-420.

5
ruling the statute does not govern claims to overtime pay, but
dismissed the claim under the Wage and Hour law without
prejudice under the “first-filed” rule, deferring to the Middle
District of Pennsylvania. Fisher v. Rite Aid Corp., No. RDB-
09-1909, 2010 WL 2332101 (D. Md. June 8, 2010). Fisher
then refiled his class action in the Middle District of
Pennsylvania, asserting jurisdiction based solely on diversity
of citizenship under CAFA, 28 U.S.C. § 1332(d).

Also in July 2009, Vasvari initiated a Rule 23(b)(3)
class action in the District of Northern Ohio seeking damages
for alleged misclassification as overtime-exempt under the
Ohio Minimum Fair Wage Standards Act (OMFWSA),
O.R.C. §§ 4111.01-4111.17. 3 Jurisdiction was based solely
on diversity of citizenship under 28 U.S.C. § 1332(d). The
case was transferred to the Middle District of Pennsylvania
based on the forum selection clause in Vasvari’s employment
contract. Stipulated Order Concerning Transfer to the Middle
District of Pennsylvania, Vasvari v. Rite Aid Corp., No. 4:09-
cv-1699 (N.D. Ohio Oct. 19, 2009).

On February 16, 2011, the District Court for the
Middle District of Pennsylvania, noting that “each action
shares the same determinative issue,” published nearly

3
The Ohio Minimum Fair Wage Standards Act also parallels
the overtime requirements of the FLSA, requiring overtime
pay for work over forty hours a week “subject to the
exemptions of section 7 and section 13 of the ‘Fair Labor
Standards Act of 1938,’ [§§] 207, 213, as amended.” O.R.C.
§ 4111.03(a) (citation omitted).

6
identical opinions in both cases granting defendants’ motion
to dismiss on the pleadings under Fed. R. Civ. P. 12(c).
Fisher v. Rite Aid Corp., 764 F. Supp. 2d 700, 704 n.2 (M.D.
Pa. 2011); Knepper v. Rite Aid Corp., 764 F. Supp. 2d 707,
710 n.4 (M.D. Pa. 2011). It found that the Ohio state law
provisions at issue were not preempted because the FLSA
includes a “savings clause” establishing Congress’s intent not
to preempt state law. 4 Knepper, 764 F. Supp. 2d at 712. But
it ruled the Rule 23 opt-out class actions based on state
employment laws paralleling the FLSA were “inherently
incompatible” with the opt-in procedure provided by the
FLSA, which was “specifically designed to prevent litigation
through representative action” and “expresses Congress’s
intent to . . . eliminat[e] representative (i.e., opt-out) actions.”
Id. at 714 (internal quotation marks omitted); Fisher, 764 F.
Supp. 2d at 706 (internal quotation marks omitted). It
reached this conclusion even though the Rule 23 class actions
were free-standing cases brought under CAFA diversity
jurisdiction rather than “combined” actions invoking
supplemental jurisdiction, reasoning that “denying a plaintiff
the opportunity to litigate a claim in one action, but allowing
the claim to proceed in an action that only differs from the
original by docket number, does not vindicate the purposes
behind application of the doctrine in the first place.” Fisher,
764 F. Supp. 2d at 706; Knepper, 764 F. Supp. 2d at 713.
Based on this ruling that inherent incompatibility barred the

4
The District Court did not discuss preemption of the
Maryland employment law in Fisher, but its logic would
encompass that action as well.

7
suit, the District Court declined to address the further
objection that Rule 23 certification would implicate the Rules
Enabling Act. Fisher, 764 F. Supp. 2d at 704; Knepper, 764
F. Supp. 2d at 714.

Plaintiffs appealed. Both actions share the same legal
issue and present no meaningful factual differences. We
discuss them together. 5

II.

29 U.S.C. § 216(b) provides a private right of action to
recover for violations of the FLSA, including a suit by “one
or more employees for and in behalf of himself or themselves
and other employees similarly situated.” In 1947, Congress
amended this provision to require that a plaintiff in a FLSA
suit “give[] his consent in writing to become such a party and
such consent is filed in the court in which such action is
brought.” Portal-to-Portal Act of 1947, Ch. 52, § 5(a), 61
Stat. 84, 87 (codified at 29 U.S.C. § 216(b)). Because the
purpose of this amendment and its implications for federal
opt-out class actions based on state law are in dispute, we
consider its history in detail.

Congress enacted the FLSA in 1938. Fair Labor
Standards Act of 1938, ch. 676, 52 Stat. 1060 (codified at 29
U.S.C. §§ 201-219). The law sought to protect workers,

5
We exercise jurisdiction over this appeal under 28 U.S.C. §
1291. The District Court exercised jurisdiction under 28
U.S.C. § 1332(d).

8
particularly non-unionized workers, by establishing federal
minimum wage, maximum hour, and overtime guarantees that
could not be avoided through contract. Symczyk v. Genesis
HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011) (quoting
Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n.18
(1945)). As originally enacted, the law provided for
enforcement by the Secretary of Labor or through private
actions that could be brought “in any court of competent
jurisdiction by any one or more employees for and in behalf
of himself or themselves and other employees similarly
situated, or such employee or employees may designate an
agent or representative to maintain such action for and in
behalf of all employees similarly situated.” FLSA, § 16(b),
52 Stat. at 1069.

