In McElmurry v. U.S. Bank Nat'l Assn., ___ F.3d ___ (Aug. 8, 2007), the Ninth Circuit held that a district court order denying plaintiffs' motion to issue notice of a collective action under section 16(b) of the Fair Labor Standards Act ("FLSA") (29 U.S.C. §216(b)) was not immediately appealable under the collateral order doctrine. The opinion contains this useful explanation of the difference between a class action and a FSLA "collective action":
A “collective action” differs from a class action. See generally CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, 7B FED. PRAC. & PROC. § 1807 (3d ed. 2005). In a class action, once the district court certifies a class under Rule 23, all class members are bound by the judgment unless they opt out of the suit. By contrast, in a collective action each plaintiff must opt into the suit by “giv[ing] his consent in writing.” 29 U.S.C. § 216(b). As result, unlike a class action, only those plaintiffs who expressly join the collective action are bound by its results. See 29 U.S.C. § 256; Partlow v. Jewish Orphans’ Home of S. Cal., Inc., 645 F.2d 757, 758-59 (9th Cir. 1981), abrogated on other grounds by Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165 (1989). Because non-parties to a collective action are not subject to claim preclusion, giving notice to potential plaintiffs of a collective action has less to do with the due process rights of the potential plaintiffs and more to do with the named plaintiffs’ interest in vigorously pursuing the litigation and the district court’s interest in “managing collective actions in an orderly fashion.” Hoffmann-LaRoche, 493 U.S. at 173. Although § 216(b) does not require district courts to approve or authorize notice to potential plaintiffs, the Supreme Court held in Hoffman-LaRoche that it is “within the discretion of a district court” to authorize such notice. Id. at 171; see Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000) (a district court “may authorize the named plaintiffs . . . to send notice to all potential plaintiffs”).
Slip op. at 9453-54. The court held that it lacked appellate jurisdiction over the trial court's order denying the motion for notice to the potential plaintiffs, and that post-judgment appellate review provided an adequate remedy. In particular, it cited the federal rule governing the appealability of class certification orders (which differs from the California rule):
[I]t is well-established that there is no collateral order jurisdiction over a district court decision to certify or not to certify a class action under Rule 23. See Coopers & Lybrand, 437 U.S. at 477 (no collateral jurisdiction over appeal from order refusing to certify the class); Blackie v. Barrack, 524 F.2d 891, 895 (9th Cir. 1975) (no collateral jurisdiction over appeal from order certifying the class).
Slip op. at 9457.