Isaac Harris v. Medical Transportation Management, Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2022 Decided July 18, 2023

No. 22-7033

ISAAC HARRIS, ET AL.,
APPELLEES

v.

MEDICAL TRANSPORTATION MANAGEMENT, INC.,
APPELLANT

v.

STAR TRANSPORTATION LLC, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01371)

Jean-Claude André argued the cause for appellant. With
him on the briefs were John J. Hathway, Darci F. Madden, and
William F. Ryan.

Jennifer B. Dickey, Gilbert C. Dickey, and Jessica L.
O’Brien were on the brief for amicus curiae the Chamber of
Commerce of the United States of America in support of
appellant.
 2
William M. Jay and David J. Zimmer were on the brief for
amicus curiae Prof. Joan Steinman in support of appellant.

Michael T. Kirkpatrick argued the cause for appellees.
With him on the brief were Joseph M. Sellers, Harini
Srinivasan, and Wendy Liu.

Robert H. Klonoff, Elizabeth J. Cabraser, and Samuel
Issacharoff, pro se, were on the brief for amici curiae Robert
H. Klonoff, Elizabeth J. Cabraser, and Samuel Issacharoff, in
support of appellees as to Rule 23(c)(4) standard.

Before: MILLETT and CHILDS, Circuit Judges, and
ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Isaac Harris, Darnell Frye, and
Leo Franklin work as non-emergency medical transportation
drivers. In July 2017, they brought a putative class action and
Fair Labor Standards Act collective action against Medical
Transportation Management, Inc. (“MTM”). Their complaint
alleged that MTM is their employer and had failed to pay them
and its other drivers their full wages as required by both federal
and District of Columbia law.

MTM now appeals the district court’s certification of an
“issue class” under Federal Rule of Civil Procedure 23(c)(4),
and its denial of MTM’s motion to decertify plaintiffs’ Fair
Labor Standards Act collective action. We remand the district
court’s certification of the issue class because the court failed
to ensure that it satisfies the class-action criteria specified in
Rule 23(a) and (b). We decline to exercise pendent appellate
jurisdiction to review the district court’s separate decision on
the Fair Labor Standards Act collective action.
 3

I

A

Federal Rule of Civil Procedure 23 governs class action
litigation in the federal courts. Rule 23(a) sets out the threshold
criteria for eligibility as a class action, which are that (1) the
proposed class be “so numerous that joinder of all members is
impracticable”—the numerosity requirement; (2) class
members’ claims share common questions of law or fact—the
commonality requirement; (3) the claims or defenses of the
named representative parties be typical of all class members—
the typicality requirement; and (4) the representative parties be
capable of providing adequate representation to the whole
class—the adequacy of representation requirement. FED. R.
CIV. P. 23(a)(1)–(4).

In addition to meeting those four prerequisites, Rule 23(b)
provides that a proposed class must also qualify as one of three
specified “types of class actions.” FED. R. CIV. P. 23(b)(1)–(3)
(formatting modified); see Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 614 (1997).

Rule 23(b)(1) defines the first type of class action as
applying when there are multiple claims arising out of the same
subject matter and the prosecution of separate actions by or
against individual class members “would create a risk of”
either “inconsistent or varying” judgments establishing
“incompatible standards of conduct” for the party opposing the
class. FED. R. CIV. P. 23(b)(1). A class can also proceed under
Rule 23(b)(1) if resolution of individual class members’ claims
would, “as a practical matter” dispose of the interests of the
non-party members of the class, or “would substantially impair
or impede their ability to protect their interests[.]” Id.
 4
Rule 23(b)(2) identifies a second type of class action,
which may be maintained if the party opposing the class “has
acted or refused to act on grounds that apply generally to the
class,” so that “final injunctive relief or corresponding
declaratory relief” would be appropriate to resolve all class
claims. FED. R. CIV. P. 23(b)(2).

Finally, a Rule 23(b)(3) class action can be maintained
when “questions of law or fact common to class members
predominate over any questions affecting only individual
members,” and “a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy.” FED. R. CIV. P. 23(b)(3).

Other parts of Rule 23 set out the procedural and
operational requirements of a class action. For example, upon
certifying a class action, the district court “must define the class
and the class claims, issues, or defenses[.]” FED. R. CIV. P.
23(c)(1)(B). Also, for any class certified under Rule 23(b)(3),
the district court is required to provide class members “the best
notice that is practicable under the circumstances, including
individual notice to all members who can be identified through
reasonable effort.” FED. R. CIV. P. 23(c)(2)(B). The notice
requires, among other things, a statement informing class
members of their right to opt out of the action and thereby to
maintain their ability to pursue any action individually. FED.
R. CIV. P. 23(c)(2)(B)(v) (“The notice must clearly and
concisely state in plain, easily understood language * * * that
the court will exclude from the class any member who requests
exclusion[.]”); see also, e.g., FED. R. CIV. P. 23(e), (g).

In addition to all of those mandatory class-action
requirements, Rule 23 has permissive provisions concerning
the district court’s management of class litigation. This case
concerns the application of one of them, Rule 23(c)(4), which
 5
provides: “When appropriate, an action may be brought or
maintained as a class action with respect to particular issues.”
FED. R. CIV. P. 23(c)(4).

This appeal asks us to decide what role Rule 23(c)(4) plays
in class certification decisions and, in particular, whether a
Rule 23(c)(4) issue class must also meet the Rule 23(a) and (b)
class action requirements.

B

1

Non-emergency medical transportation services are used
by individuals who receive Medicaid and lack transportation
for their medical appointments. MTM contracts with the
District of Columbia to provide District residents with such
services. To fulfill those contracts, MTM engages dozens of
subcontractors.

Plaintiffs Harris, Frye, and Franklin (collectively,
“Drivers”) are non-emergency medical transportation drivers
in the District of Columbia. The Drivers allege that while they
and hundreds of other drivers were working for MTM and its
subcontractors, MTM failed to pay their legally mandated
wages under federal and District law. They allege that they and
the other drivers routinely started work between 5:00 a.m. and
7:00 a.m., and worked until between 5:00 p.m. and 8:00 p.m.
Nevertheless, the Drivers were paid a flat rate for driver
services that “regularly fell below” the legally required
“minimum wage and the living wage rates” and omitted
overtime wages. Compl. at 9–10, J.A. 40–41.

