Ervin v. OS Restaurant Services, Inc.

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-3029

D ENEENE D. E RVIN , et al.,
Plaintiffs-Appellants,
v.

OS R ESTAURANT S ERVICES, INC.,
doing business as Outback Steakhouse,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 1091—Ronald A. Guzmán, Judge.

A RGUED A PRIL 2, 2010—D ECIDED JANUARY 18, 2011

Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. In this appeal we consider whether
employees who institute a collective action against their
employer under the terms of the Fair Labor Standards
Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA”),
may at the same time litigate supplemental state-law
claims as a class action certified according to Federal
Rule of Civil Procedure 23(b)(3). The district court thought
2 No. 09-3029

not; it rejected the plaintiffs’ effort to proceed as a
class under Rule 23(b)(3) on the ground that there is a
“clear incompatibility” between the FLSA proceeding
and the proposed class action. The problem, as the
court saw it, stems from the fact that the FLSA requires
potential plaintiffs to opt in to participate in an action,
while the plaintiffs in a Rule 23(b)(3) class action are
included in the case unless they opt out. Trying to use
both systems side-by-side would be rife with complica-
tions, it concluded; more formally, it held that one
could never find the superiority requirement of Rule
23(b)(3) satisfied if the case also involved an FLSA col-
lective action.
The question whether these two distinct types of ag-
gregate litigation may co-exist within one case has
divided the trial courts in this circuit and elsewhere. In
the Northern District of Illinois alone, compare Barragan
v. Evanger’s Dog and Cat Food Co., 259 F.R.D. 330 (N.D. Ill.
2009), and Ladegaard v. Hard Rock Concrete Cutters, Inc., 2000
WL 1774091 (N.D. Ill. 2000), with Riddle v. National Sec.
Agency, Inc., 2007 WL 2746597 (N.D. Ill. 2007), McClain v.
Leona’s Pizzeria, Inc., 222 F.R.D. 574 (N.D. Ill. 2004), and
Rodriguez v. The Texan, Inc., 2001 WL 1829490 (N.D. Ill.
2001). As far as we can tell, no court of appeals has
yet had occasion to address it. But see Wang v. Chinese
Daily News, Inc., 623 F.3d 743, 753-55, 760-62 (9th Cir.
2010) (holding that a district court properly certified a
Rule 23(b)(2) class along with an FLSA collective action
and properly exercised supplemental jurisdiction over
the state-law claim); Lindsay v. Government Employees
Ins. Co., 448 F.3d 416, 420-25 (D.C. Cir. 2006) (concluding,
No. 09-3029 3

in the context of an appeal under Rule 23(f), that the
FLSA does not necessarily preclude an exercise of sup-
plemental jurisdiction over related state-law claims);
De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 307-12 (3d Cir.
2003) (concluding that a district court presiding over
an FLSA collective action should not have exercised
supplemental jurisdiction over parallel state-law claims).
We conclude that there is no categorical rule against
certifying a Rule 23(b)(3) state-law class action in a pro-
ceeding that also includes a collective action brought
under the FLSA. (We refer to these as “combined” actions,
rather than “hybrid” actions, to avoid confusion with
other uses of the term “hybrid”—e.g., for cases certified
under more than one subsection of Rule 23(b).) In com-
bined actions, the question whether a class should be
certified under Rule 23(b)(3) will turn—as it always does—
on the application of the criteria set forth in the rule;
there is no insurmountable tension between the FLSA
and Rule 23(b)(3). Nothing in the text of the FLSA or
the procedures established by the statute suggests
either that the FLSA was intended generally to oust other
ordinary procedures used in federal court or that class
actions in particular could not be combined with an
FLSA proceeding. We reverse the district court’s class-
certification determination and remand for further con-
sideration in accordance with this opinion.

I
The plaintiffs are former employees of an Outback
Steakhouse in Calumet City, Illinois. The restaurant is
4 No. 09-3029

