PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 15-3089

_____________

STEVEN HALLE, 

on behalf of himself and all others similarly situated

v.

WEST PENN ALLEGHENY HEALTH SYSTEM INC; 

WESTERN PENNSYLVANIA 

HEALTHCARE SYSTEM INC; ALLE KISKI MEDICAL 

CENTER; ALLEGHENY GENERAL 

HOSPITAL; ALLEGHENY GENERAL HOSPITAL 

SUBURBAN CAMPUS; WESTERN 

PENNSYLVANIA HOSPITAL; WESTERN 

PENNSYLVANIA HOSPITAL FORBES 

REGIONAL CAMPUS; ALLEGHENY MEDICAL 

PRACTICE NETWORK; ALLEGHENY 

SPECIALTY PRACTICE NETWORK; WEST PENN 

PHYSICIAN PRACTICE NETWORK;

ALLEGHENY SINGER RESEARCH INSTITUTE; 

HIGHMARK INC; ALLEGHENY HEALTH 

NETWORK; JOHN W. PAUL; BART METZGER; 

CHRISTOPHER T. OLIVIA; JOHN LASKY; 

CANONSBURG GENERAL HOSPITAL
2

 SENORA TARPLEY; KATIEJO BIGENHO; WAYNE 

HABER, 

 on their own behalf and on behalf of all 

other opt-in plaintiffs,

 Appellants 

______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-13-cv-01449

District Judge: The Honorable Cathy Bissoon

______________

Argued September 28, 2016

Before: AMBRO, SMITH,* and FISHER, Circuit Judges

(Filed: November 18, 2016) 

David S. Fryman (Argued)

Elizabeth K. McManus

Ballard Spahr

1735 Market Street

51st Floor

Philadelphia, PA 19103

Counsel for Appellee

 * Honorable D. Brooks Smith, United States Circuit Judge for 

the Third Circuit, assumed Chief Judge status on October 1, 

2016.
3

Jonathan W. Ferris

J. Nelson Thomas (Argued)

Thomas & Solomon

693 East Avenue

Rochester, NY 14607

Counsel for Appellant

 

_____________________

 OPINION

_____________________ 

 

SMITH, Chief Judge.

Appellants are three hospital employees who claim 

they were not properly compensated for work performed 

during meal breaks. They seek review of a District Court’s 

decision that declined to permit a civil case in which they 

wished to participate to continue as a collective action under 

the Fair Labor Standards Act (“FLSA”) § 16(b), 29 U.S.C. 

§ 216(b). 

This is the second decertification-related appeal in a 

series of four similar FLSA cases filed in the Western District 

of Pennsylvania. We dismissed the first appeal, which 

consolidated two of the District Court proceedings, for lack of 

appellate jurisdiction and mootness. Camesi v. University of 

Pittsburgh Med. Ctr., 729 F.3d 239 (3d Cir. 2013). 

Appellants in the current appeal candidly acknowledge that 

they are before us in an effort to correct the procedural flaws 

that prevented us from reaching the merits of the 
4

decertification decision in the first appeal. Despite their 

efforts, Appellants fare no better this time around. We will 

dismiss this appeal.

I.

A.

The first round of litigation began in 2009 when two 

groups of plaintiffs filed separate but similar complaints 

against two large Western Pennsylvania hospitals and their 

affiliated health care facilities and centers: Camesi v. 

University of Pittsburgh Medical Center, No. 3:09-cv-00085 

(W.D. Pa.), and Kuznyetsov v. West Penn Allegheny Health 

System, Inc., No. 2:09-cv-00379 (W.D. Pa.) (later 

consolidated into No. 2:10-cv-00948 (W.D. Pa.)). The 

complaints alleged that the hospital defendants violated the 

FLSA by failing to properly pay their employees for work 

performed during scheduled meal breaks. The named 

plaintiffs purported to bring the claims as collective actions 

on behalf of themselves and all other similarly situated 

employees pursuant to FLSA § 16(b), 29 U.S.C. § 216(b).1

 1 The complaints also raised class action claims pursuant to 

Rule 23 of the Federal Rules of Civil Procedure, and claims 

under the Employee Retirement Income Security Act of 1974 

(“ERISA”), 29 U.S.C. § 1132, and the Racketeer Influenced 

and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964. 