The Drivers brought suit against MTM under the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), under
 6
District of Columbia wage-and-hour laws, see D.C. Code § 32-
1001 (Minimum Wage Act); id. § 2-220.01 et seq. (Living
Wage Act); id. § 32-1302 (Wage Payment and Collection
Law), and for common-law breach of contract. As required to
state a claim under those causes of action, the Drivers’
complaint alleged that MTM was an employer of the Drivers
under federal law and a general contractor under District law.

Whether MTM is either an employer or a general
contractor with respect to the Drivers is a threshold question of
liability for MTM. If MTM is deemed the employer of the
plaintiffs, or a joint employer with its subcontractors, MTM
may be held liable under both the FLSA and District law. And
if it is a “general contractor,” that status would separately
subject it to strict liability for violations of District law by its
subcontractors. See Harris v. Medical Transp. Mgmt., Inc., 300
F. Supp. 3d 234, 246 (D.D.C. 2018) (“Harris I”). But if, as
MTM argues, it neither employed nor acted as a general
contractor in relation to the Drivers, it cannot be liable for any
underpayment of wages. In that case, the subcontractors MTM
engaged and to which the Drivers directly reported would be
the only proper defendants.

2

MTM moved to dismiss the complaint in its entirety. The
district court granted the motion as to the Drivers’ common-
law breach of contract claim, but denied it as to the Drivers’
claims under federal and District statutory law. Harris I, 300
F. Supp. 3d at 237. Then the district court granted the Drivers’
motion for conditional certification of an FLSA collective
action, approved the Drivers’ proposed collective action notice,
and equitably tolled the limitations period for members of the
collective action. See Harris v. Medical Transp. Mgmt., Inc.,
317 F. Supp. 3d 421, 423–424 (D.D.C. 2018) (“Harris II”).
 7

The Drivers subsequently filed a motion to certify a class
action under Rule 23(b)(3) for the non-FLSA claims. The
district court denied the motion. Harris v. Medical Transp.
Mgmt., Inc., No. 17 Civ. 01371, 2020 WL 5702085 (D.D.C.
Sept. 24, 2020) (“Harris III”). The district court found that the
proposed class action met the requirements of Rule 23(a), and
the superiority requirement of Rule 23(b)(3)—that is, it found
that a class action would be “superior to other available
methods for fairly and effectively adjudicating the
controversy[,]” FED. R. CIV. P. 23(b)(3). Harris III, 2020 WL
5702085, at *4–7. The district court also found that the
question of whether MTM was, with its subcontractors, a joint
employer of the putative class members “meets the
predominance requirement of Rule 23(b)(3)” because evidence
common to the class would be used to resolve it. Id. at *9.

But the district court held that individualized evidence
would be required to assess whether MTM’s payment system
was responsible for the underpayment of wages, given
“numerous metrics that would be relevant to assessing MTM’s
liability as to each class member.” Harris III, 2020 WL
5702085, at *9. Accordingly, because the evidence common
to the putative class as a whole did not predominate over such
individual considerations, the district court declined to certify
a class under Rule 23(b)(3). Id. at *12. The district court also
denied without prejudice the Drivers’ motion in the alternative
to certify an issue class under Rule 23(c)(4). Id. at *13.

Following supplemental briefing, the district court granted
in part the Drivers’ renewed motion to certify issue classes
under Rule 23(c)(4). Harris v. Medical Transp. Mgmt., Inc.,
No. 17 Civ. 01371, 2021 WL 3472381, at *1 (D.D.C. Aug. 6,
2021) (“Harris IV”). The district court certified one issue class,
defining that class as encompassing the two questions of (1)
 8
whether MTM is a joint employer of the putative class
members; and (2) whether MTM is a general contractor under
D.C. law, and thereby strictly liable for any wage law
violations committed by its subcontractors. Id. at *9. The
district court reasoned that certifying an issue class for those
two issues would “materially advance the litigation” because,
if MTM is neither a joint employer nor a general contractor, it
will not be liable in the lawsuit for any claims. Id. (citation
omitted). But if MTM meets one or both of those definitions,
the Drivers will have established a critical component of their
case. Id.; see also Harris III, 2020 WL 5702085, at *6. The
district court also noted that the Drivers would rely on evidence
common to all proposed class members to attempt to prove that
MTM is a joint employer or a general contractor. Harris IV,
2021 WL 3472381, at *9.

In the same opinion, the district court denied MTM’s
motion to decertify the plaintiffs’ FLSA collective action. A
collective action under the FLSA requires the members to be
“similarly situated.” 29 U.S.C. § 216. That term is not defined
by the FLSA. Because our circuit has not yet established a
standard for “similarly situated,” the district court applied a test
from the Second and Ninth Circuits, which asks whether “party
plaintiffs [are] alike with regard to some material aspect of
their litigation.” Harris IV, 2021 WL 3472381, at *3 (quoting
Campbell v. City of Los Angeles, 903 F.3d 1090, 1113–1114
(9th Cir. 2018)) (emphasis in Campbell; alteration in Harris);
see also Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502,
515–522 (2d Cir. 2020), cert. dismissed, 142 S. Ct. 639 (2021).
The district court then determined that the collective members
were similarly situated with respect to the question of whether
MTM is their joint employer and, because that inquiry is a
material aspect of the litigation, the court denied MTM’s
motion to decertify the collective action. Harris IV, 2021 WL
3472381, at *6–7.
 9

3

After filing a petition for leave to file an interlocutory
appeal under Rule 23(f) in this court, see In re Medical Transp.
Mgmt., Inc., No. 21-8006, MTM also moved the district court
to certify the FLSA decision for interlocutory review under 28
U.S.C. § 1292(b) and to stay proceedings pending the appeal.
The district court denied both motions. Harris v. Medical
Transp. Mgmt., Inc., No. 17 Civ. 01371, 2021 WL 5446829, at
*1 (D.D.C. Nov. 22, 2021) (“Harris V”).

This court subsequently granted MTM’s petition to file an
appeal of the class certification decision and directed the
parties to address whether we should also exercise pendent
appellate jurisdiction over the FLSA decision. In re Medical
Transp. Mgmt., Inc., No. 21-8006, 2022 WL 829169, at *1
(D.C. Cir. March 17, 2022).

II

The district court had jurisdiction over this action under 28
U.S.C. § 1331 and § 1367. We have jurisdiction to consider
MTM’s interlocutory appeal of the district court’s class
certification order under 28 U.S.C. § 1292(e). We decline,
though, to exercise pendent appellate jurisdiction to review the
district court’s denial of FLSA decertification.

