Here, There, and Everywhere A Lawsuit: The Third Circuit Green Lights Parallel FLSA and State Law Wage Suits

Last week, in Fisher v. Rite Aid Corp., Case Nos. 11-1684 & 11-11685, the Third Circuit ruled that FLSA opt-in plaintiffs may simultaneously pursue their own parallel state-law Rule 23 opt-out class actions.  In doing so, the court held that Rule 23 opt-out class actions based on state laws that are co-extensive with the FLSA are not “inherently incompatible with the FLSA’s opt-in procedures.”  Although the Second, Seventh, Ninth, and D.C. circuit courts have previously ruled that hybrid FLSA and state law claims in the same suit are not inherently compatible, this marks the first time an appellate court has addressed the issue in the context of simultaneous, separate lawsuits. 

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