In a recent case combining opt-in claims under the Fair Labor Standards Act (FLSA) and putative class claims under Rule 23, however, a district court enabled one-way intervention by the putative class members. Class members should not be permitted to see how a case will play out at trial before deciding whether to opt out of a damages class – a practice known as “one-way intervention.” Congress even amended Rule 23 to eliminate this practice, because it gives class members the ability to benefit from a favorable merits determination without subjecting themselves to the binding effect of an unfavorable one. Takeaway: In theory, class litigation should be fair.
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