III

While interlocutory appeals are generally disfavored, Rule
23(f) provides that “[a] court of appeals may permit an appeal
from an order granting or denying class-action certification”
under Rule 23. FED. R. CIV. P. 23(f). An appeal will generally
be warranted “when: (1) ‘there is a death-knell situation for
 10
either the plaintiff or defendant[,]’ in that the class-certification
decision will effectively end the party’s ability to litigate; (2)
‘the certification decision presents an unsettled and
fundamental issue of law relating to class actions, important
both to the specific litigation and generally, that is likely to
evade end-of-the-case review;’ or (3) ‘the district court’s class
certification decision is manifestly erroneous.’” In re White,
64 F.4th 302, 307 (D.C. Cir. 2023) (alteration in original)
(quoting In re Lorazepam & Clorazepate Antitrust Litig., 289
F.3d 98, 105 (D.C. Cir. 2002)).

Applying those factors, we hold that interlocutory review
of the class certification decision is appropriate in this case.
The district court’s decision to certify an issue class “‘presents
an unsettled and fundamental issue of law relating to class
actions’ that is ‘important’ and ‘likely to evade end-of-the-case
review[.]’” In re Medical Transp. Mgmt., Inc., 2022 WL
829169, at *1 (quoting Lorazepam, 289 F.3d at 99–100). More
specifically, the question of under what conditions a Rule
23(c)(4) “issue class” can be certified when no lawsuit or cause
of action has been certified as a class is an “unsettled and
fundamental issue of law relating to class actions, important
both to the specific litigation and generally[.]” See Lorazepam,
289 F.3d at 105. This court has not yet addressed that question.
Cf. In re Johnson, 760 F.3d 66, 75 (D.C. Cir. 2014)
(recognizing “a controversy over the proper use of issue
classes,” but declining to review “the district court’s
determination of how best to manage the issues before it”
because “the appropriate use of an issue class was not raised or
briefed”); In re Brewer, 863 F.3d 861, 875–876 (D.C. Cir.
2017) (finding no “manifest error” in district court’s failure to
“certif[y] a Rule 23(c)(4) issue class on liability alone”).

Other circuits have applied Rule 23(c)(4) in a variety of
ways. See, e.g., In re Nassau County Strip Search Cases, 461
 11
F.3d 219, 226–227 (2d Cir. 2006) (“[A] court may employ
subsection (c)(4) to certify a class as to liability regardless of
whether the claim as a whole satisfies Rule 23(b)(3)’s
predominance requirement.”); Russell v. Educational Comm’n
for Foreign Med. Graduates, 15 F.4th 259, 269–270 (3d Cir.
2021) (“[D]istrict courts may certify ‘particular issues’ for
class treatment even if those issues, once resolved, do not
resolve a defendant’s liability, provided that such certification
substantially facilitates the resolution of the civil dispute,
preserves the parties’ procedural and substantive rights and
responsibilities, and respects the constitutional and statutory
rights of all class member[s] and defendants.”), cert. denied,
142 S. Ct. 2706 (2022); Gunnells v. Healthplan Servs., Inc.,
348 F.3d 417, 438–446 (4th Cir. 2003); id. at 441
(“[S]ubsection 23(c)(4) should be used to separate one or more
claims that are appropriate for class treatment, provided that
within that claim or claims (rather than within the entire lawsuit
as a whole), the predominance and all other necessary
requirements of subsections (a) and (b) of Rule 23 are met.”)
(internal quotation marks omitted); Castano v. American
Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996) (“The
proper interpretation of the interaction between subdivisions
(b)(3) and (c)(4) is that a cause of action, as a whole, must
satisfy the predominance requirement of (b)(3) and that (c)(4)
is a housekeeping rule that allows courts to sever the common
issues for a class trial.”); Martin v. Behr Dayton Thermal
Prods. LLC, 896 F.3d 405, 413 (6th Cir. 2018) (“Rule 23(c)(4)
contemplates using issue certification to retain a case’s class
character where common questions predominate within certain
issues and where class treatment of those issues is the superior
method of resolution.”); McReynolds v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 672 F.3d 482, 491–492 (7th Cir. 2012)
(Rule 23(c)(4) issue class could be used to resolve only a
disparate impact issue); cf. Valentino v. Carter-Wallace, Inc.,
97 F.3d 1227, 1234 (9th Cir. 1996) (“Even if the common
 12
questions do not predominate over the individual questions so
that class certification of the entire action is warranted, Rule 23
authorizes the district court in appropriate cases to isolate the
common issues under Rule 23(c)(4)(A) and proceed with class
treatment of these particular issues.”) (citing the earlier version
of Rule 23(c)(4)). 1

Given the variety of approaches and the frequency with
which the certification of issue classes arises, the propriety of
the court’s issue-class certification decision in this case
presents “an important, recurring, and unsettled question of
class action law.” See In re White, 64 F.4th at 310.

In addition, the question of when issue classes can be
certified is likely to evade end-of-the-case review. That would
happen, for example, if the district court holds that MTM is
neither an employer nor a general contractor, resolving this
case on the merits in MTM’s favor. MTM might lack any
remaining injury from the class certification decision at that
point and so be unable or unlikely to seek review of the
question. Likewise, even if MTM is found to be a joint
employer or a general contractor, it could prevail on the merits,
resolving the suit in its favor. That too would make end-of-
case review unlikely.

For those reasons, we find it appropriate to exercise our
discretion to entertain this interlocutory appeal. See In re
White, 64 F.4th at 312. We review the class certification

1
As originally adopted, Rule 23(c)(4) read: “When appropriate (A)
an action may be brought or maintained as a class action with respect
to particular issues, or (B) a class may be divided into subclasses and
each subclass treated as a class, and the provisions of this rule shall
then be construed and applied accordingly.” FED. R. CIV. P. 23(c)(4)
(1966). After the 2007 amendments to Rule 23, the former Rule
23(c)(4)(B) is now Rule 23(c)(5).
 13
decision for an abuse of discretion. Califano v. Yamasaki, 442
U.S. 682, 703 (1979); Garcia v. Johanns, 444 F.3d 625, 631
(D.C. Cir. 2006). The district court’s interpretation of Rule 23
is a question of law that we review de novo. See Orozco v.
Garland, 60 F.4th 684, 688 (D.C. Cir. 2023).

IV

We hold that the district court abused its discretion by
certifying the issue class under Rule 23(c)(4) without first
determining that Rule 23’s requirements for class certification
were met as to the issue class. Rule 23(c)(4) does not create a
fourth category of class action beyond those specified in Rule
23(b). Instead, Rule 23(c)(4) elucidates what district courts can
do as part of managing Rule 23-qualifying class actions.