From 1944 to 1947, the Supreme Court decided three
cases determining that on-the-job travel time constituted
“work” within the meaning of the FLSA and therefore
contributed to the maximum working hours for the
calculation of overtime. Tenn. Coal, Iron, & R.R. Co. v.
Muscoda Local No. 123, 321 U.S. 590 (1944); Jewell Ridge
Coal Corp. v. Local No. 6167, United Mine Workers of Am.,
325 U.S. 161 (1945); Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680 (1946). While the first two cases were limited
to underground mining, the third extended the concept of
“portal-to-portal” pay to a large factory, determining that “the
time necessarily spent by the employees in walking to work
on the employer’s premises . . . was working time within the
scope” of the FLSA. Anderson, 328 U.S. at 691.

Workers responded to the Mt. Clemens decision by

9
initiating thousands of § 16(b) FLSA suits seeking back pay
for “portal-to-portal” violations. 6 Nearly all the suits filed
under § 16(b) were brought by unions. 7 These suits were
“representative” in the sense that, as authorized by the statute,
they were initiated by third-party union officials as
representatives of the employees, the real parties in interest.
But despite the broad language allowing suits on behalf of
those “similarly situated,” these were not opt-out class actions
analogous to suits under modern Rule 23, which did not exist
at the time. 8 Instead, case law on § 16(b) held that plaintiffs

6
By January 1947, 1,913 claims had been filed, with an
aggregate amount sought approaching $6 billion. S. Rep. No.
80-48, at 2 (1947).
7
See Regulating the Recovery of Portal-to-Portal Pay, and
For Other Purposes: Hearings Before Subcomm. No. 2 of the
H. Comm. on the Judiciary, 80th Cong. 166 (1947)
(hereinafter Hearings) (testimony of Lee Pressman, general
counsel of the CIO) (stating he knew of no suits filed by
unorganized workers); see also S. Rep. No. 80-48, at 12
(“Evidence demonstrates conclusively the existence of a very
close connection between many of the suits and certain CIO
affiliates.”). All thirteen pages of the Senate report on “the
Portal-to-Portal Lawsuits” addressed allegations of extensive
union involvement. S. Rep. No. 80-48, at 12-25.
8
The original version of Rule 23 provided three categories of
class action: “true,” involving ‘joint, common, or secondary
rights’”; “hybrid,” involving “‘several’ rights related to
‘specific property’”; and “spurious,” involving “‘several’
rights affected by a common question and related to common

10
must affirmatively join in a representative action to recover,
analogizing such suits to “spurious” class actions available
under Rule 23(a)(3) at the time. 9 Those filing suits shared

relief.” Fed. R. Civ. P. 23 advisory committee’s note,
reprinted in 39 F.R.D. 69, 98 (1966). Summarizing the
earlier rule, the Advisory Committee on Civil Rules stated,
“[J]udgments in ‘true’ and ‘hybrid’ class actions would
extend to the class (although in somewhat different ways); the
judgment in a ‘spurious’ class action would extend only to the
parties including intervenors.” Id. Because almost all
modern class actions arise from a common question but
seldom involve joint rights or a common property, under the
pre-revision Rule 23 scheme they would be categorized as
“spurious” class actions and therefore require affirmative
joinder for recovery.
9
A comprehensive survey of the case law on the question of
the classification of § 16(b) actions appears in Pentland v.
Dravo Corp., 152 F.2d 851, 853-56 (3d Cir. 1945). The court
there concluded that these actions were “spurious class
actions” requiring the joinder of plaintiffs, suggesting that it
would be a “startling result to find that every fellow employee
was bound by the estoppel of that judgment when he came to
sue the employer.” Id.; see also Lusardi v. Lechner, 855 F.2d
1062, 1070-71 (3d Cir. 1988) (observing that § 16(b) of the
FLSA and the original Rule 23 of the Federal Rules were both
enacted in 1938, and that, “[u]nder both the statute and the
rule, class actions in which absent members were not bound
by the judgment were recognized.”) This conclusion was in
accord with nearly all the scholarly commentary from the era.

11
this understanding. See Hearings at 175 (statement of CIO
counsel Lee Pressman) (testifying that in his view, “a suit
under the wage-and-hour law, if you recover, the judgment
runs only to the extent that there are individual plaintiffs—
that is, individual men who signed authorization cards”); see
also Marc Linder, Class Struggle at the Door: The Origins of
the Portal-to-Portal Act of 1947, 39 Buff. L. Rev. 53, 172
(1991). But one court suggested that the FLSA might permit
plaintiffs to join after judgment had been reached—a
procedure that later became termed “one-way” intervention,
where plaintiffs could sit out an action, choosing to opt in and
be bound by the judgment only after a favorable outcome. 10
Pentland v. Dravo Corp., 152 F.2d 851, 856 (3d Cir. 1945).

Congress responded to the Mt. Clemens decision and

See, e.g., Albert B. Gerber & S. Harry Galfand, Employees’
Suits Under the Fair Labor Standards Act, 95 U. Pa. L. Rev.
505, 508-09 (1947); Rufus G. Poole, Private Litigation under
the Wage and Hour Act, 14 Miss. L. J. 157, 165 (1942);
James A. Rahl, The Class Action Device and Employee Suits
Under the Fair Labor Standards Act, 37 Ill. L. Rev. 119, 122-
23 (1942).
10
This procedure was abolished with the revision of Rule 23
in 1966. See Fed. R. Civ. P. 23 advisory committee’s note,
39 F.R.D. at 105 (“Under proposed subdivision (c)(3), one-
way intervention is excluded”) (citing Pentland, 152 F.2d at
856); see also Am. Pipe & Const. Co. v. Utah, 414 U.S. 538,
545-47 (1974) (noting the “considerable criticism” of one-
way intervention, and the intent of the 1966 amendments to
eliminate the practice).

