### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 20, 2003 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 03-11546

________________________ D. C. Docket No. 02-80326-C V-KAM MAXINE CAMERON-GRANT, FELSHIA TISSIERA, VELDA A. FREDERICK, Plaintiffs, ROSS BASIL, Plaintiff-Appel lant,

versus MAXIM HEALTHCARE SERVICES, INC., a Foreign corporat

ion, Defendant-Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (October 20, 2003)* Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by

designation. 2 Before HULL, MARCUS and STAHL * , Circuit Judges. PER CURIAM: Plaintiff-appell

ant Ross Basil was o

ne of four plaintiff

s who brought this action under the Fai

r Labor Standard

s Act (“FLS

A”), 29 U.S. C. § 201 et seq ., on behalf of themselves as well as “similarly situated” employees. This appeal raises the question whether Basil, whose personal claims are settled and now moot, ma y appeal the district court’s order denying his motion to notify other potential plaintiffs of this FLSA action. After review and oral argument, we determine that this action is moot. I. BACKGROUND On April 12, 2002,

plaintiff-appella

nt Ross Basil, and pla

intiffs Maxine Cameron-Gr

ant, Feleshia Ti ssiera, and Veld a A. Frederic

k, brought this action against defendant -appellee Maxim Healthcare, In c. (“Maxim”) under the FLSA, 29 U.S.C. § 201 et seq . The plaintiffs filed this action “on behalf of themselves and other simila

rly situated em

ployees,” see

king to recover unpaid

back wages, unpaid overtime

compensation,

an additional equal a

mount as liquidate

d damages, and reasonable atto

rneys’ fee s and costs.1 Section 216(b) of the FLSA prov

ides, in pertinent

part: Anaction to recover the liability prescribed in either of the preceding sentences may be maintained against any employe r (including a public agency) in an y Federal or State court of competent jurisdiction by any one or more employee s for and in behalf of himself or themselves and

other employ

ees similarly

situated. No employ

ee shall be a party pla

intiff toa ny such act

ion unless he give

s his consent in writ

ing to become such a party and such consent is filed in the court in which such action is brought. 3 According to the complaint, Defendant Maxim provides healthcare services to adults. At various times, Maxim employ ed the four named plaintiffs, who are nurses that rendered nursing services on Maxim’s behalf. The complaint alleges that the four named plaintiffs sometimes worked longer than forty hours per w eek and that Maxim failed to compensate them for their work in excess of forty hours per week at a rate of at least one and one-half (11⁄2) times the regulated rate at which they we

re employe

d, in violation of 29 U .S.C. § 207. T he complaint also alleges that Maxim failed to pay the plaintiffs the applicable minimum hourly rate, in violation of 29 U.S .C. §§ 206 and 215(a) (2), and that Maxim retaliated agains

t the pl ainti ffs af

ter th ey compl ained abou t not recei ving back p ay or ov ertime compensation. On September 27, 2002, the four named plaintiffs filed a motion for an order permitt

ing court supervised no

tice to employ

ees of their opt-in r

ights. The plaintiffs sought per

mission from

the district court to

proceed as a “

collective action” under 29 U.S.C. § 216(b), 1 asserting that they “know that their claims are29 U.S.C. § 216(b).

2 In Hipp v. Liberty National Life Insurance Co. , 252 F.3d 1208 (11th Cir. 2001) , this Court specifical

ly consider

ed collective ac

tions brought unde

r the Age Discr

imination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §§ 621-34. Hipp , 252 F.3d at 1214- 15. However, the Hipp analysis is relevant to FLSA collective actions beca use“[p]laintiffs wishing to sue as a class under ADEA must utilize the opt-in class mechanism provided in 29 U.S.C. § 216(b) instead of the opt-out class procedure provided in Fed. R. Civ. P. 23.” Hipp , 252 F.3d at 1216 (citation omitted). Hipp outlined a two-tiered procedure that district courts should use in certifying collective actio

ns under § 216(b),

stating as follow

s: The first determination is made at the so-called “notice stage.” At the notice stage, the district court makes a decision – usually based only on the ple adings and any affidavits which have been submitted – whether notice of the action should be given to potential class members. Because the co

urt has minimal evid

ence, this deter

mination is made usin

g a fairly lenient standard, and typically results in “conditional ce rtification” of a representative class. If the district court “conditionally certifies” the class, putative class members are given notice and the opportunity to “opt- in.” The a ction proceeds as a representative action throughout discovery