As a result, any “issue class” under Rule 23(c)(4) must also
meet the threshold requirements of Rule 23(a) and be
maintainable under one of the class action types laid out in Rule
23(b). Because the district court here did not explain how the
issue class it certified met the requirements of Rule 23(a) and
(b)—with (b)(3) being the relevant type of class action in this
case—we remand for further consideration.

A

Under the plain text of Rule 23, all certified classes must
meet both the threshold requirements of Rule 23(a) and be
maintainable under one of Rule 23(b)’s categories. There is no
freestanding class to be certified under Rule 23(c)(4).

To start, courts repeatedly have held that the district court
must apply the requirements of Rule 23(a) and Rule 23(b) when
certifying any class. Those criteria are fundamental
prerequisites to the existence of a class action. See FED. R. CIV.
 14
P. 23(a) (describing “prerequisites” to class action); FED. R.
CIV. P. 23(b)(3) (requiring district court to “find[]”
predominance and superiority); see also, e.g., Tyson Foods,
Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (Rule 23(b)(3)
“requires that, before a class is certified under that subsection,
a district court” make the required findings of predominance
and superiority); In re White, 64 F.4th at 313 (abuse of
discretion not to apply Rule 23(a) factors); Wang v. Chinese
Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013) (“A party
seeking class certification must satisfy the requirements of
Federal Rule of Civil Procedure 23(a) and the requirements of
at least one of the categories under Rule 23(b).”); Gariety v.
Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004) (“A
district court may, in its discretion, order that an action proceed
as a class action only if it finds that the requirements of Federal
Rule of Civil Procedure 23 have been satisfied.”); In re
LifeUSA Holding Inc., 242 F.3d 136, 143 (3d Cir. 2001) (“In
order to be certified, a class must satisfy the four requirements
of Rule 23(a) of the Federal Rules of Civil Procedure[.] * * *
If these Rule 23(a) requirements are satisfied, the court must
also find that the class is maintainable under Rule 23(b)(1), (2),
or (3).”).

Rule 23(c)(4) does not give the district court a pass on
those preconditions. To the contrary, Rule 23(c)(4) says
upfront that an issue class may only be certified “[w]hen
appropriate[.]” FED. R. CIV. P. 23(c)(4). That appropriateness
inquiry naturally includes the elementary class-action
requirements of Rules 23(a) and (b), which ensure that class
litigation is fair, suitable, and advisable—that is, appropriate.

What is more, Rule 23(c)(4)’s use of the phrase
“maintained as a class action” echoes Rule 23(b)’s language
that “[a] class action may be maintained” if, and only if, Rule
23(a) is satisfied and if the proposed class falls into one of Rule
 15
23(b)’s types. Plus, Rule 23(c)(4) continues (and ends) by
stating that “an action may be brought or maintained as a class
action with respect to particular issues.” FED. R. CIV. P.
23(c)(4) (emphasis added). That textually directs the court
right back to the requirements of Rule 23(a) and Rule 23(b) that
set out the basic ground rules for bringing or maintaining a
class action. See also Russell, 15 F.4th at 262; 2 NEWBERG &
RUBENSTEIN ON CLASS ACTIONS § 4:92 (6th ed.) (“[T]he
proponent of an issue class—like the proponent of any other
class action—must demonstrate that the proposed issue class
meets all of the requirements of Rule 23(a) and fits into one of
the categories of Rule 23(b)[.]”).

Finally, the structure of Rule 23 in general and Rule 23(c)
in particular counsel against finding a standalone Rule 23(c)(4)
class. Rule 23(c)(2) spells out the notice requirements for each
variant of a Rule 23(b) class. But it is silent about any notice
provisions under Rule 23(c)(4) alone. See FED. R. CIV. P.
23(c)(2). Nor does Rule 23(c)(4) contain any substantive
criteria or requirements of its own for determining if class
status is warranted or protecting the rights of absent class
members. It would be passing strange for a Rule as
systematized, specific, and detailed as Rule 23 to unleash a
distinct and wholly unregulated class device in (c)(4)’s single
sentence.

In short, Rule 23’s text and structure offer no quarter to the
view that Rule 23(c)(4) creates an independent type of class
action that is freed from all of Rule 23’s other class-action
prerequisites. So the district court should have ensured that the
 16
issue class it certified met all, and not just some, of Rule 23(a)
and (b)’s preconditions to class status.

B

1

Applying Rule 23(a) to the issue class before us, we agree
with the district court that those class-action prerequisites are
satisfied.

First, the proposed class meets Rule 23(a)(1)’s numerosity
requirement. See Harris III, 2020 WL 5702085, at *4–5. “The
numerosity requirement requires examination of the specific
facts of each case and imposes no absolute limitations.”
General Tel. Co. of the Nw. v. Equal Emp. Opportunity
Comm’n, 446 U.S. 318, 330 (1980).

In this case, there are 862 putative issue class members.
See Harris III, 2020 WL 5702085, at *5. MTM “does not
dispute these numbers and makes no arguments against
numerosity[.]” Id. We agree with the district court that such a
class qualifies as “so numerous that joinder of all members is
impracticable[.]” See FED. R. CIV. P. 23(a)(1).

Second, the proposed class meets Rule 23(a)(2)’s
commonality requirement. “Commonality requires the
plaintiff to demonstrate that the class members ‘have suffered
the same injury[.]’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 349–350 (2011) (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)). That means that putative
 17
class members’ “claims must depend upon a common
contention[.]” Id. at 350.

In this case, there are “at least two” questions of law or fact
common to the class: “(1) Whether MTM qualifies as a ‘joint
employer’ and (2) whether MTM qualifies as a general
contractor” under D.C. law. Harris III, 2020 WL 5702085, at
*5. Those common contentions and proposed common answer
cut across all putative class members and depend on common
evidence, satisfying the commonality requirement.

MTM argues that the commonality requirement is not met
because there is no “common policy or course of conduct” by
MTM across the class. MTM Opening Br. 34 (citing Dukes,
564 U.S. at 344–345). But Rule 23(a)(2) does not require that
a single policy or course of conduct be the throughline for all
plaintiffs. Rather, the putative class members must have a
“common contention” of “such a nature that it is capable of
classwide resolution—which means that determination of its
truth or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.” Dukes, 564 U.S. at
350. The questions of whether MTM is a joint employer to the
Drivers or a general contractor under D.C. law are two such
questions. That is, determining whether MTM crosses the
threshold of liability is “central to” and potentially dispositive
of “the validity” of the Drivers’ claims, see id.

