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In recent times, collective actions under the Fair Labor Standards Act of 1938 have been one of the fastest growing areas of representational litigation, far outpacing discrimination class actions in terms of case filings across the nation. Also, these cases have caused general counsel to have sleepless nights worrying about the exposure that FLSA violations present. Further complicating matters is that FLSA collective actions do not follow the traditional certification paradigm of Fed. R. Civ. P. 23 and its corresponding opt-out procedures. Instead, Section 216(b) of the FLSA provides for a unique, opt-in class action where certification is generally analyzed at two different stages in the litigation process.

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