. The second determination is typically prec ipitated by a motion for “decertifica

tion” by the d

efendant usually

filed after disc

overy is lar

gely comp

lete and the matter is ready for trial. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives – i.e. the original plaintiffs – proceed to trial on their individual claims. Id. at 1218 (qu oting Mooney v. Aramco Servs. Co. , 54 F.3d 1207, 1213-14 (5th Cir. 1995) (internal footnote omitted)). Since Hipp , the district courts in our circuit have utilized the twotiered approach described above

. See, e.g. , Reed v. Mobile Count y Sch. Sy s. , 246 F. Supp. 2d 1227, 1230 (S.D. Ala

. 2003); Barron v. Henr

y County Sch. Sys. , 242 F. Supp. 2d 1096, 1102 (M.D. Ala. 2003); Stone v. First Union Corp. , 2003 WL 21850449, *3-5 (S.D. Fla. 2003). 4 typical of the c

laims of other e

mployees of

the defendant and ar

e typical of the claims of all members of the representat ive class.” 2 See 29 U.S.C. § 216(b).5

On January 9, 2003, three of the f our named plaint

iffs, Maxine Cam

eronGrant, Feleshia

Tissiera, and V

elda Frederick,

filed a stipulation f

or dismissal wi

th prejudice of “all of their . . . claim s and causes of action in the above-styled case, in their entirety.” The dist rict court accepted th e dismissal of their claims. On January 22,

2003, Maxim stip

ulated to paying th

e fourth plaintiff’ s, appellant Basil’s, claims for unpaid wages and overtime pay. Basil had other claims pending. On February 6 , 2003, the district court denied the plai

ntiffs’ moti

on to allow notification to potenti

al opt-in plaintiffs . In analyzing the plaintiffs’ m

otion, the district court applie

d the two-part test

set forth in Dybach v. Sta te of Florida Department o f Corrections , 942 F.2d 1562 (11th C ir. 1991). In Dybach , this Court stated that the district court, before exercising its power to give notice to other potential members of the plaintiff class to “opt-in” to the lawsuit, “ should satisfy itself that there a

re other emplo

yees of the depa

rtment-em

ployer who desir

e to ‘opt-in’ and w

ho are ‘simi

larly situated’ with respect to the ir job requirem

ents and with regard to their pay provisions.” Id. at 1567-68. The district court concluded that “the aff

idavits and deposition tr

anscripts provided by

Plaintiffs are su

fficient to satisfy this Co

urt that there are

other employ

ees of Defendant who are simila rly situated with respect to their job requirements and with regard to pay provisions.”6

However, the district court also found that the plaintiffs failed to set forth evidence that any employees desired to op t-in to the lawsuit. After the denial of this motion, plaintiff Basil and defendant Maxim agreed to the dismissal o f Basil’s rem aining claims – l

eaving no claims

pending against Maxim. Thus, on March 5, 2003, the district court issued an order entering final judgment on Maxim’s stipulation that it would pay some of Basil’ s claims and that his other claims would be dismissed. According to the order and stipulated final judgment, Ma

xim specifica

lly “agreed to pay, and now has fully paid [B asil] all claimed unpaid w

ages and overtim

e pay, liquidat

ed damages equa

l to that amount, and [Basil]’s costs and attorneys’ fees.” The order also stated that “ [a]ll other claims in this case have been dismissed with prejudice.” Plaintiff Basil now

appeals the distric

t court’s order d

enying the m

otion to allow notification t

o potential opt-in plai

ntiffs. Because

Basil has settled som

e of his claims with

Maxim, agreed to dismissal of the remainder

of his claims,

and even recovered his

costs and attorney

s’ fees, we f

irst must conside

r whether this action is moot. II. DISCUSSION This appea l raises an issue of fi rst impressi on: whethe r a distric t court’s denial of a motion to notify potential opt-in plaintiffs under § 216(b) of the FLSA7

may be re viewed on appeal af

ter the named p

laintiff’s pers onal claims have become “moot.” The general rule is that settlement of a plaintiff ’s claims moots an action. See Lake Coal Co. v. Roberts & Schaef er Co. , 474 U.S. 120, 106 S. Ct. 553, 554, 88 L.Ed.2d 418 (198 5); Hammond Clock Co. v. Schiff , 293 U.S. 529, 530, 55 S. Ct. 146, 79 L.Ed. 639 (1934). In the Rule 23 class action context, however, unique mootness principles may apply – when the name d plaintiff seeks to have a class certi fied, the cl ass ce rtifi catio n is d enied , and h is per sona l clai ms subsequently beco

me moot – to permit the nam ed plaintiff to appea

l the denial of class certification

. See, e.g. , United States Par ole Comm’ n v. Geraghty , 445 U.S. 388, 100 S. Ct. 1202,