12
the flood of lawsuits by enacting the Portal-to-Portal Act of
1947, Ch. 52, 61 Stat. 84. The law sought to staunch the
proliferation of suits and remedy what Congress perceived to
be “wholly unexpected liabilities, immense in amount and
retroactive in operation” by statutorily reversing judicial
interpretations of the FLSA. Id. § 1. In an effort to address
the threat of “excessive and needless litigation and
champertous practices,” id., Section 5 of the law banned what
it termed “representative actions.” It amended § 16(b) to
read:

Action to recover such liability may be
maintained in any court of competent
jurisdiction by any one or more employees for
and in behalf of himself or themselves and other
employees similarly situated. 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.

Id. § 5(a) (codified at 29 U.S.C. § 216(b)). As the Supreme
Court later characterized this modification, “In part
responding to excessive litigation spawned by plaintiffs
lacking a personal interest in the outcome, the representative
action by plaintiffs not themselves possessing claims was
abolished, and the requirement that an employee file a written
consent was added.” Hoffman-La Roche, Inc. v. Sperling,
493 U.S. 165, 173 (1989).

The Sperling Court cited legislative history that further

13
illuminates the meaning of the provision. Senator Donnell,
chairman of the drafting subcommittee, offered an exposition
of § 5(a) and its purported remedy of the deficiencies of §
16(b) during Senate debates. 93 Cong. Rec. 2,182 (1947).
He observed that § 16(b) had allowed two types of actions.
“First, a suit by one or more employees, for himself and all
other employees similarly situated. That I shall call for the
purpose of identification a collective action, a suit brought by
one collectively for himself and others. . . . In [this] case an
employee . . . can sue for himself and other employees. We
have no objection to that.” Id. What Senator Donnell
objected to was the “second class of actions,” which he
deemed “a representative action, as distinguished from a
collective action.” Id. In these cases, “an agent or
representative who may not be an employee of the company
at all can be designated by the employee or employees to
maintain an action on behalf of all employees similarly
situated.” Id. He characterized this class of cases as those
“in which an outsider, perhaps someone who is desirous of
stirring up litigation without being an employee at all, is
permitted to be the plaintiff in the case.” Id. Senator Donnell
went on to explain the purpose of the requirement that each
employee give his consent in writing to become a plaintiff.
This, he argued, was a

wholesome provision, for it is certainly
unwholesome to allow an individual to come
into court alleging that he is suing on behalf of
10,000 persons and actually not have a solitary
person behind him, and then later on have
10,000 men join in the suit, which was not

14
 brought in good faith, was not brought by a
party in interest, and was not brought with the
actual consent or agency of the individuals for
whom an ostensible plaintiff filed the suit.

Id. 11

These statements, taken together with the historical
context, elucidate the congressional purpose behind § 216(b).
First, the primary concern of Congress was “representative”
actions as Senator Donnell defined them, and of the sort that
had dominated the portal-to-portal litigation—that is,
instances where union leaders allegedly “stirred up” litigation
without a personal stake in the case. As a contemporary
commentator stated, “The banning of representative actions
for unpaid wages is an obvious device to prevent the
maintenance of employee suits by labor unions.” Note, Fair
Labor Standards Under the Portal to Portal Act, 15 U. Chi.
L. Rev. 352, 360 (1948).

Second, Congress intended the requirement of written
consent to bar plaintiffs from joining a collective action well
after it had begun, particularly when the original statute of

11
Sen. Donnell also stressed that the revised § 5(a) would
prevent plaintiffs opting in after the original statute of
limitations had run. The Senate Report reiterated this view,
stating that the new language ensured that “the
commencement of the collective action does not stop the
running of the statute of limitations for those who later
become parties to the action.” S. Rep. No. 80-48, at 49.

15
limitations had run and when those opting in would not be
bound by an adverse decision. These requirements abrogated
the Pentland decision and foreclosed the possibility of one-
way intervention in FLSA actions. See Fair Labor Standards
Under the Portal to Portal Act, supra, at 360 & n.60.

In sum, the enforcement scheme in the Portal-to-Portal
Act largely codified the existing rules governing spurious
class actions, with special provisions intended to redress the
problem of representative actions brought by unions under
earlier provisions of the FLSA and the problem of “one-way”
intervention. Absent from the debates was any mention of
opt-out class actions—an unsurprising fact, since the FLSA
had not been interpreted to permit such suits. The FLSA did
not become relevant to opt-out class actions until after the
revision of Rule 23 and the creation of modern Rule 23(b)(3)
in 1966. During that process, the Advisory Committee on
Civil Rules disclaimed any intention for the new opt-out rule
to affect 29 U.S.C. § 216(b). Fed. R. Civ. P. 23 advisory
committee’s note, reprinted in 39 F.R.D. 69, 104 (1966). The
effect of this grandfathering was to convert what had been an
affirmative grant beyond the limited provisions of pre-
revision Rule 23 into “a limitation upon the affirmative
permission for representative actions that already exists in
Rule 23 of the Federal Rules of Civil Procedure. (That is to
say, were it not for this provision of § 216(b) the
representative action could be brought even without the prior
consent of similarly situated employees.)” Sperling, 493 U.S.
at 176 (Scalia, J., dissenting) (emphasis removed).

16
 III.

We exercise plenary review of a judgment under Rule
12(c). Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir.
2008) (citing Jablonski v. Pan Am. World Airways, Inc., 863
F.2d 289, 290-91 (3d Cir. 1998)). We grant the motion only
if, viewing all the facts in the light most favorable to the non-
moving party, no material issue of fact remains and the
moving party is entitled to judgment as a matter of law. Id.
Here, there are no disputed questions of fact, and we exercise
de novo review over the District Court’s determinations on
the legal questions of inherent incompatibility and
preemption. Roth v. Norfalco LLC, 651 F.3d 367, 374 (3d
Cir. 2011).