Finally, the district court found, and MTM does not
dispute, that the Drivers’ claims and defenses are typical of the
class and that they and their counsel will fairly and adequately
represent the class. See FED. R. CIV. P. 23(a)(3–4); Harris III,
2020 WL 5702085, at *6–7. We agree. On this record, no
distinction between the Drivers’ claims and defenses and those
of the other class members has been identified. See J.D. v.
Azar, 925 F.3d 1291, 1322 (D.C. Cir. 2019) (per curiam) (“[T]o
 18
destroy typicality, a distinction must differentiate the ‘claims
or defenses’ of the representatives from those of the class.”)
(emphasis omitted). Nor is there any conflict of interest
between them and the class. See Amchem Prods., Inc., 521
U.S. at 625 (“The adequacy inquiry under Rule 23(a)(4) serves
to uncover conflicts of interest between named parties and the
class they seek to represent.”).

2

a

Where the district court erred was in failing to ensure that
the issue class also satisfied one of the three types of authorized
class actions under Rule 23(b). The parties agree that the only
relevant class type in this case is a (b)(3) class. The Drivers
originally sought certification under Rule 23(b)(3), and the
district court examined only the relationship between Rule
23(b)(3) and Rule 23(c)(4) before certifying the issue class.

The problem, though, is that the district court failed to find
that within the issues for the certified class—whether MTM is
a joint employer or general contractor—common questions of
law or fact predominate over individual questions, as Rule
23(b)(3) requires. See FED. R. CIV. P. 23(b)(3). The court also
failed to find that the use of an issue class to address those
questions would be a superior litigation device to other
available tools for resolving the common questions. See id.
Without those predicate determinations, the district court erred
in certifying an issue class under Rule 23(c)(4). In addition,
because the issue class arises under Rule 23(b)(3), the district
court had to determine how notice could effectively be given
in the case. See FED. R. CIV. P. 23(c)(2)(B). Notice is an
indispensable component of a class action under Rule 23(b)(3).
 19
Yet the court did not address how notice would be
administrable for this class.

The Drivers argue that the district court did make the
required (b)(3) findings when it ruled on the initial motion for
class certification, see Harris III, 2020 WL 5702085, at *7, and
that it silently incorporated those findings into its certification
of the issue class. See Harris Br. 6; Oral Arg. Tr. 48.

The Drivers are mistaken. The district court said that it
would consider predominance only “after identifying issues
suitable for class treatment[,]” and then it only reviewed
predominance as to the two issues for which it did not certify
an issue class. See Harris IV, 2021 WL 3472381, at *8, *10–
11; see also Oral Arg. Tr. 48–50 (Drivers’ counsel unable to
point the court to predominance analysis for the certified
issues); see also Harris Br. 6 (describing the district court as
relying on Harris III analysis “except as to predominance”).
Nor did the district court ever find—in the original class-
certification decision or otherwise—that the issue class met the
superiority requirement.

Because the analysis underlying the class certification
judgment omitted those key determinations, we remand for the
district court to determine whether its issue class can
appropriately be maintained under all of the Rule 23(b)(3)
criteria and consistent with Rule 23(c)(2)(B)’s notice mandate.
We outline next some of the key elements of those inquiries
implicated in this case.

b

In undertaking the predominance inquiry on remand, the
district court must ensure that the common questions within the
certified issues predominate over any individual ones. The
 20
district court must also evaluate the relationship any certified
issues have as to the dispute as a whole. A certified issue class
should encompass a reasonably and workably segregable
aspect of the litigation. For example, an issue class may be
appropriate where common questions predominate as to (i) the
determination of liability, giving rise to a liability-only issue
class; (ii) proof of a key element of a cause of action, such that
there is an issue class for that element; or (iii) another aspect of
the controversy that, if decided, would materially advance the
fair resolution of the litigation.

We start with common ground, which is that Rule 23(c)(4)
may be used to certify an issue that is less than an entire cause
of action. See Harris Br. 9; Oral Arg. Tr. 11, 15, 19; see also
FED. R. CIV. P. 23(c)(1)(B) (district court’s order certifying
class action “must define the class and the class * * * issues”).

One common use of Rule 23(c)(4) is for resolving the issue
of liability. See In re Brewer, 863 F.3d at 875–876 (noting that
district courts have the discretion to “certif[y] a Rule 23(c)(4)
issue class on liability alone”). Even where damages for a
putative class action may require individualized calculations,
courts have routinely held that those individual considerations
do not necessarily preclude certification of a class—as long as
the liability issue is common to the class and that commonality
predominates over any other individualized components of the
litigation. See Tyson Foods, 577 U.S. at 453–454 (Where “one
or more of the central issues in the action are common to the
class and can be said to predominate, the action may be
considered proper under Rule 23(b)(3) even though other
important matters will have to be tried separately, such as
damages or some affirmative defenses peculiar to some
individual class members.”) (citation omitted); McCarthy v.
Kleindienst, 741 F.2d 1406, 1415 (D.C. Cir. 1984) (“A district
court should, of course, ordinarily consider such well-
 21
established methods as bifurcating the trial into liability and
damages phases before denying certification.”); id. (“[T]he
mere fact that damage awards will ultimately require
individualized fact determinations is insufficient by itself to
preclude class certification.”).

Similarly, courts have embraced the use of a Rule 23(c)(4)
issue class for liability only, even if the remedial claims destroy
predominance for the cause of action as a whole. See, e.g.,
Nassau County, 461 F.3d at 227 (“[A] court may employ
subsection (c)(4) to certify a class as to liability regardless of
whether the claim as a whole satisfies Rule 23(b)(3)’s
predominance requirement.”); Pella Corp. v. Saltzman, 606
F.3d 391, 394 (7th Cir. 2010) (per curiam) (“A district court
has the discretion to split a case * * * by certifying a class for
liability alone where damages * * * may require individualized
assessments.”). 2

As MTM pointed out at oral argument, certification of an
issue class can also be appropriate where there is an affirmative
defense applicable to a large number but not all class members.
See Oral Arg. Tr. 6, 11, 15; cf. Nassau County, 461 F.3d at 230
(holding that district court erred by finding that presence of
affirmative defense barred certification of liability class); see

2
See also, e.g., FED. R. CIV. P. 23 Advisory Committee’s Note to
1966 amendment, 39 F.R.D. 69, 106 (1966) (Under Rule 23(c)(4),
“in a fraud or similar case the action may retain its ‘class’ character
only through the adjudication of liability to the class; the members
of the class may thereafter be required to come in individually and
prove the amounts of their respective claims.”); cf. Smilow v.
Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 41 (1st Cir. 2003)
(“[E]ven if individualized determinations were necessary to calculate
damages, Rule (23)(c)(4)(A) would still allow the court to maintain
the class action with respect to other issues.”) (referring to the pre-
2007 version of Rule 23(c)(4)).
 22
also Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d
32, 39 (1st Cir. 2003) (discussing the role of affirmative
defenses in Rule 23(b)(3) predominance analysis).