63 L.Ed.2d 479 (19 80); Deposit Guar. Nat’l Bank v. Roper , 445 U.S. 326, 100 S . Ct. 1166, 63 L. Ed.2d 427 (1980); Love v. Turlington , 733 F.2d 1562 (11th Cir. 1984). In this case , we consider wh ether the mootne ss principles in the Rule

23 class action conte

xt apply to collec

tive actions brought under § 216(b) of th e FLSA. A. Mootness/Personal S take and Rule 23 Clas s Actions As required by Article III of the Constitution the exercise of judicial power by federal courts “depends upon the existence of a case or controversy.” North Carolina v. Rice , 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L.Ed.2d 4 13 (1971)8

(internal quotation m

arks omitted); 31 Foster Children v.Bush , 329 F.3d 1255, 1263 (11th Cir. 200 3), petition for cert. filed , 72 U.S.L.W . 3171 (U.S. Se

p. 2, 2003) (No. 03-351).

“A case is m

oot when it no longer pr

esents a live controv

ersy with respect to which the court can give meaningful relief.” 31 Foster Children , 329 F.3d at 1263 (internal quotation marks and citation omitted). More specifically, a case becomes moot “ when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack , 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L.Ed.2d

491 (1969); 31 Foster Children , 329 F.3d at 1263. The “legally cognizable interest” or “personal stake” requirem ent derives from Articl

e III’s case o

r controversy l

imitation, wh

ich restricts the j urisdiction of federal courts “to disputes capable of judicial resolution.” Geraghty , 445 U.S. at 396, 100 S. Ct. at 1208. “The ‘personal stake’ aspect of m ootness doctrine [] serves primar

ily the purpose of

assuring that feder

al courts are pres ented with disputes they are capable of resolving.” Id. at 397, 100 S. Ct. at 120 9. In two cases decided on the same day, United States Par ole Commis sion v. Geraghty , 445 U.S. 388, 100 S. Ct. 1202, 63 L .Ed.2d 479 (1980), and Deposit Guaranty National Bank v. Roper , 445 U.S. 326, 100 S. Ct. 1166, 63 L .Ed.2d 427 (1980), the United States Supreme Court discussed whether the named plaintiff,3 As stated in Geraghty , the plaintiff “was mandatorily released from prison; he had served 22 months of his sentence, and had earned good-time credits for the rest.” Geraghty , 445 U.S. at 394. 9 whose personal claims became moot after the denial of cla ss certification under Rule 23, had a perso

nal stake in appealin

g that denial. In Geraghty , the plaintiff priso ner ch allen ged th e paro le rel ease g uide lines , but h is su bstan tive c laims became m

oot because he was r

eleased from

prison. 3 In Roper , the plaintiffs challenged the usurio

us interest rates of

the defendant bank,

which tendered to plaintiffs the m

aximum am

ounts, including inter

est and costs, that could be recovered. Although the Roper plaintiffs refused the tender, the district court entered judgment for the defendant bank over plaintiffs’ objection, which mooted their substantive cla

ims. In Geraghty , the Supreme Court concluded that the named plaint iff in a Rule 23 class action m

ay have a “

personal stake” in th

e class certific ation claim in on e of two ways. See Geraghty , 445 U.S. at 402, 100 S. Ct. at 1212. First, the named plaintiff may

retain, in som

e cases, a “

legally cogniza

ble interest” in the “traditional sense.” See id. (citing Powell v. McCormack , 395 U.S. 486, 496, 89 S. Ct. 1944, 1951,

23 L.Ed.2d 491 (19 69)). For exam ple, the name

d plaintiff who retains an “ec

onomic interest

” in the class cert

ification question co

ntinues to have a personal stake in t he action. See Roper , 445 U.S. at 336-37, 100 S . Ct. at 1173.10