owned and operated by the defendant, OS Restaurant
Services, Inc.; we refer to the defendant as “Outback”
throughout this opinion. The employees sued Outback
on behalf of themselves and all others who had
previously worked or were currently employed at the
restaurant as hourly or tipped employees. (A tipped
employee, like a waiter or bartender, is paid a tip-credit
wage, which is less than the minimum wage; the expecta-
tion is that her earnings for each pay period, including
both the base wage and tips, will equal or exceed the
minimum wage.)
The complaint alleges that Outback’s employee policies
run afoul of the FLSA, the Illinois Minimum Wage Law,
820 ILCS 105/1 et seq. (“IMWL”), and the Illinois Wage
Payment and Collection Act, 820 ILCS 115/1 et seq.
(“IWPCA”). Specifically, the plaintiffs argue that Out-
back violated the minimum wage and maximum hour
provisions of both the FLSA and the IMWL in three
ways: (1) by requiring tipped employees to perform
tasks during which they could not earn tips; (2) by using
money that tipped employees were required to deposit
in a “tip pool” to make up for shortages in restaurant
cash registers; and (3) by demanding that the tipped
employees contribute an excessive amount of their tips
to the tip pool. The plaintiffs’ state-law claim under the
IWPCA is based on their allegation that Outback
altered entries in its timekeeping system to reflect fewer
hours for each person, thereby enabling it to pay its
employees for less time than they actually worked.
The plaintiffs moved for conditional approval of a
federal collective action under section 16(b) of the FLSA,
No. 09-3029 5

29 U.S.C. § 216(b), which authorizes employees to act
together to seek redress for violations of the statute’s
minimum wage and maximum hour provisions, see 29
U.S.C. §§ 206 and 207. The conditional approval process
is a mechanism used by district courts to establish
whether potential plaintiffs in the FLSA collective action
should be sent a notice of their eligibility to participate
and given the opportunity to opt in to the collective
action. See, e.g., Myers v. Hertz Corp., 624 F.3d 537, 554-55
(2d Cir. 2010). The plaintiffs proposed that notice be
given to anyone who had worked as a tipped employee
at Outback since 2005. At the same time, they sought
certification under Rule 23(b)(3) of three different classes
alleging state-law claims: (1) all tipped employees who
earned less than minimum wage, in violation of the
IMWL; (2) all tipped employees who worked more than
40 hours per week but were not paid overtime, in viola-
tion of the IMWL; and (3) all employees who by virtue
of Outback’s incorrect timekeeping were not paid for
some of the time that they worked, in violation of the
IWPCA.
A magistrate judge recommended that the district
court permit the federal collective action to proceed but
deny without prejudice certification of the Rule 23(b)(3)
state-law classes. While the judge was satisfied that
the numerosity, commonality, typicality, and adequacy
requirements of Rule 23(a) had been met, he had one
minor reservation and one major concern about the
predominance and superiority requirements for a (b)(3)
class. The minor point related to the predominance re-
quirement: the plaintiffs could show, he thought, that
6 No. 09-3029

common questions predominated with respect to their
IWPCA theory and two of their three IMWL theories,
but not for the claim that Outback forced tipped em-
ployees to perform non-tip duties. The more important
stumbling block was the requirement “that a class action
is superior to other available methods for fairly and
efficiently adjudicating the controversy.” FED. R. C IV.
P. 23(b)(3). The judge decided that a Rule 23(b)(3) class
will never be superior when another part of the case is
proceeding under FLSA section 16(b), because of what
he saw as the conflict between the two different forms
of aggregate litigation.
The district court adopted the magistrate judge’s rec-
ommendation. It refused to certify the class because there
was “clear incompatibility between the ‘opt out’ nature
of a Rule 23 action and the ‘opt in’ nature of a Sec-
tion 216 action.” Without elaborating why it thought
that this was such a severe problem, the court concluded
that this conflict automatically meant that the class
action device was not a superior mechanism for re-
solving the plaintiffs’ state-law claims. It accordingly
denied class certification of those theories and permitted
the plaintiffs to move forward with their FLSA col-
lective action. We granted the plaintiffs’ petition under
Rule 23(f) for an immediate appeal of the order denying
class certification.

II
Outback rests its case for affirming the district court’s
class-certification decision exclusively on the argument
No. 09-3029 7

