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Click here for the full text of this decision FACTS:A group of Cingular Wireless employees filed suit against their employer over alleged overtime pay deficiencies under the Fair Labor Standards Act. After discovery began, the district court certified the case as a collective act under 216(b) of the act. The district court then modified the certification by drastically narrowing the scope of the class. The trial court would not certify an interlocutory appeal and has set a date on which to consider a motion for decertification of the class. The employees attempt an interlocutory appeal. HOLDING:Dismissed for want of appellate jurisdiction. The court determines it does not have appellate jurisdiction � pursuant to the collateral order exception to the final judgment rule that emanates from Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) � over a 216(b) class certification order. The court observes that the district court has already modified the class certification, and the certification order is subject to further revision, and possibly decertification, before the district court even gets to the merits of the case. Cingular correctly point out that the holding in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) � which describes the class of orders that come within the exception as conclusively determining the disputed question, resolving an important issue completely separate from the merits of the action, and being effectively unreviewable on appeal from a final judgment � is abrogated to the extent that the subsequently enacted Federal Rule of Civil Procedure 23(f) specifically allows for interlocutory review of class certification decisions at the discretion of the respective courts of appeals under rule 23. But, as the district court observed, this case involves a “garden-variety” 216(b) action, not a Rule 23 class action. Rule 23(f) is therefore inapplicable. “Although the holding of Coopers & Lybrand may have been abrogated by the enactment of rule 23(f), the Court’s reasoning is persuasive of the method by which we should analyze the application of Cohen to questions of class certification in the absence of such a procedural rule or similar legislative enactment. That is the situation with which we are confronted � all we have before us is the final judgment rule of 1291, the FLSA collective action provision, and Cohen.” The court says that, although such policy concerns may be proper for legislative attention, they are irrelevant to the issue of whether the Cohen collateral order exception applies. OPINION:Smith, J.; Davis, Smith and Dennis, JJ.

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