In Roper , the Supreme

Court recognized th

at an economic interest could includ e the named plaint

iff’s continuing in

dividual interest in sh

ifting the costs of litigation to th e entire class. Id

. In this case, plain

tiff Basil does not a

rgue that he has an “

economic inter

est” in appealing the distr

ict court’s order

. Here, the pa

rties agreed to a se

ttlement of some of Basil’ s claims and the dismissal of his o

ther claims. Thus, in light of the parties’ settlement agreement, Basil has no costs or attorneys’ fees that he can shift to other members of the putati ve class. See id

. Having no econom

ic interest in this ap

peal or any othe

r legally cogniz

able interest in the “traditional sense,” plaintiff Basil’s only recourse is to argue that as a named plaintiff in a § 216(b) colle ctive action, he ha

s a “personal st

ake” in the second manner i

dentified by the Supreme Court in Geraghty

– i.e., that the named plaintiff may continue to have a personal stake in the class certification claim that derives from the unique nature of the Rule 23 class action mechanism, as discussed infra

. In discussing how the na

med plaintiff m

ight have a personal s

take in the class certificat

ion claim, the

Supreme Cour

t in Geraghty

and Roper

first examined the purposes underly

ing the creation of R

ule 23. In Roper , the Supreme Court explained that the “

aggregation of individ

ual claims in the

context of a classw

ide11

suit [under Rule 23] is an evolutionary response to the existence of injuries unremedied by the regulatory action of government.” Roper , 445 U.S. at 339 , 100 S. Ct. at 1174. The Roper Court stated that “ [w]here it is no t economically feasible to obtain r

elief within the tr

aditional fram

ework of a mul

tiplicity of sm

all individual suits for da

mages, aggrie

ved persons may

be without any effective redress unless they may employ the class-action device.” Id . In Geraghty , the Supreme Court added that the Rule 23 class action me chanism was de

veloped to accommoda

te varying ty

pes of interests, i

ncluding “the pro

tection of the defe

ndant from inconsiste

nt obligations, the pr

otection of the inter

ests of absentees,

the provision of a convenie

nt and economica

l means for disp osing of similar lawsuits, and the facilitatio

n of the spreading of l

itigation costs am

ong numerous litiga

nts with similar claims.” Geraghty , 445 U.S. at 402-403, 100 S. Ct. at 1212. To achieve the primary benefits of class suits, as stated above, the Geraghty Court stated that “

the Federal Rules

of Civil Procedure

give the proposed cla

ss representative the right to have a class certified if the requirements of the Rules are met.” Id. at 403, 100 S. Ct. at 121 2. In essence, the named plaintiff who seeks to represent a cla

ss under Rule 23 acts i

n a role that is “

analogous to the privat

e attorney general.” See id. ; Roper , 445 U.S. at 338, 100 S. Ct. at 1174 (stating that class actions repr

esent an “incr

easing reliance on t

he ‘private attor

ney general’ for12

the vindication o f legal rights”). Thus, the Geraghty

Court stated that, in the Rule 23 context, the named plaintiff “pre sents two separate issues for judicia

l resolution. One i s the claim on the merits; the other is the clai m that he is entit

led to represent a c

lass .” Geraghty , 445 U.S. at 402, 100 S. Ct. at 1211 ( emphasis added) ; Love , 733 F.2d at 1565. 1984). In other wor

ds, the named pl

aintiff has a “

procedural . . .right to represent a class” that is inde pendent of his sub stantive claims. Geraghty , 445 U.S. at 402 , 100 S. Ct. at 1212. The denial of a motion to certify a class under Rule 23 is “ an example of a pr

ocedural ruling, collateral to the m erits of a litigation

, that is appealable after the entry of final judgment.” Roper , 445 U.S. at 336, 100 S. Ct. at 1173. The Geraghty

Court noted, howev

er, that a legall

y cognizable inte

rest “in the traditional sense rarely ever exists with respect to the class certification claim.” Geraghty , 445 U.S. at 402 , 100 S. Ct. at 121 2. To ensure that t he procedural right is appealable (and to effectuate the purposes of class action suits under Rule 23), the Geraghty

Court stated that the named plaintiff nevertheless has a personal stake in the class ce

rtification claim

so long as “[t] he imperative s of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and [there a

re] self-inter

ested parties vigoro

usly advocating opp osing4 See Martinez-Mendoza v. Champion Int. Corp , 340 F.3d 1200, 1215-16 (11th Cir. 2003)

