In Baldridge vs. SBC Communications Inc, No 04-10819 (5th Cir. Mar. 28, 2005) the plaintiffs, employees of Cingular Wireless LLC filed an action for overtime pay under the FLSA. After discovery had commenced, the district court certified the case as a collective action under § 216(b), then modified the certification by drastically narrowing the scope of the class. The Defendants sought and the court declined to certify an interlocutory appeal under 28 U.S.C. § 1292(b). Defendant brought an interlocutory appeal anyway, pursuant to the "collateral order" exception to the final judgment rule and drawing analogy to F.R.C.P. 23(f), which has been specifically amended to allow for interlocutory review of class certification decisions in Rule 23 class actions.
The panel rejected resort to the collateral order doctrine, because the certification decision does not conclusively determine the disputed question. The court also rejected any analogy to the policies animating Rule 23(f) to allow interlocutory appeals of class certification in cases where the potential "costs and pressures on the defendant to settle" tipped the balance. "Although such policy concerns may be proper for legislative attention, they are irrelevant to the issue of whether the Cohen collateral order exception applies."
From a policy standpoint, the court noted that a critical difference between a FLSA class action and a rule 23 class action is that the former requires each class member to opt in as a party plaintiff, but the latter includes all absent class members who do not affirmatively opt out. Consequently, Congress could rationally conclude that the default rule allows rule 23 certification orders, on average, to result in larger, more financially onerous classes, thereby giving stronger policy justification for a special procedural rule allowing interlocutory appeals of those orders and trumping the final judgment rule of § 1291.