that the plaintiffs cannot satisfy the requirements set out
in Federal Rule of Civil Procedure 23(b)(3). There are
a number of issues that are thus not before us. Outback
does not complain about the district court’s decision
to permit the plaintiffs to proceed with their FLSA col-
lective action; nor does it argue that the FLSA in any
way preempts the state laws that the plaintiffs have
invoked; nor has it suggested that the district court
should have declined to exercise supplemental jurisdic-
tion over the state-law claims (though the district court
alluded to this question, and we return briefly to it
later). In addition, no one questions whether the plain-
tiffs have satisfied the four requirements of Rule 23(a).
This leaves us with the question whether the district
court correctly ruled that the requirements of Rule 23(b)(3)
could not be satisfied.
In fact, we can be more specific than that. Outback
argues that even if we were inclined to reverse the
district court’s determination that class treatment is not
a superior mechanism here, we could still affirm on the
ground that individual issues predominate over class
issues with respect to each of the plaintiffs’ state-law
claims. Although appellees are normally entitled to
advance any argument that was presented before the
district court in support of the order on appeal, see, e.g.,
Newsome v. McCabe, 256 F.3d 747, 753 (7th Cir. 2001), this
case is not a good candidate for that approach. While
the predominance question was explored before the
magistrate judge (who was largely persuaded by the
plaintiffs’ position), it is unclear what the district court
thought about it. At one point, the court remarked that
8 No. 09-3029

it was adopting the magistrate’s recommendation “in
full.” Standing alone, that sounds as if the district court
was endorsing the magistrate judge’s predominance
analysis. But later, the court said, “Because the Court
holds that plaintiffs cannot meet the superiority require-
ments with regard to the state law claims, it need not
address whether common issues of fact or law predomi-
nate . . . .” This is not a clear enough ruling from the
district court to support affirmance on an alternate
ground. As a result, our job in this appeal is further
simplified: we need address only whether the district
court correctly ruled that incompatibility between sec-
tion 16(b) of the FLSA and Rule 23(b)(3) means that
plaintiffs trying to pursue both options in a single pro-
ceeding will never be able to demonstrate the superiority
required by Rule 23(b)(3).
We review class-certification decisions deferentially,
in recognition of the fact that Rule 23 gives the district
courts “broad discretion to determine whether certifica-
tion of a class-action lawsuit is appropriate.” Chavez v.
Illinois State Police, 251 F.3d 612, 629 (7th Cir. 2001) (internal
quotation marks omitted). We will reverse the class-
certification decision only when we find an abuse of
discretion. Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir.
2008). If, however, the district court applies an incor-
rect legal rule as part of its decision, then the framework
within which it has applied its discretion is flawed, and
the decision must be set aside as an abuse. Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 402 (1990).
No. 09-3029 9

III
This appeal requires us to delve into the differences
between an FLSA collective action and a Rule 23 class
action—in particular, a class action arising under state
laws governing such topics as wages and overtime.
Section 16(b) of the FLSA permits an employee to par-
ticipate in a collective action only if that employee
consents in writing to be a plaintiff in the action. See 29
U.S.C. § 216(b) (“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 . . . .”); see also
Harkins v. Riverboat Services, Inc., 385 F.3d 1099, 1101
(7th Cir. 2004). In contrast, potential members of a
Rule 23(b)(3) class must be given only the opportunity to
opt out of the class action; they will automatically be
included in the class if they do not speak up. See F ED. R.
C IV. P. 23(c)(2)(B); Berger v. Xerox Corp. Retirement
Income Guarantee Plan, 338 F.3d 755, 763 (7th Cir. 2003).
As far as the district court was concerned, this distinc-
tion, and this distinction alone, rules out any chance of
finding that class treatment under Rule 23(b)(3) of the
state-law claims is a superior way to structure the case.
This was not the first time the district court had expressed
its view on this subject. See Riddle v. National Security
Agency, Inc., 2007 WL 2746597, at *7-10 (N.D. Ill. 2007).
In both Riddle and the present case, the court signaled
that it had reached this conclusion as a matter of the
interpretation of federal statutes and rules, and not
merely an exercise of discretion applicable to any par-
ticular proposed class.
10 No. 09-3029

Before examining the district court’s class-certification
analysis in greater detail, we pause briefly to address
what appears to be an exception that the district court
recognized to its belief that combined actions are impos-
sible. The district court suggested that it might treat
combined actions that are first filed in a state court and
then removed to federal court differently from com-
parable cases that originate in federal court. See also id.
at *7-9. There is no reason for any such distinction, how-
ever. An original filing and a proper removal are each
appropriate ways to reach federal court. Once a suit is
removed from state court to federal court, it is governed
by the federal court’s procedures, Claiborne v. Wisdom,
414 F.3d 715, 720 (7th Cir. 2005); there is no exclusion
for Rule 23 or for any other rule. If there is a problem
with combined actions, as the district court suggested,
then the problem exists for all cases within the federal
court’s jurisdiction.
The district court was concerned that the collective
action authorized by the FLSA would be undermined if
supplemental state-law class actions were being pursued
in the same case at the same time. By requiring people
to opt in to the federal action, Congress limited the col-
lective action under the FLSA to those who actively
sought to assert their federal rights. As we have men-
tioned, however, Rule 23(b)(3) uses a default rule of
inclusion and demands affirmative action to stay out of
the case. The court thus correctly recognized that some
of the people included as part of the state-law classes
(those who did nothing) would be excluded from the
FLSA collective action. The district court thought that
No. 09-3029 11