(stating that “a

plaintiff’s capa

city to act a

s representativ

e of the class is no

t ipso facto terminated when he loses his case on the merits. See Satterwhite v. City of Greenville , 634 F.2d 231 (5th Cir. Jan. 1981 ) (en banc); Armour v. City of Anniston , 654 F.2d 382 (5th C ir. Unit B Aug. 1981) (per

curiam); see also Armstrong v. Martin Marietta Corp , 138 F.3d 1374, 1383 n.16 (11th Cir. 1998) (en banc) (noting that in some cases the named plaintiff may a ppeal a denial of class certification even if she ceases individually to have a controve rsy with the defendant)”). 13 positions.” Id. at 403, 100 S. Ct. at 121 2. In Geraghty , the Supreme Court explicitly left open the question “whether a named plaintiff who settles the indivi dual claim

after denial of c

lass certificatio

n” has a personal stake to appeal the denial of class certificatio n. 445 U.S. at 404 n.10, 100 S. Ct. at 1212 (emphasis added). Since Geraghty , however, this Court has concluded that the

rule in Geraghty

also applies when the named plaintiff settles his claims. Love , 733 F.2d at 1565 (st ating that there wa

s “no meani

ngful distinction between the settlement of the claim he

re at issue and the e

xpiration of the claim in Geraghty

for purposes of the a

bility of the nam

ed plaintiff to pursue an appeal of the denial of certification”). 4 B. Collective Actions Under FLSA § 216(b) The pertinent quest

ion in this case, the

n, is whether the n

amed plaintiff

in a § 216(b) action under the FLSA has the right to represent ot her plaintiffs – tha

t is, whether the named plaintiff has a procedural right analogous to the right provided for by Rule 23 in which th e plaintiff can have a p ersonal stake.5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) ( en banc ), we

adopted as binding

precedent the d

ecisions of the fo

rmer Fifth Circu

it handed down prio

r to October 1, 1981. 14 In analyzing this ques tion, we begin by looki ng to the purposes of § 216(b). Section 216(b) of the

FLSA provides,

in pertinent part,

that: An action to recover t

he liability

prescribed in eithe

r of the preceding sentences may be maint ained a gainst any e mpl oyer (including a public agency) in any Federal or State court of c ompetent juri sdiction by

any one or more

employees for and in behalf of him

self or themse

lves and o ther em

ployees sim

ilarly situated. No employe

e shall be a party

plaintiff to any such act ion unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought

. 29 U.S.C. § 216(

b) (emphasis a

dded). The provisi

ons of § 216(b) are de

rived in substantial part fr

om the Portal to

Portal Act of 1947,

pt. IV, § 5, 61 S

tat. 84, 87, 88 (1947). See United Food & Commercial Workers Union v. Albertson’ s, Inc. , 207 F.3d 1193, 1200 (10t h Cir. 2000); see also LaChapelle v. Owens-Illinois, Inc. , 513 F.2d 286, 287 n.6 (5th Cir. 1975). 5 In 1947, Congress ena

cted the Portal to Portal Act “in response to a ‘national emergency’ created by a flood of suits under the FLSA aimed at collecting portal-to-portal pay allegedly due employees.” Arrington v. Nat’l Broad. Co. , 531 F. Supp. 498, 500 (D.D.C.1 982); see also Albertson ’s , 207 F.3d at 1200-01 (noting that Arrington ’s interpretati on of Congress’s int

ent in enacting the Portal-to-Por

tal Act has been em

braced by alm

ost all courts confr

onting the15

issue in published opinions). Congress amended the FLSA to limit the parties who could bring su it under that statu te. See State of Nevada E mployees’ Ass’n v. Bryan , 916 F.2 d 1384 , 1391 ( 9th Cir . 1990) (citin g 61 Sta t. 87). S pecifi cally, § 216(b) was am

ended to provide that “

standing to pursue an ac

tion for liability

is statutorily limited to employees only. ” Albertson ’s , 207 F.3d at 1200. By identifying “employees” as the only proper parties in a § 216(b) action, the Portal to Portal Act aim

ed to ban representa

tive actions that pre

viously had been br

ought by unions on behalf o f employees. Id. (stating that the ban was aimed “‘at a fear that unions, as repr