Courts have also recognized other appropriate issues for
(c)(4) issue classes. See, e.g., Russell, 15 F.4th at 270 (holding
that “district courts may certify ‘particular issues’ for class
treatment even if those issues, once resolved, do not resolve a
defendant’s liability”) (quoting FED. R. CIV. P. 23(c)(4));
McReynolds, 672 F.3d at 490–491 (finding that disparate
impact claims could “most efficiently be determined on a class-
wide basis, consistent with” Rule 23(c)(4)); Valentino, 97 F.3d
at 1234 (“Rule 23 authorizes the district court in appropriate
cases to isolate the common issues under [Rule 23(c)(4)] and
proceed with class treatment of these particular issues.”). Only
one circuit has suggested otherwise. See Castano, 84 F.3d at
745 n.21 (observing in dicta that “a cause of action, as a whole,
must satisfy the predominance requirement of (b)(3)”).

But when creating issue classes, district courts must heed
Rule 23’s carefully calibrated limits on class certification. The
predominance inquiry “tests whether proposed classes are
sufficiently cohesive to warrant” class litigation of their
substantive claims, rather than bringing individual suits. See
Amchem Prods., Inc., 521 U.S. at 623. In that way, the
predominance inquiry is an important safeguard against
unreasonably fractured litigation, and simultaneously protects
the rights of named parties and absent class members alike. See
id. at 615 (Predominance ensures that the class action is
“promot[ing] * * * uniformity of decision as to persons
similarly situated, without sacrificing procedural fairness or
bringing about other undesirable results.”) (internal quotation
marks omitted). Predominance also helps courts establish that
evidence can be fairly and sensibly presented in a way that
protects the parties’ competing interests. See Russell, 15 F.4th
 23
at 270; 2 NEWBERG & RUBENSTEIN § 4:49 (The predominance
requirement ensures that individual class members are
“sufficiently similarly situated” such that “due process permits
their claims to be compromised in the aggregate.”).

So district courts must ensure that Rule 23(c)(4)’s
authorization of issue classes does not end up at war with Rule
23(b)(3)’s predominance requirement: Plaintiffs cannot
effectively skirt the functional demands of the predominance
requirement by seeking certification of an overly narrow issue
class and then arguing that the issue (inevitably) predominates
as to itself. Cf. Castano, 84 F.3d at 745 n.21 (noting that such
an interpretation would “eviscerate the predominance
requirement”).

Nor can predominance become a tautological inquiry.
Instead, when certifying any issue class, the district court must
explain how, within the context of the particular litigation
before it, common questions predominate within a reasonably
and workably segregable component of the litigation. An issue
class cannot consist of a single common question that
predominates as to itself. Lastly, because the baseline for
predominance is the resolution of all issues within a fair and
administrable trial process, courts must also address how
dividing the litigation through the creation of an issue class
protects all parties’ interests in the full presentation of their
claims and evidence.

c

In applying the superiority requirement on remand, the
district court must explain how the use of issue classes is
“superior to other available methods for fairly and efficiently
adjudicating the controversy.” FED. R. CIV. P. 23(b)(3). This
requirement “reinforce[s] the point that the court with the aid
 24
of the parties ought to assess the relative advantages of
alternative procedures for handling the total controversy[.]”
FED. R. CIV. P. 23 Advisory Committee’s Note to 1966
amendment, 39 F.R.D. 69, 103 (1966).

The superiority requirement ensures that class
adjudication makes the litigation more manageable and
promotes the prompt and efficient resolution of the case. See,
e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 860 (1999)
(“One great advantage of class action treatment of mass tort
cases [at issue in Ortiz] is the opportunity to save the enormous
transaction costs of piecemeal litigation[.]”); Califano, 442
U.S. at 701 (“[T]he class-action device saves the resources of
both the courts and the parties by permitting an issue
potentially affecting [the putative class members] to be
litigated in an economical fashion under Rule 23.”).

The district court here did not explain how creating this
issue class was superior to other potential ways of handling the
litigation. Neither was the Drivers’ counsel at oral argument
able to identify any benefits to judicial economy that would
make class litigation superior to other trial management tools
in this case, beyond tolling the statute of limitations. See Oral
Arg. Tr. 41–43.

Yet one alternative to class litigation might be deciding a
partial summary judgment motion focused on the issues
proposed to be certified—such as MTM’s employer or general
contractor status. See Wright v. Schock, 742 F.2d 541, 543–
544 (9th Cir. 1984) (“Under the proper circumstances—where
it is more practicable to do so and where the parties will not
suffer significant prejudice—the district court has discretion to
 25
rule on a motion for summary judgment before it decides the
certification issue.”).

To be sure, Rule 23(c)(1)(A) directs the district court to
determine the question of certification “[a]t an early practicable
time[.]” FED. R. CIV. P. 23(c)(1)(A). And our district court’s
Local Rules require a certification motion within 90 days of
filing the complaint, absent an extension by the district court.
See Local Rule 23.1(b).