this outcome would undermine the intention of Con-
gress expressed in the FLSA.
In our view, the court jumped too quickly to congres-
sional intent. Before taking that step, we must examine
the text of the FLSA itself. Nothing we find suggests that
the FLSA is not amenable to state-law claims for related
relief in the same federal proceeding. Section 16(b) of the
FLSA allows employees to bring collective actions to
supplement the enforcement powers of the Secretary of
Labor under the statute. See 29 U.S.C. § 216(b) (providing
that an employee’s rights under the subsection “terminate
upon the filing of a complaint by the Secretary of Labor”);
see also Kendall v. City of Chesapeake, 174 F.3d 437, 443
(4th Cir. 1999). That provision providing that employees
may bring actions against their employers makes no
mention of state wage and labor laws. In addition, the
FLSA includes an express savings clause, which pro-
vides: “No provision of this chapter . . . shall excuse
noncompliance with any Federal or State law or
municipal ordinance establishing [a higher minimum
wage or a shorter maximum work week.]” 29 U.S.C.
§ 218(a). We agree with the amici who have filed briefs
in this case that this language has the effect of preserving
state and local regulations. We expect that it would
normally be the case that a claim under any such state
regulations would be part of the same constitutional
“case” as the FLSA claim, and thus that any such state
claims would fall within the district court’s supple-
mental jurisdiction. See 28 U.S.C. § 1367(a).
There is ample evidence that a combined action is
consistent with the regime Congress has established in
12 No. 09-3029

the FLSA. The Supreme Court’s early decisions inter-
preting the FLSA led to a great rush of litigation under
the statute. See generally Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 173 (1989). Congress responded in
the Portal-to-Portal Act of 1947, 61 Stat. 84, as amended,
29 U.S.C. §§ 251-262, by both eliminating “representative”
actions (where employees would designate another to
sue on their behalf) and by adding the opt-in provision
to the statute for collective actions brought by employ-
ees. The effect was to “limit[] private FLSA plaintiffs to
employees who asserted claims in their own right and
free[] employers of the burden of representative actions.”
Hoffman-La Roche Inc., 493 U.S. at 173. This action was
designed to eliminate lawsuits initiated 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).
Outback complains that permitting a plaintiff who
ends up in only the Rule 23(b)(3) class (because she
neither opted out of that class nor opted in to the FLSA
collective action) to proceed as part of the state-law class
is in tension with the idea that disinterested parties
were not supposed to take advantage of the FLSA. But
such a plaintiff is doing no such thing. She will not be
entitled to a single FLSA remedy, because she is not part
of the FLSA litigating group. The most that one can say
is that her state claim has found its way into federal court
under the court’s supplemental jurisdiction. But that is
a complaint that could be brought in almost every claim
that rests on section 1367 jurisdiction. In the case before
us, the Rule 23(b)(3) class and the federal collective
No. 09-3029 13

action are each comprised of a set of employees asserting
injuries under either state or federal law. Should either
or both groups prevail on the merits, each group member
will receive only the relief that is prescribed under the
law governing her part of the case. Some may be part of
both the FLSA group and the Rule 23 class; some may be
in one but not the other. We conclude that there is nothing
in the FLSA that forecloses these possibilities.
With commendable concern for its employees’
interests, Outback also urges that a combined action
carries too high a potential for confusing notice to
potential group members. It notes that the notice sent
for purposes of the FLSA must inform recipients that
they are required to opt in to the action if they wish to
be included, but the notice sent for the Rule 23(b)(3) state-
law claims must inform recipients that they will be part
of the group unless they opt out. This is not a frivolous
point, but we think that Outback has exaggerated the
intractability of the problem it has identified. Although
the potential for confusion created by a notice is a valid
case-management consideration under Rule 23(b)(3)(D),
there is no indication that the problem is any worse
than countless others that district courts face with class
actions.
It does not seem like too much to require potential
participants to make two binary choices: (1) decide
whether to opt in and participate in the federal action;
(2) decide whether to opt out and not participate in the
state-law claims. Other courts in this circuit appear to
have had little trouble working out an adequate notice
14 No. 09-3029