esentatives, wer

e concretely b enefitting from participation in the FLSA suits’ ”) (quoting Arrington , 531 F. Supp. at 502 n.8 ). While employees still may sue on behalf of other employees under § 216(b), the 1947 amendm

ents did restrict the

ir rights in one im

portant respect. The 1947 amendments added an “opt-in” provision, which provides that “[n] o employee shall be a party

plaintiff to any

such action unless he g

ives his consent in wr

iting to become such a

party and such consent is filed in the court in which such ac tion is brought.” 29 U.S .C. § 216(b); see also LaChapelle , 513 F.2d at 287 & n.6. Congress’s aim in adding the “opt-in” language to § 216(b) was to “‘prevent[] large group actions,

with their vast all

egations of liability

, from being br

ought on behalf of empl

oyees who had no r

eal involvement

in, or knowledge of

, the16

lawsuit.’” Albertson ’s , 207 F.3d at 1200 (quo ting Arrington , 531 F. Supp. at 501). “The ‘cons ent in writing’ r equirement . . . [sought] to e radicate the proble

m of totally uni nvolved e mployees gain ing recove ry as a result of some third party’s action in filing suit.” Arrington , 531 F. Supp. at 5 02. Thus, the 1947 a mendments to the FLSA prohibit what precisely is advanced under Ru

le 23 – a representa

tive plaintiff filing an a

ction that potentially

may gener

ate liability in favor of uninvolved clas s members. This distinction betw

een § 216(b) collect

ive actions and Rule 2 3 class actions is further re flected by the manner in which th e two actions are struct ured. In a Rule 23 proceedin g, the named plaintiff des cribes the class. LaChapelle , 513 F.2d at 288. If the

district court dete

rmines that the

described class m

eets the requirements of subdivision (a) and either subdivision (b) (1), (b)(2), or (b)(3) of Rule 23, the class comes into being an d “each person within the descripti on is considered to be a class member.” Id . The existence o f a class under Rule 23, therefore, does not d epend in theory on the p articipation of ot her class members. Irrespective of whether other class members take any or no role in the action, they are bound by the judgment, whether favorable or unfavorable, unless they6 “More correctly, class members may opt out only when the action is maintainable under subdivision (b)(3) of Rule 23. When either subdivision (b)(1) or (b)(2) applies, the rule does not allow a class member to avoid the effect of judgment by disassociating himself from the suit.” LaChapelle, 513 F.2d at 288 n.7; Fed. R. Civ. P. 23. 17 affirmative

ly “opt out” o f the suit. 6 Thus, the structur e of Rule 23 reflec

ts that the named plaintiff

has a claim tha

t “he is entitled to represe nt a class .” See Geraghty , 445 U.S. at 402, 100 S. Ct. at 1 211 (emphasis added). In light of the history

underlying the am

endments to the F

LSA, it is not surprising that § 216(b)

is a fundamenta

lly different creature than the Rule 23 class action. Even if the § 216(b) plaintiff can demonstrate that there are other plaintiffs “similarly situated ” to him, see 29 U.S.C. § 216( b), he has no right to represent them . Under § 216(b), the action does not bec

ome a “col

lective” action unless other plaintiffs affirmatively opt into the class by giving written and filed

consent. See LaChapelle , 513 F.2d at 288. U ntil such consent is give

n, “no person will be bound by or may benefit from j udgment.” Id . Thus, in contra st to Rule 23 class actions, the existence of a collective action under § 216(b) does depend on the active participation of other plaintiffs. In other words, under § 216(b), the nam

ed plaintiff does not h

ave the right to act i

n a role analogous to the private attorne y general concept. Considering the "funda

mental, irr

econcilable diffe

rence" between § 216(b)7 Because Basil has no personal stake in this appeal, we need not consider whether the

controversy is “live.” See Powell , 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). 18 and Rule 23, see LaChapelle , 513 F.2d at 288, w e conclude that a § 216 (b) plaintiff, like Ba

sil, presents only

a claim on the m

erits. In contras

t to the Rule 23 plaintiff, a § 216(b) plaintiff has no claim that he is entitled to represent other plaintiffs. 7 Accordingly,

because Plaintiff

Basil has no rem

aining personal clai

ms, this action is moot. III. CONCLUSION For the reasons state d above, we dismiss this ap peal as moot. APPEAL DISMISSED.