A.

29 U.S.C. § 216(b) provides:

An action to recover the liability prescribed in
either of the preceding sentences [for failure to
pay statutorily required overtime or wages
under the FLSA] 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. No employee
shall be a party plaintiff to any such action
unless he gives his consent in writing to become

17
 such a party and such consent is filed in the
court in which such action is brought.

Courts have concluded that the plain language of this
provision bars opt-out class actions to enforce the provisions
of the FLSA under the well-established principle that, where
Congress has provided a detailed remedy, other remedies are
unavailable. See, e.g., Kendall v. City of Chesapeake, Va.,
174 F.3d 437, 439-43 (4th Cir. 1999); Lusardi v. Lechner,
855 F.2d 1062, 1068 n.8 (3d Cir. 1988); Lervill v. Inflight
Motion Pictures, Inc., 343 F. Supp. 1027 (N.D. Cal. 1972).
This limitation applies to other federal laws that incorporate
the FLSA’s enforcement mechanism, primarily the Age
Discrimination in Employment Act, 29 U.S.C. § 621(b).
LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir.
1975).

The concept of inherent incompatibility seeks to
extend this logic to state employment-law claims. It arose in
the context of dual-filed FLSA opt-in and state law opt-out
class actions where the federal court was asked to exercise
supplemental jurisdiction over state law claims that paralleled
the claims under the FLSA. Some district courts have
reasoned that the contrast between an opt-in and opt-out
procedure bars the federal courts from hearing such “hybrid”
or “combined” actions. See, e.g., Ellis v. Edward D. Jones &
Co., 527 F. Supp. 2d 439 (W.D. Pa. 2007); Otto v. Pocono
Health Sys., 457 F. Supp. 2d 522, 524 (M.D. Pa. 2006);
Moeck v. Gray Supply Corp., No. 03-1950, 2006 WL 42368

18
(D.N.J. Jan. 6, 2006). 12 In this case, the District Court
applied this reasoning to an independent class action based on
state law claims brought under federal diversity jurisdiction.

The concept of inherent incompatibility has not fared
well at the appellate level. Four courts of appeals have
rejected its application to dual-filed FLSA and class actions.
Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234,
247-49 (2d Cir. 2011) (“[W]e agree with the Seventh Circuit
that . . . ‘the ‘conflict’ between the opt-in procedure under the
FLSA and the opt-out procedure under Rule 23 is not a proper
reason to decline jurisdiction.’”); Ervin v. OS Rest. Servs.,
Inc., 632 F.3d 971, 976-79 (7th Cir. 2011) (“There is ample
evidence that a combined action is consistent with the regime
Congress has established in the FLSA.”); Wang v. Chinese
Daily News, 623 F.3d 743, 760-61 (9th Cir. 2010), vacated on
other grounds, 132 S. Ct. 74 (2011) (“We follow Lindsay in
concluding that it was within the district court’s discretion to
exercise supplemental jurisdiction over the [state law] claim
in this case.”); Lindsay v. Gov’t Emps. Ins. Co., 448 F.3d 416,
424 (D.C. Cir. 2006) (“While there is unquestionably a
difference . . . between opt-in and opt-out procedures, we
doubt that a mere procedural difference can curtail section
1367’s jurisdictional sweep.”).

12
The one case cited by the District Court from outside the
Third Circuit—McClain v. Leona’s Pizzeria, Inc., 222 F.R.D.
574 (N.D. Ill. 2004)—is no longer good law in light of the
Seventh Circuit’s decision in Ervin v. OS Rest. Servs., Inc.,
632 F.3d 971 (7th Cir. 2011).

19
 The most thorough examination of the issue appears in
13
Ervin. There, the Seventh Circuit rejected the lower court’s
conclusion that the dual-filed action should be dismissed
because of inherent incompatibility, suggesting that the
district court had “jumped too quickly to congressional
intent.” Ervin, 632 F.3d at 977. Examining the text of §
216(b), the court found nothing that suggests that “the FLSA
is not amenable to state-law claims for related relief in the
same federal proceeding,” especially since the FLSA contains
an express savings clause. Id. Nor did the congressional
purpose contradict this conclusion, since the Portal-to-Portal

13
Rite Aid seeks to distinguish Ervin on the grounds that it
arose in the context of a denial of class certification, not a
motion to dismiss, and that the Illinois state laws at issue
provided greater protection than the FLSA. But its
procedural posture does not distinguish it from this case,
since the denial of certification was based primarily on the
concept of inherent incompatibility, which Ervin
unambiguously rejects. Ervin, 632 F.3d at 975; see id. at 973-
74 (“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.”). Moreover, the fact that the Illinois laws
at issue provided greater protection would be relevant on the
question of preemption, since they would then fall within the
explicit scope of the FLSA’s savings clause. But the concept
of inherent incompatibility is distinct from the issue of
preemption and hinges on the contrast between the opt-in and
opt-out class procedure, which Ervin squarely addressed.

20
Act was “designed to eliminate lawsuits by third parties
(typically union leaders) on behalf of a disinterested
employee (in other words, someone who would not otherwise
have participated in the federal lawsuit).” Id. at 978. An
employee who does not opt in to the federal class would
receive only the “relief that is prescribed under the law
governing her part of the case,” which would simply
represent the adjudication of state law claims implicit in the
concept of supplemental jurisdiction. Id.