in this type of case. See, e.g., O’Brien v. Encotech Const.
Servs., Inc., 203 F.R.D. 346, 352 (N.D. Ill. 2001); Ladegaard,
2000 WL 1774091, at *7. When we asked at oral argument
whether Outback’s lawyers could provide any concrete
examples of confusion resulting from this type of notifica-
tion, they were unable to point to a single instance.
Finally, if these actions were to proceed separately—the
FLSA in federal court and the state-law class action in
state court—an entirely different and potentially worse
problem of confusion would arise, with uncoordinated
notices from separate courts peppering the employees.
As a general rule, it will usually be preferable if the
notice comes from a single court, in a unified proceeding,
where the court and lawyers alike are paying close atten-
tion to the overall message the participants will receive.
Because the district court ruled as a matter of law that
these two actions could not proceed simultaneously, there
is little in the record that throws light on whether there
is anything about this particular case that would stand in
the way of the combined actions the plaintiffs are seeking
to pursue. Rather than addressing that here, we think
it best to allow the district court to take the first look at
the superiority issue from that perspective, taking into
account the usual requirements spelled out in Rule
23(b)(3).

IV
Before concluding, we need to return to the subject
of supplemental jurisdiction. The district court did not
dispose of the plaintiffs’ state-law claims by declining to
No. 09-3029 15

exercise supplemental jurisdiction, but it did refer to
supplemental jurisdiction as part of its Rule 23 analysis.
It thought that because the set of state-law plaintiffs in
the case was potentially larger than the set of FLSA plain-
tiffs, it made less sense to exercise supplemental juris-
diction over the state-law claims. This was yet another
reason why, in its view, the proposed Rule 23(b)(3)
class failed the superiority requirement. Because the
district court will be revisiting the class-certification
issue on remand, a few words on this point from us are
in order.
As we have implied, supplemental jurisdiction was
the only basis for the district court’s authority over
these particular state-law claims; it appears that diversity
jurisdiction, which in other cases might also have been
an option, was not available to these plaintiffs. While
there is diversity of citizenship between the parties in
this case—the defendant is a Delaware corporation with
its principal place of business in Florida, see Hertz Corp. v.
Friend, 130 S. Ct. 1181 (2010), and the plaintiffs are
citizens of Illinois—it is exceedingly unlikely that
any one plaintiff satisfies the amount-in-controversy re-
quirement, see 28 U.S.C. § 1332(a). We therefore proceed
on the assumption that diversity jurisdiction is out of the
picture.
Section 1367(a) grants the district courts supplemental
jurisdiction to hear all other claims that are so related
to the claims over which they have original jurisdiction
that they form part of the same Article III case or contro-
versy “[e]xcept . . . as expressly provided otherwise by
16 No. 09-3029

Federal statute . . . .” 28 U.S.C. § 1367(a). We agree with
those of our sister circuits who have concluded that
the requirements of section 1367(a) are satisfied in cases
like this one, where state-law labor claims are closely
related to an FLSA collective action. See Wang, 623 F.3d
at 761-62; Lindsay, 448 F.3d at 420-24. We have little to
add to the D.C. Circuit’s detailed discussion in Lindsay
of section 1367(a), but it is important to emphasize that
the FLSA is not a statute that “expressly provide[s]”
some limit to supplemental jurisdiction, as section 1367(a)
contemplates that some federal statutes might. See
Lindsay, 448 F.3d at 421-22. For the reasons we have
already given, the opt-in procedures in the FLSA do not
operate to limit—expressly or impliedly—a district
court’s supplemental jurisdiction to only those state-law
claims that also involve opt-in procedures.
Once the requirements of section 1367(a) are satisfied,
the district court must consider whether there is some
other reason why it ought to decline to exercise supple-
mental jurisdiction over state-law claims. The statute
explains that a district court can decline to exercise sup-
plemental jurisdiction in the event that
(1) the claim raises a novel or complex issue of
State law,
(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
No. 09-3029 17