The ERISA and RICO claims were dismissed with prejudice. 

No Rule 23 class was certified, nor were those dismissals 

challenged in the earlier appeal.
5

District Judge Cathy Bissoon conditionally certified 

the collective action in Camesi on May 14, 2009, and District 

Judge Donetta Ambrose conditionally certified the collective 

action in Kuznyetsov on June 1, 2009. Both judges approved 

detailed notices to be sent to potential collective action 

members. Among other things, the notices advised that, by 

consenting to opt in to the suit, an employee would “[j]oin in 

this lawsuit,” “[a]wait the outcome,” and “[g]ive up the right 

to sue separately.” The notices further provided that “[o]nce 

people have had the chance to opt in, the Court will decide 

whether people who have opted in may participate in this 

collective action. Only people ‘similarly situated’ to the 

plaintiffs may participate in this collective action.”

A consent form accompanied the court-approved 

notices in Camesi and Kuznyetsov. The consent form 

indicated, among other things, that “[u]nless I opt to retain 

separate counsel of my own choice and at my own expense, I 

hereby . . . authorize the named plaintiffs to make decisions 

on my behalf concerning the litigation, the method and 

manner of conducting this litigation, and all other matters 

pertaining to this lawsuit, including any settlement. . . . .” 

Using those forms, more than 3,000 individuals consented to 

opt in to the Camesi collective action and more than 800 

consented to opt in to the Kuznyetzov collective action.2

 2 Among the many Kuznyetsov opt-in plaintiff consent forms 

are those of individuals who will soon re-appear as 

participants in the next round of district court litigation, see 

infra, including Steven Halle, Wayne Haber, and KatieJo 

Bigenho. It appears Senora Tarpley is the sole participant in 
6

The parties conducted collective action related 

discovery for nearly two years, including expert discovery 

and fact discovery of the named plaintiffs and a sample of the 

collective action members. The District Judges then 

entertained cross-motions by the plaintiffs to certify the 

collective actions and by the defendants to decertify the 

collective actions. 

Both judges decertified the collective actions. In her 

opinion decertifying Kuznyetsov, Judge Ambrose described 

the basic factual allegations of the claim as follows:

Defendants require Plaintiffs to take daily, 

uncompensated meal breaks. To accomplish 

this, Defendants adopted a computerized 

timekeeping system, called Kronos, that 

automatically deducts a thirty minute meal 

period from nonexempt employees’ time 

records when an employee has worked a shift of 

more than five or six hours. If an employee is 

unable to take an uninterrupted thirty minute 

meal break, the entire thirty minute automatic 

deduction may be canceled so that the employee 

is paid for the entire meal break. The manner in 

which the deduction is cancelled, however, 

varied by location, department, shift, and 

supervisor.

 

the current appeal who did not consent to opt in to 

Kuznyetsov.
7

Kuznyetsov, No. 2:10-cv-00948, 2011 WL 6372852, at *1 

(W.D. Pa. Dec. 20, 2011). Judge Ambrose then concluded 

that the plaintiffs’ job duties varied significantly from one 

individual to the next, and that those job duties were “highly 

relevant in terms of how, why and whether the employees 

were compensated properly for missed or interrupted meal 

breaks.” Id. at *5. In addition, more than 300 different 

individuals supervised the plaintiffs, the supervisors had 

individual authority to implement policies as to the meal 

deduction, and the supervisors’ practices varied in this regard. 

Id. Finally, Judge Ambrose agreed with the defendants’ 

argument that they would need to present individualized 

defenses to establish whether the FLSA was violated as to 

each plaintiff, which “could not be generalized among the 

824 plaintiffs.” Id. at *6. Judge Bissoon reached similar 

conclusions in Camesi. See Camesi v. Univ. of Pittsburgh 

Med. Ctr., No. 09-85J, 2011 WL 6372873 (W.D. Pa. Dec. 20, 

2011).

Thus, both judges concluded that the opt-in plaintiffs 

were not “similarly situated” to the named plaintiffs. When 

they decertified the two collective actions, the judges also 

dismissed the claims of all opt-in plaintiffs without prejudice 

to re-filing individual actions. 

B.