We agree that the plain text of § 216(b) provides no
support for the concept of inherent incompatibility. The
provision specifically applies only to actions for violations of
“the provisions of section 206 or section 207 of this title” for
“unpaid minimum wages” or “unpaid overtime
compensation,” as well as claims for injunctive relief for
retaliation in violation of § 215(a)(3). 29 U.S.C. § 216(b).
Moreover, while the law requires each plaintiff to opt in to a
suit in writing, by its plain terms this requirement extends
only to “any such action”—namely, suits brought under §
216(b). Neither § 216(b) nor any other FLSA provision
addresses causes of action for relief under state employment
law. The references to state law in the FLSA manifest only
congressional intent not to preempt state standards. 29 U.S.C.
§§ 207(r)(4), 218(a), 218a, 218c(b)(2).

In the absence of a clear textual mandate, those courts
endorsing the concept of inherent incompatibility have
reasoned from congressional intent. The District Court here
stated:

21
 It is clear that Congress labored to create an
opt-in scheme when it created Section 216(b)
specifically to alleviate the fear that absent
individuals would not have their rights litigated
without their input or knowledge. To allow [a]
Section 216(b) opt-in action to proceed
accompanied by a Rule 23 opt-out state law
class action claim would essentially nullify
Congress’s intent in crafting Section 216(b) and
eviscerate the purpose of Section 216(b)’s opt-
in requirement.

Fisher, 764 F. Supp. 2d at 705 (alteration in original) (quoting
Otto, 457 F. Supp. 2d at 524); Knepper, 764 F. Supp. 2d at
712. A similar discussion appeared in Ellis, which involved a
Rule 23 opt-out action based in part on the OMFWSA filed
alongside an FLSA opt-in suit. In determining that the two
suits were inherently incompatible, the court examined the
“[h]istory and policy” of FLSA opt-in actions and Rule 23
opt-out actions in detail, stressing § 216(b)’s “two-fold
purpose of ‘limiting private FLSA plaintiffs to employees
who asserted claims in their own right and freeing employers
of the burden of representative actions.’” Ellis, 527 F. Supp.
2d at 443-46 (quoting Sperling, 493 U.S. at 173). In support,
it cited Senator Donnell’s statement, discussed at length
above, objecting to suits brought without “the actual consent
or agency of the individuals for whom an ostensible plaintiff
filed the suit.” Id. (quoting 93 Cong. Rec. 2,182 (1947))
(emphasis removed).

22
 As an initial matter, we question the implementation of
perceived congressional intent absent any clear textual or
doctrinal basis. “[T]he authoritative statement is the statutory
text, not the legislative history . . . . Extrinsic materials have a
role in statutory interpretation only to the extent they shed a
reliable light on the enacting Legislature’s understanding of
otherwise ambiguous terms.” Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); see also
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 569 (3d Cir.
2002) (noting that, in the event of a “conflict between a
statute’s plain meaning and its general policy objectives,” the
conflict should “be resolved in favor of the statute’s plain
meaning.”). As discussed, we do not find § 216(b)
ambiguous: it explicitly limits its scope to the provisions of
the FLSA, and does not address state-law relief. Because
reliance on the remarks of legislators not to supplement, but
to supplant the duly enacted statutory text “circumvent[s] the
Article I process,” Exxon Mobil, 545 U.S. at 570, we do not
need to go beyond the plain text in interpreting § 216(b).

But even if we regarded § 216(b) as ambiguous—if we
entertained the possibility that the phrase “any such action”
encompasses actions based on state-law claims that paralleled
the protections provided by the FLSA 14—we are unconvinced

14
This interpretation conflicts not only with the provision’s
plain text, as discussed, but also with its legislative history.
See Portal-to-Portal Act of 1947 § 5(b), 61 Stat. at 87 (“The
amendment made by subsection (a) of this section [requiring
plaintiffs to opt in to FLSA collective actions in writing] shall

23
by Rite Aid’s view of the legislative purpose of the Portal-to-
Portal Act. There was some concern that plaintiffs could be
bound by a decision in a case where they had neither “input
[n]or knowledge.” But the full legislative record casts doubt
on the contention that § 216(b) was intended to “eliminat[e]
representative (i.e., opt-out) actions.” Fisher, 764 F. Supp. 2d
at 706; Knepper, 764 F. Supp. 2d at 711. The historical
evidence establishes that Congress created the opt-in scheme
primarily as a check against the power of unions, whose
representatives had allegedly manufactured litigation in
which they had no personal stake, and as a bar against one-
way intervention by plaintiffs who would not be bound by an
adverse judgment. Neither purpose speaks to the propriety of
an opt-out class action, especially since modern Rule 23 opt-
out actions did not exist at the time and had not occurred
under the earlier FLSA enforcement scheme. 15 Accordingly,

be applicable only with respect to actions commenced under
the Fair Labor Standards Act of 1938 . . . .”).
15
One reason for diverging interpretations is the conflation of
two different meanings of the word “representative.” As
Senator Donnell’s statement makes clear, he understood a
representative action to be one in which “an agent or
representative who may not be an employee of the company
at all can be designated by the employee or employees to
maintain an action on behalf of all employees similarly
situated.” 93 Cong. Rec. 2,182 (1947). By contrast, although
a modern Rule 23 class action is often described as a
“representative action” with the named plaintiff as a “class
representative,” the “representative” must be a member of the

24
we disagree that certifying an opt-out class based on state
employment law contravenes the congressional purpose
behind the Portal-to-Portal Act.