(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). The plaintiffs’ claims against Outback
under the IMWL and the IWPCA do not present any
complex state-law issues, and so subsection (c)(1) should
not be a problem. Compare De Asencio, 342 F.3d at
312 (concluding that supplemental jurisdiction should
not have been exercised over parallel state-law claims
based in part on the conclusion that the case raised novel
issues of state law that would require greater factual
development than the federal issues); see also Wang,
623 F.3d at 761 (discussing the unique circumstances
of De Asencio). Nor is subsection (c)(3) implicated here.
Moreover, while there may in some cases be ex-
ceptional circumstances or compelling reasons for de-
clining jurisdiction, 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 jurisdic-
tion under section 1367(c)(4). See Lindsay, 448 F.3d at
424 (“[W]e doubt that a mere procedural difference can
curtail section 1367’s jurisdictional sweep.”).
That leaves subsection (c)(2), which permits a court to
decline supplemental jurisdiction if the state-law claims
“substantially predominate” over the federal action.
The district court concluded that the difference in size
between the larger state-law class and the smaller
FLSA collective action made a difference in the supple-
mental jurisdiction analysis. If all it meant by this was
that the need to include additional parties was
disfavored, then its decision was in conflict with the
18 No. 09-3029

statute. Section 1367(a) expressly states that “[s]uch
supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.”
28 U.S.C. § 1367(a). Inclusion of additional litigants as
unnamed members of a class is of no more jurisdictional
significance than joinder or intervention, and so we
understand that final sentence as one that covers class
actions as well.
There are other problems with the district court’s ap-
proach to predominance as well. A simple disparity in
numbers should not lead a court to the conclusion that
a state claim “substantially predominates” over the FLSA
action, as section 1367(c) uses that phrase. As the Third
Circuit recognized in De Asencio, “[p]redomination under
section 1367 generally goes to the type of claim, not the
number of parties involved.” 342 F.3d at 311; see also
Wang, 623 F.3d at 762; Lindsay, 448 F.3d at 425. Here, as
was the case in Lindsay, “the state law claims essentially
replicate the FLSA claims—they plainly do not predomi-
nate.” 448 F.3d at 425. As long as the claims are similar
between the state plaintiffs and the federal action, it
makes no real difference whether the numbers vary.
It is true that the Third Circuit concluded in De Asencio
that the number of state-law plaintiffs might—and did
in the case before it—so far outnumber those engaged
in the FLSA collective action that “the federal action
[was] an appendage to the more comprehensive state
action.” 342 F.3d at 312. That was part of the reason that
it held that supplemental jurisdiction should not have
been exercised in that case. Without taking a position on
No. 09-3029 19

whether a state-law class might ever so dwarf a federal
FLSA action that supplemental jurisdiction becomes
too thin a reed on which to ferry the state claims into
federal court, we can say conclusively that in the
present case the disparity between the number of FLSA
plaintiffs and the number of state-law plaintiffs is not
enough to affect the supplemental jurisdiction analysis.
In the majority of cases, it would undermine the
efficiency rationale of supplemental jurisdiction if two
separate forums were required to adjudicate precisely
the same issues because there was a different number of
plaintiffs participating in each claim. See Williams
Electronic Games, Inc. v. Garrity, 479 F.3d 904, 906 (7th
Cir. 2007) (“The rationale of the supplemental jurisdic-
tion is economy in litigation, and so a relinquishment
of it that clearly disserved economy would be a can-
didate for reversal.”). In this case, there are approxi-
mately 30 participants in the FLSA collective action and
potentially 180 to 250 people who might participate in
any of the three Rule 23 classes. Although that is a
greater disparity than the D.C. Circuit considered in
Lindsay, where there were 228 people in the state-law class
and 204 proceeding under the FLSA, see 448 F.3d 425 n.12,
the overall numbers are still low. Our case is quite
unlike De Asencio, where the Third Circuit was con-
fronted with an FLSA collective action involving 447
people and a 23(b)(3) class of 4,100 plaintiffs. See 342
F.3d at 305.
We agree with the D.C. Circuit in Lindsay and the Ninth
Circuit in Wang that the Third Circuit decision in
De Asencio represents only a fact-specific application of
20 No. 09-3029

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. In our case, the
record reflects no reason to doubt that it is sensible to
litigate all theories in a single federal proceeding. The
identity of the issues, the convenience to both plaintiffs
and defendants of not having to litigate in multiple
forums, and the economy of resolving all claims at once
suggests that an exercise of supplemental jurisdic-
tion will normally be appropriate. In all but the most
unusual cases, there will be little cause for concern
about fairness or comity.
* * *
We conclude that the district court’s decision denying
certification of plaintiffs’ proposed classes under Rule 23
amounted to an abuse of discretion. We R EVERSE
the district court’s denial of class certification, and we
R EMAND for further proceedings consistent with this
opinion.

1-18-11