In an express effort to seek immediate appellate review 

of the decertification orders, the named plaintiffs in both 

Camesi and Kuznyetsov moved to voluntarily dismiss their 

claims with prejudice pursuant to Rule 41(a) of the Federal 

Rules of Civil Procedure. The two district judges granted the 
8

motions and the named plaintiffs promptly filed notices of 

appeal. This court consolidated the two appeals. In Camesi 

v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239 (3d Cir. 2013), 

we dismissed the appeals for lack of jurisdiction.

First, we determined that a decertification order, like a 

class certification order in the Rule 23 context, is an 

interlocutory order that is not appealable under 28 U.S.C. 

§ 1291. Id. at 245. Then, relying on our class action decision 

in Sullivan v. Pac. Indem. Co., 566 F.2d 444 (3d Cir. 1977), 

which we found to be controlling, we determined that the 

named plaintiffs in Camesi and Kuznyetsov improperly had 

attempted to short-circuit the procedure for appealing an 

interlocutory order that is separate from, and unrelated to, the 

merits of their case. Camesi, 729 F.3d at 245. We explained 

that the named plaintiffs could have obtained appellate review 

of the decertification decision by proceeding to a final 

judgment on the merits of their individual claims or, in the 

alternative, by seeking permission to certify an interlocutory 

appeal under 28 U.S.C. § 1292(b). Instead, plaintiffs 

attempted to manufacture finality through a voluntary 

dismissal of their cases. We rejected this “procedural sleightof-hand.” Id.

We further determined that, by voluntarily dismissing 

their claims with prejudice, the named plaintiffs mooted their 

claims in Camesi and Kuznyetsov. Id. at 247. In doing so, the 

named plaintiffs extinguished any residual representational 

interest they may once have had in bringing claims on behalf 

of individuals who had filed consents to opt in to the 

collective action. Id. We did not then address the more 

difficult question of whether, when individuals have opted in 
9

to a collective action following conditional certification, a 

plaintiff who has filed the collective action may retain a 

justiciable interest in the litigation based only upon his or her 

representative capacity. Instead, we concluded that, in the 

specific circumstance of a voluntary dismissal, “it would be 

anomalous to conclude that [the Camesi/Kuznyetsov]

Appellants are ‘similarly situated’ to opt-in plaintiffs who, 

unlike Appellants, have actually retained their individual 

claims. Without any personal stake in the matter, [the 

Camesi/Kuznyetsov] Appellants should not be permitted to 

represent opt-in plaintiffs.” Id.

We therefore dismissed Camesi for lack of appellate 

jurisdiction.
10

C.

Soon after we issued our Camesi opinion, the next 

round of district court litigation began. The same law firm 

that represented the Camesi/Kuznyetsov plaintiffs filed two 

new FLSA collective action complaints on behalf of two new 

sets of named plaintiffs against the same hospital defendants, 

raising substantially the same FLSA claims concerning work 

during unpaid meal breaks. The new complaints proposed 

slightly different definitions of the collective actions than had 

been proposed in Camesi and Kuznyetsov. The follow-up to 

Camesi was Belle v. Univ. of Pittsburgh Med. Ctr., No. 2:13-

cv-01448 (W.D. Pa.), while the follow-up to Kuznyetsov was 

Halle v. West Penn Allegheny Health Sys., No. 2:13-cv-01449 

(W.D. Pa.). Both cases were assigned to Judge Bissoon, who 

had presided over Camesi. 

In Belle, before the named plaintiffs filed a motion to 

conditionally certify a collective action, more than 900 

individuals filed consents to opt in. The defendants moved to 

dismiss the collective action allegations on grounds of issue 

preclusion, arguing that the issue of certification of the 

collective action had been fully litigated in Camesi and 

should not be relitigated in Belle. 

Judge Bissoon agreed. By order dated September 29, 

2014, she concluded that, despite minor “tweak[s],” Belle was 

a “redux” of Camesi in which the “theories of liability 

remain[ed] materially unchanged.” Belle, No. 2:13-cv-01448, 

2014 WL 4828899 at *1 (W.D. Pa. Sept. 29, 2014). She 

therefore queried whether it would be proper to allow the 

Camesi opt-ins to re-litigate the unfavorable decertification 
11

ruling in Camesi through a new lawsuit. She concluded, 

invoking the doctrine of issue preclusion, that “[t]he answer 

to this question is, resoundingly, ‘no.’” Id. 