Moreover, this approach to congressional intent
assumes that the only relevant congressional purpose in this
case is that expressed in enacting the Portal-to-Portal Act.
But a countervailing congressional purpose can be found in
the Class Action Fairness Act, which provides federal
jurisdiction over state-law class actions that satisfy its
requirements. Rite Aid correctly notes that CAFA does not
grant jurisdiction in all cases, providing judges discretionary
jurisdiction in some instances, 28 U.S.C. § 1332(d)(3), and
barring jurisdiction in others, 28 U.S.C. § 1332(d)(4). 16 But
the fact-specific requirements that must be satisfied before
these subsections apply demonstrate that Congress did not
intend courts to invoke an extratextual supplement outside
those exceptions to decline otherwise available jurisdiction.
See Colo. River Water Conservation Dist. v. United States,

class, not a third party without an interest in the litigation. In
the context of an employment class action, the class
representative must be an employee. A modern Rule 23 class
action is analogous to what Senator Donnell dubbed a
“collective action,” where “an employee . . . can sue for
himself and other employees,” to which Senator Donnell had
“no objection.” Id.
16
There is no suggestion by Rite Aid or the District Court
that the requirements for CAFA jurisdiction were not
satisfied, nor that any basis for denial of jurisdiction exists
under § 1332(d)(3) or (4).

25
424 U.S. 800, 808 (1976) (“When there are statutes clearly
defining the jurisdiction of the courts, the force and effect of
such provisions should not be disturbed by a mere implication
. . . .” (quoting Rosencrans v. United States, 165 U.S. 257,
262 (1897)).

Rite Aid also argues our decision in De Asencio v.
Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003), supports the
concept of inherent incompatibility. In De Asencio, we
determined that the trial court had abused its discretion by
exercising supplemental jurisdiction over an opt-out class
action based on Pennsylvania wage law filed together with an
opt-in class action under the FLSA. Id. at 307-12. We
grounded our decision in the requirements of 28 U.S.C. §
1367(c), particularly the provisions that the district court may
decline jurisdiction over a state-law claim when it “raises a
novel or complex issue of State law” or when it “substantially
predominates” over the federal claim. Id. We concluded that
the presence of two novel state-law issues, along with the
inordinate size of the state-law class, did not satisfy this
standard and led us to conclude that supplemental jurisdiction
was unavailable because “the federal action is an appendage
to the more comprehensive state action.” Id.

As this account suggests, De Asencio is
distinguishable, as the Seventh, Ninth, and D.C. Circuits have
all concluded. Ervin, 632 F.3d at 981 (“De Asencio
represents only a fact-specific application of well-established
rules, not a rigid rule about the use of supplemental
jurisdiction in cases combining an FLSA count with a state-
law class action.”); Wang, 623 F.3d at 761; Lindsay, 448 F.3d

26
at 425 n.11. Unlike the state law claims at issue in De
Asencio, there is no suggestion that the claims under the
MWHL and the OMFWSA are novel or complex; Rite Aid’s
principal objection is that these state claims are too similar to
federal claims with which the federal courts are well familiar.
Nor does this case present an instance of supplemental
jurisdiction, where there is statutory authority to decline
jurisdiction in the factual circumstances of De Asencio. 17
Here, independent jurisdiction exists over plaintiffs’ claims
under CAFA, which provides no statutory basis for declining
jurisdiction in this instance. For these reasons, we do not
believe De Asencio supports dismissal. 18

In sum, we disagree with the conclusion that
jurisdiction over an opt-out class action based on state-law
claims that parallel the FLSA is inherently incompatible with
the FLSA’s opt-in procedure. Nothing in the plain text of §
216(b) addresses the procedure for state-law claims, nor, in
17
We do not suggest there is an affirmative bar to
supplemental jurisdiction over a dual-filed opt-in/opt-out
action, only that such suits must still satisfy the specific
statutory requirements of § 1367.
18
At one point in De Asencio, we employed potentially
misleading language to describe the legislative history of the
Portal-to-Portal Act, suggesting that Congress “changed
participation in an FLSA class from ‘opt-out’ to ‘opt-in.’” De
Asencio, 342 F.3d at 306. Although this dictum played no
role in our holding, which was grounded in the specific
requirements of 28 U.S.C. § 1367, we correct this
misstatement now.

27
our view, does the provision’s legislative history establish a
clear congressional intent to bar opt-out actions based on state
law. We join the Second, Seventh, Ninth, and D.C. Circuits
in ruling that this purported “inherent incompatibility” does
not defeat otherwise available federal jurisdiction.

B.

We next consider whether the FLSA preempts the
MWHL and the OMFWSA. The District Court concluded
that it does not. Rite Aid disputes this conclusion and urges
affirmance of the dismissal on this ground.

Under the Supremacy Clause, state law that “interferes
with or is contrary to” federal law is preempted. Kurns v.
A.W. Chesterton Inc., 620 F.3d 392, 395 (3d Cir. 2010)
(quoting Free v. Bland, 369 U.S. 663, 666 (1962)). State law
may be preempted by express congressional language, “by
implication from the depth and breadth of a congressional
scheme that occupies the legislative field,” or “by implication
because of a conflict with a congressional enactment.”
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001).
Two fundamental principles guide our preemption analysis.
First, “[t]he purpose of Congress is the ultimate touchstone in
every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565
(2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996)). Second, when Congress has acted “in a field which
the States have traditionally occupied,” we presume that “the
historic police powers of the States were not to be superseded
by the Federal Act unless that was the clear and manifest
purpose of Congress.” Id.