But the district court in this case suspended the 90-day
deadline pending the resolution of MTM’s motion to dismiss.
See Minute Order, Harris, No. 17 Civ. 01371 (D.D.C. Oct. 26,
2017). And the litigation here unfolded at such a pace that the
motion to certify the class was not fully submitted until the case
was nearly three years old. The district court therefore should
at least have considered whether, at that point, it remained a
superior form of litigation to certify an issue class rather than
to resolve the threshold questions going to MTM’s potential
liability by way of a partial summary judgment motion (such
as the Drivers’ pending summary judgment motion on MTM’s
status as a joint employer or a general contractor).

d

Finally, the district court’s indication that notice is not
required for an issue class under Rule 23(b)(3) was incorrect.
In acting on MTM’s renewed motion for a stay pending appeal,
the court dismissed MTM’s argument that it would be
irreparably harmed by the issuance of class notice that might
have to be withdrawn later. The court explained that there
would be no irreparable harm to MTM, agreeing with the
Drivers that no notice needed to be issued for the (c)(4) class.
See Harris v. Medical Transp. Mgmt., Inc., No. 17 Civ. 01371,
2022 WL 1908822, at *2 (D.D.C. June 3, 2022) (citing Pls.
 26
Mem. Opp. Mot. Stay Pending Appeal at 6–7, No. 17 Civ.
01371 (D.D.C. April 8, 2022), Dkt. 213). 3

That cannot be correct. Because this issue class should
have been handled as a Rule 23(b)(3) class type, all of the
procedural protections of such a class apply. That includes
notice of class certification. Compare FED. R. CIV. P.
23(c)(2)(A) (“For any class certified under Rule 23(b)(1) or
(b)(2), the court may direct appropriate notice to the class.”),
with 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 that is practicable under the circumstances[.]”)
(emphases added).

Rule 23(b)(3)’s notice mandate means what it says, and for
good reason. Because the resolution of the action will bind
absent class members, basic principles of due process require
that they be notified that their individual claims are being
resolved, and that they may opt out of the action if they so
choose. See Dukes, 564 U.S. at 363; Phillips Petrol. Co. v.
Shutts, 472 U.S. 797, 812 (1985).

So if the district court certifies the issue class under Rule
23(b)(3) on remand, it must direct “the best notice that is
practicable” as part of any certification order. See FED. R. CIV.
P. 23(c)(2)(B).

3
Following oral argument in this court, the Drivers asked the district
court to direct notice to the class, a request that MTM opposed. See
Pls. Mot. Amend the Cert. Order & Direct Notice to the Class,
Harris, No. 17 Civ. 01371 (D.D.C. Nov. 10, 2022), Dkt. 228; Mem.
Opp. to Pls. Mot. to Amend/Correct Cert. Order & Direct Notice to
the Class, Harris, No. 17 Civ. 01371 (D.D.C. Nov. 23, 2022), Dkt.
229. That motion remains pending.
 27
V

MTM separately urges this court to exercise pendent
appellate jurisdiction and reverse the district court’s denial of
its motion to decertify the FLSA collective. We decline to
review that portion of the district court’s decision.

A

The FLSA sets out certain wage-and-hour protections for
eligible employees. For example, covered employers must pay
a minimum hourly wage and provide overtime pay to
employees for hours worked beyond 40 hours a week. 29
U.S.C. §§ 206, 207. The FLSA also authorizes aggrieved
employees to file suit to enforce their rights under the statute.
See id. § 216.

As relevant here, the FLSA authorizes “collective action”
litigation. An FLSA collective action may be maintained “by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated.” 29 U.S.C.
§ 216(b). To be bound by the judgment or to recover in an
FLSA collective action, an employee must affirmatively opt
into the litigation by filing written consent with the district
court. See id.; Lindsay v. Government Emps. Ins. Co., 448 F.3d
416, 419 (D.C. Cir. 2006).

Separate from its class action ruling, the district court ruled
that the Drivers’ collective action to enforce the wage
provisions of the FLSA was proper and could go forward,
denying MTM’s motion to decertify the FLSA class.
 28
B

This court has jurisdiction to review “final decisions” of
the district courts, 28 U.S.C. § 1291, as well as certain types of
interlocutory orders, see, e.g., id. §§ 158(d)(2)(A); 1292; 18
U.S.C. § 3731; FED. R. CIV. P. 23(f).

The district court’s denial of MTM’s motion to decertify
the FLSA collective is a nonfinal order that is not within our
ordinary jurisdiction because it does not terminate the action
on the merits. See Gelboim v. Bank of America Corp., 574 U.S.
405, 408–409 (2015) (“A ‘final decision’ is one ‘by which a
district court disassociates itself from a case.’”) (quoting Swint
v. Chambers County Comm’n, 514 U.S. 35, 42 (1995)); Catlin
v. United States, 324 U.S. 229, 233 (1945) (A final decision
“ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.”). Nor does any law
authorize the interlocutory review of collective action
determinations under the FLSA.

So to review the district court’s denial of MTM’s motion
to decertify the FLSA collective, we would have to exercise
pendent appellate jurisdiction over the FLSA dispute as part of
our review under Rule 23(f) of the separately certified issue
class.

Pendent appellate jurisdiction operates “when, in the
course of reviewing an order from which an appeal is within its
jurisdiction,” an appellate court also reviews “another order
that, while part of the same case or controversy, would not
otherwise be within its statutory jurisdiction.” Gilda Marx, Inc.
v. Wildwood Exercise, Inc., 85 F.3d 675, 678 (D.C. Cir. 1996).
Because interlocutory appeals are generally disfavored and
neither a statute nor rule specifically authorizes the use of
pendent jurisdiction, we exercise such jurisdiction “sparingly”
 29
and only “when substantial considerations of fairness or
efficiency demand it.” See id. at 678–679; id. at 680 (finding
“no occasion to take the disfavored step of exercising pendent
jurisdiction” “[w]ithout a reason to believe that the interests of
judicial economy and fairness to the parties would be served”)
(internal quotation marks and citation omitted).

Pendent jurisdiction might be warranted, though, “when
the nonappealable order is ‘inextricably intertwined’ with the
appealable order, or when review of the former is ‘necessary to
ensure meaningful review of the latter.’” Gilda Marx, 85 F.3d
at 679 (quoting Swint, 514 U.S. at 51). Yet even if that standard
is met, the ultimate decision whether to grant pendent appellate
jurisdiction lies within the court’s discretion. See Kilburn v.
Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1136 (D.C. Cir. 2004) (“In the final balance, whether or not we
have authority to exercise pendent appellate jurisdiction in this
case, there is no question that we have discretion to decline to
do so.”).

On this record, an exercise of pendent appellate
jurisdiction is not warranted for three reasons.

First, because collective actions differ materially from
Rule 23 class actions and because they each enforce different
substantive claims, our review of the district court’s collective
action ruling would stand distinct from—not be intertwined
with—our Rule 23(f) review of the class action certification
order. Which means that appellate review of the former is not
at all necessary to our review of the latter. Rule 23 actions, in
fact, “are fundamentally different from collective actions under
the FLSA[.]” Genesis Healthcare Corp. v. Symczyk, 569 U.S.
66, 74 (2013). Our analysis of Rule 23’s application to the
issue class certified by the district court has little relevant
overlap with the decision whether or not to allow the FLSA
 30
collective action, which is not an issue-specific action and turns
on a distinct legal analysis. The collective action covers all
identified FLSA issues as a group, not issue by issue.