28
 The FLSA contains a savings clause, which states, “No
provision of this chapter or of any order thereunder shall
excuse noncompliance with any Federal or State law or
municipal ordinance establishing a minimum wage higher
than the minimum wage established under this chapter or a
maximum work week lower than the maximum workweek
established under this chapter.” 29 U.S.C. § 218(a). Because
the overtime provisions of the MWHL and the OMFWSA
establish the same, rather than higher, protections than the
FLSA, they are not expressly preserved by this provision.
Nevertheless, the savings clause is relevant to the question of
preemption. Express preemption is improper here, as the
statute’s plain language evinces a clear intent to preserve
rather than supplant state law. Moreover, as the District
Court noted, the presence of the savings clause undermines
any suggestion that Congress intended to occupy the field of
wage and hour regulation.

Rite Aid urges that the state laws here constitute an
“obstacle to the accomplishment and execution of the full
purposes and objectives of Congress,” Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992), and are
impliedly preempted under the principles of conflict
preemption. But this proposition is counterintuitive, since it
suggests that state enforcement of standards that are identical
with those established in the FLSA would somehow conflict
with congressional purpose. This would be especially odd
where Congress explicitly contemplated dual enforcement of
the FLSA. Moreover, a finding of preemption here would bar
enforcement of all state wage and hour laws that did not
exceed the standards of the FLSA, a significant intrusion on

29
state authority and a reversal of the traditional presumption
against preemption, which is particularly strong given states’
lengthy history of regulating employees’ wages and hours.
See Cal. Div. of Labor Standards Enforcement v. Dillingham
Constr., 519 U.S. 316, 330 (1997) (presuming that ERISA did
not preempt a state wage law in light of the state’s lengthy
history of wage regulation); see also Daniel V. Dorris,
Comment, Fair Labor Standards Act Preemption of State
Wage-and-Hour Law Claims, 76 U. Chi. L. Rev. 1251, 1275-
81 (2009) (arguing that the lengthy and ongoing history of
state regulation of wage and hour regulations requires the
application of the presumption against preemption to the
FLSA). For these reasons, we do not believe the state laws at
issue here are impliedly preempted as an obstacle to
Congress’s purpose.

Rite Aid offers a more refined version of their
preemption argument when they suggest that, while the FLSA
does not preempt the state-law substantive provisions at issue,
the enforcement of the MWHL and the OMFWSA through
opt-out class actions conflicts with Congress’s intent in
enacting § 216(b) and should stand preempted. This
argument largely recapitulates the concept of inherent
incompatibility, which we have already rejected. The
argument fails here because of a flaw in Rite Aid’s
reasoning—namely, that the opt-out procedure at issue is
provided not by state law, but under CAFA, 28 U.S.C. §
1332(d). Because federal law cannot preempt another federal
law, and a statute from 1947 cannot impliedly repeal a law
from 2005, preemption is inapplicable.

30
 The cases cited by Rite Aid do not alter this
conclusion. In Anderson v. Sara Lee Corp., 508 F.3d 181
(4th Cir. 2007), the Court of Appeals for the Fourth Circuit
ruled that plaintiffs’ claims under North Carolina’s “contract,
negligence, and fraud” laws were preempted by the FLSA.
But Anderson is readily distinguishable because none of the
state laws at issue created the substantive rights that had been
allegedly violated. Instead, the court noted, the plaintiffs
“rely on the FLSA for their rights, and invoke state law only
as the source of remedies for the alleged FLSA violations.”
Anderson, 508 F.3d at 193. The court sensibly declined to
allow the plaintiffs to use state non-labor laws to enforce the
substantive provisions of the FLSA, analogizing their
decision to an earlier holding that plaintiffs could not enforce
their FLSA rights through a § 1983 action. Id. at 193-94
(citing Kendall, 174 F.3d 437). By contrast, plaintiffs here do
not seek to enforce rights conferred under the FLSA through
state-law remedies; they seek instead to enforce rights granted
by independent state employment laws through a federal
remedy. See Martinez-Hernandez v. Butterball, LLC, 578 F.
Supp. 2d 816, 819-21 (E.D.N.C. 2008) (holding that
plaintiffs’ claims under state statutory minimum wage and
overtime laws are not preempted under the FLSA because
“unlike Anderson . . . plaintiffs are not merely using state law
to enforce their rights under the FLSA”). We cannot
conclude that plaintiffs are doing an “end run” around the
requirements of the FLSA simply because state legislatures
made the policy decision to track federal standards in

31
enacting their own labor laws. 19

In sum, there is no evidence that Congress intended the
FLSA to preempt the MWHL and the OMFWSA. We will
19
Rite Aid also points to Ellis, 527 F. Supp. 2d 439. The
Ellis court reasoned that the state wage and hour laws at issue
in that case, including the OMFWSA, were not included
within the scope of the FLSA’s savings clause because they
did not provide greater protection than the FLSA, and that
their enforcement through a Rule 23 class action would
“essentially nullify Congress’s intent in crafting Section
216(b) and eviscerate the purpose of Section 216(b)’s opt-in
requirement.” Id. at 449-52 (quoting Otto v. Pocono Health
Sys., 457 F. Supp. 2d 522, 524 (M.D. Pa. 2006)).
We find Ellis unconvincing on this issue. The Ellis
court itself noted that the case did not require it to determine
whether the FLSA preempted state substantive laws, but
noted that it found preemption analysis merely “useful in
assessing the opt-in/opt-out conflict.” Ellis, 527 F. Supp. 2d
at 449. Since the court ultimately ruled that it was not the
state laws themselves but their method of enforcement that
conflicted with congressional policy, the decision, although
dressed in preemptive clothing, was at root based on the
concept of inherent incompatibility, which we have already
examined. The court also made the mistake, discussed
earlier, of conflating the state laws’ substantive provisions
with their remedy through the opt-out procedure outlined in
Rule 23, which is not subject to preemption. For these
reasons, we disagree with the suggestion in Ellis that the
FLSA preempts state laws that parallel its provisions.

32
affirm the District Court’s judgment that the state laws at
issue are not preempted.

C.

The Rules Enabling Act grants the Supreme Court the
power to create federal rules of practice and procedure with
the restriction that these rules “shall not abridge, enlarge, or
modify any substantive right.” 28 U.S.C. § 2072(b). Rite Aid
urges affirmance on the alternate ground that certification of a
Rule 23 class action violates this prohibition because it would
abridge the “substantive right” not to be sued in a
representative action.

The Ellis court endorsed this position in the context of
inherent incompatibility. It reasoned that Rule 23 is
procedural because it merely provides “a mechanism whereby
rights and duties of classes of plaintiffs and defendants may
be enforced,” but that the FLSA’s opt-in provision creates
“two principal substantive rights: the right of employers not
to be sued in representative actions, and the right of
employees not to have their rights litigated without their
knowledge and express consent.” Ellis, 527 F. Supp. 2d at
456 (footnote omitted). Certification under Rule 23 of state
law claims identical to those in the FLSA opt-in action would
“annihilate[] both of these intended results” because it would
subject employers to representative actions and subject
employees to the preclusive effects of a decision made
without their individual agency or input. Id. at 456-57. In
this context, therefore, Rule 23 would operate to “abridge” a
substantive right, in violation of the Rules Enabling Act. Id.

33
 Ellis is the minority view. Every other court to
examine the issue has concluded that the Rules Enabling Act
does not bar certification of an opt-out class action based on
state employment-law claims paralleling the FLSA. See, e.g.,
Butler v. DirectSat USA, LLC, 800 F. Supp. 2d 662, 675-76
(D. Md. 2011); Espenscheid v. DirectSat USA, LLC, 708 F.
Supp. 2d 781, 793 (W.D. Wis. 2010); Cohen v. Gerson
Lehrman Grp., Inc., 686 F. Supp. 2d 317, 324 n.2 (S.D.N.Y.
2010); Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 164-
65 (S.D.N.Y. 2008); Lehman v. Legg Mason, Inc., 532 F.
Supp. 2d 726, 732-33 (M.D. Pa. 2007); Neary v. Metro. Prop.
& Cas. Ins. Co., 472 F. Supp. 2d 247, 250-51 (D. Conn.
2007). This skepticism is well founded. Assuming for the
sake of argument the proposition that § 216(b) confers rights
to employers “not to be sued in representative actions” and to
employees “not to have their rights litigated without their
consent,” those rights would extend only to actions under the
FLSA and are not abridged or modified by the certification of
a state-employment law class under Rule 23. Damassia, 250
F.R.D. at 164-65. But even if we construed the provisions as
in direct conflict, the “rights” conferred under § 216(b) are
procedural under well-established precedent, since they relate
to “the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering
remedy and redress for disregard or infraction of them,”
Hanna v. Plumer, 380 U.S. 460, 464 (1965), and therefore
would be properly displaced by Rule 23, Burlington N. R.R.
Co. v. Woods, 480 U.S. 1, 4-6 (1987).

But whatever our view of the merits of the Rules
Enabling Act argument, Rite Aid’s claim cannot survive the

34
Supreme Court’s recent decision in Shady Grove Orthopedic
Associates, P.A. v. Allstate Insurance Co., --- U.S. ---, 130 S.
Ct. 1431 (2010) (plurality). There, the Court determined that
the certification of a class action under Rule 23 alleging
violations of New York law did not violate the Rules
Enabling Act, even though New York law prohibited the
petitioner’s suit from proceeding as a class action. Id. at
1442-44. The plurality rejected the respondent’s argument
that certification abridged the “substantive right . . . not to be
subject to aggregated class-action liability” conferred under
New York law and held that the “substantive nature of New
York’s law, or its substantive purpose, makes no difference.”
Id. at 1443-44 (omission in original) (emphasis removed).
“[I]t is not the substantive or procedural nature or purpose of
the affected state law that matters,” the Court continued, “but
the substantive or procedural nature of the Federal Rule.” Id.

Concurring, Justice Stevens reached the same result by
determining that the New York state law at issue was “a
classically procedural calibration” attempting to balance
competing goals of litigation similar to “filing fees or
deadlines for briefs.” Id. at 1459 (Stevens, J., concurring in
part and concurring in the judgment). He reasoned that there
is “a difference of degree between those examples and class
certification, but not a difference of kind; the class vehicle
may have a greater practical effect on who brings lawsuits
than do low filing fees, but that does not transform it into a
damages ‘proscription’ or ‘limitation.’” Id. (citations
omitted). Accordingly, Rule 23, not New York state law,
properly governed the suit. Id. at 1459-60.

35
 Shady Grove leaves no room for the arguments
advanced by Rite Aid, which parallel the contentions the
Court rejected. Under the plurality’s view, any supposed
substantive purpose underlying § 216(b) is irrelevant, and we
need only determine whether Rule 23 “really regulates
procedure,” which the Court has already concluded it does.
Under the concurrence’s view, the regulation of class relief
under § 216(b) is procedural, and class certification does not
implicate the Rules Enabling Act. Under either view, Rite
Aid’s argument fails. For these reasons, we reject Rite Aid’s
contention that permitting an opt-out class action alleging
violations of the MWHL and the OMFWSA to proceed
alongside a separately-filed FLSA opt-in action would violate
the Rules Enabling Act.

IV.

For the foregoing reasons, we will affirm the District
Court’s judgments with respect to preemption, reverse with
respect to inherent incompatibility, and remand for
proceedings consistent with this opinion.

36