In addition, the two group litigation mechanisms diverge
in terms of their substantive requirements. While Rule 23
mandates several prerequisites for class certification and
management of the litigation—including, for example, Rule
23(b)(3)’s predominance and superiority requirements—the
FLSA only provides that party plaintiffs must be “similarly
situated” to certify a collective. Those are quite different
questions, requiring different textual and precedential analyses.
See Myers v. Hertz Corp., 624 F.3d 537, 555–556 (2d Cir.
2010) (declining to exercise pendent appellate jurisdiction over
FLSA decision because it was not inextricably intertwined with
Rule 23; rather, Section 216(b)’s “similarly situated” inquiry is
“quite distinct from the question whether plaintiffs have
satisfied the much higher threshold” of Rule 23(b)(3)
predominance).

Nor does the collective action implicate the due process
concerns underlying the Rule 23(b)(3) issue classes and their
notice requirements. While Rule 23(b)(3) presumes that absent
class members are represented in the litigation, unless they opt
out, FLSA actions only include individuals who affirmatively
opt into the litigation. Compare FED. R. CIV. P. 23(c)(2)(B)
and FED. R. CIV. P. 23(e)(4), with 29 U.S.C. § 216(b); see also
Lindsay, 448 F.3d at 419 (“Unlike the procedure set out in 29
U.S.C. § 216(b), Rule 23[(b)(3)] class certification requires
notice to all potential class members that they must
affirmatively decline to join (‘opt out [of]’) the lawsuit if they
do not want to be class members.”).

These “significant differences between certification under
[Rule] 23 and the joinder process under [Section] 216(b)[,]”
 31
Genesis Healthcare Corp., 569 U.S. at 71 n.1, illustrate how
review of the collective action certification and the Rule 23
class certification share little common ground and, instead, “are
fundamentally different creatures.” Reinig v. RBS Citizens,
N.A., 912 F.3d 115, 131 (3d Cir. 2018).

MTM argues that pendent appellate jurisdiction is
warranted because the district court described the question of
whether to certify an issue class in the same terms as the
question of whether to decertify the FLSA collective—namely,
as hinging on whether it would “materially advance the
litigation[.]” See Harris IV, 2021 WL 3472381, at *9 (quoting
McLaughlin, 522 F.3d at 234).

That is not sufficient. This court is not bound by the
district court’s characterization of the questions before it.
Rather, “it is the ‘issues presented’ to this Court that must be
‘inextricably intertwined’ for pendent appellate jurisdiction to
be properly exercised, not the issues presented to the district
court.” Myers, 624 F.3d at 556 (quoting CFTC v. Walsh, 618
F.3d 218, 225 n.3 (2d Cir. 2010)). The class action analysis
undertaken on this appeal has no relevant overlap with the
collective action objections that MTM raises.

Second, several considerations affirmatively weigh against
the exercise of pendent appellate jurisdiction. See generally
Gilda Marx, 85 F.3d at 679. To begin, the FLSA appeal
concerns a different cause of action altogether from the Rule
23(f) petition. See id. at 678. What is more, the FLSA appeal
would require us to set out a standard for “similarly situated,”
which this circuit has not yet done, and which would require
 32
wading into a circuit conflict. 4 Given that, granting pendent
appellate review would add weighty and entirely distinct issues
to our interlocutory review—issues that have no overlap with
the Rule 23 question of issue-class certification.

Review of the FLSA order would also be interlocutory,
which further weighs against exercising pendent appellate
jurisdiction. See Gilda Marx, 85 F.3d at 679. Granting review
would compound the departure from ordinary principles of
finality. See id. And because the issues to review have no
overlap with the Rule 23 inquiry, the disruption to district court
proceedings would be doubled. Plus, were we to review the
FLSA question, we would be “reaching an issue that might be

4
Compare, e.g., Scott, 954 F.3d at 516 (“[T]o be ‘similarly situated’
means that named plaintiffs and opt-in plaintiffs are alike with regard
to some material aspect of their litigation.”), and Campbell, 903 F.3d
at 1114 (“[P]arty plaintiffs must be alike with regard to some
material aspect of their litigation.”), with Thiessen v. General Elec.
Cap. Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (weighing “several
factors, including (1) disparate factual and employment settings of
the individual plaintiffs; (2) the various defenses available to
defendant which appear to be individual to each plaintiff; [and] (3)
fairness and procedural considerations”) (internal quotation marks
omitted); Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir.
2007) (“[T]he similarities necessary to maintain a collective action
under § 216(b) must extend beyond the mere facts of job duties and
pay provisions.”) (internal quotation marks and citation omitted);
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1262 (11th Cir.
2008) (“[T]he district court must consider whether the defenses that
apply to the opt-in plaintiffs’ claims are similar to one another or
whether they vary significantly.”) (citing Anderson, 488 F.3d at 954
n.8); and Halle v. West Penn Allegheny Health Sys. Inc., 842 F.3d
215, 226 (3d Cir. 2016) (“Our Court * * * consider[s] all relevant
factors and mak[es] a determination on a case-by-case basis as to
whether the named plaintiffs have satisfied this burden by a
preponderance of the evidence.”).
 33
mooted or altered by subsequent district court proceedings.”
See id.

Third, the district court declined to certify the collective
action question for interlocutory review under 28 U.S.C.
§ 1292(b). Harris V, 2021 WL 5446829, at *4. The court
explained that MTM had failed to demonstrate “that
interlocutory appeal will materially advance the disposition of
the litigation.” Id. While the district court’s Section 1292(b)
judgment does not control our pendent jurisdiction decision,
the district court’s expert judgment on trial management is a
relevant consideration weighing against an exceptional
exercise of pendent jurisdiction. See Swint, 514 U.S. at 47
(“Congress * * * chose to confer on district courts first line
discretion to allow interlocutory appeals.”).

For those reasons, pendent appellate jurisdiction would not
be appropriate in this case.

VI

Because the district court failed to determine whether the
classes it certified met Rule 23(a) and (b)’s prerequisites, we
remand the order certifying an issue class under Federal Rule
of Civil Procedure 23(c)(4) for further consideration consistent
with this opinion. We decline to exercise pendent appellate
jurisdiction over the district court’s denial of decertification of
the FLSA collective.

So ordered.