Specifically, Judge Bissoon determined that issue 

preclusion applied because decertification already had been 

litigated in Camesi, the decision in Camesi was sufficiently 

final for purposes of issue preclusion, and all the named 

plaintiffs in Belle had opted in to Camesi and thus had a full 

and fair opportunity to litigate the issue.3

 Accordingly, she 

granted the defendants’ motion to dismiss, struck the 

collective action allegations from the complaint, and 

dismissed the claims of the opt-in plaintiffs without prejudice 

to re-filing individual complaints. The named Belle plaintiffs 

subsequently accepted offers of judgment under Rule 68 of 

the Federal Rules of Civil Procedure. No appeal followed.

As in Belle, numerous individuals (more than 250) 

filed consents to opt in to Halle before Judge Bissoon had an 

opportunity to address whether a collective action should be 

conditionally certified. Also as in Belle, the defendants filed 

a motion to dismiss the collective action allegations on the 

ground of issue preclusion. On November 6, 2014, Judge 

Bissoon granted the motion, incorporating by reference her 

opinion on issue preclusion in Belle. See Halle v. W. Penn 

 3 Judge Bissoon also observed that, although a “scant 

number” of Belle opt-ins had not participated in Camesi (less 

than 5% of them), principles of privity would extend the issue 

preclusion bar to those in Belle who had not opted in to 

Camesi.
12

Allegheny Health Sys. Inc., No. 2:13-cv-1449-CB (W.D. Pa. 

filed Nov. 6, 2014).4

 

On July 27, 2015, the sole named plaintiff in Halle, 

Steven Halle, accepted an offer of judgment from West Penn 

under Rule 68 of the Federal Rules of Civil Procedure in the 

amount of $2,392.00 for back pay and liquidated damages. 

Consistent with the terms of Halle’s acceptance, Judge 

Bissoon entered judgment against West Penn, dismissed 

Halle’s claims against the remaining defendants with 

prejudice, and administratively closed the case. 

Then, three of the Halle opt-in plaintiffs – Senora 

Tarpley, KatieJo Bigenho, and Wayne Haber – filed this 

appeal. Steven Halle did not appeal and is not participating in 

this appeal.

II.

Before turning to the matter before us, we consider a 

fundamental question arising from the procedural history of 

this case: just what is a “collective action”5 under the FLSA? 

 4 Judge Bissoon observed that the “overlap” between 

Kuznyetsov and Halle was less than in Camesi/Belle (just less 

than 81%, as opposed to slightly more than 95%), but 

concluded “this distinction does not modify the Court’s 

analyses and conclusions.” Halle v. W. Penn Allegheny 

Health Sys. Inc., No. 2:13-cv-1449-CB, slip op. at 1 n.1 

(W.D. Pa. filed Nov. 6, 2014).
13

To answer this question, we first look to the relevant 

portion of the FLSA, which provides that an action may be 

brought “by any one or more employees for and in behalf of 

himself or themselves and other employees similarly situated” 

and that “[n]o employee shall be a party plaintiff to any such 

action 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). This language raises 

more questions than it provides answers. While the first 

sentence sounds in representational terms (to proceed “in 

behalf of” others “similarly situated”), the second sentence 

refers to those who file consents as “party plaintiffs,” seeming 

to imply that all who affirmatively choose to become 

participants have an equal, individual stake in the proceeding. 

Congress has not acted to shed light on any of these 

provisions. Since the statute was enacted in its current form 

in 1947,6 Congress has provided no framework setting forth 

how and when it is to be determined whether employees are 

“similarly situated,” the significance of “party plaintiff” 

status, or – most relevant to the parties here –who may appeal 

 5 Although the statute does not employ the phrase “collective 

action,” the term appears in the FLSA’s legislative history, 

see H.R. Rep. No. 80-326, at 13 (1947) (Conf. Rep.), and is 

accepted as the appropriate designation for the type of 

representative action described in FLSA § 216(b).

6 Further, Congress added the “opt-in” provision, setting forth 

that “no employee shall be a party plaintiff to any such action 

unless he gives his consent in writing. . . .” See H.R. Rep. 

No. 80-326, at 13 (1947) (Conf. Rep.).
14

a collective action determination and when that appeal may 

be taken. Nor have procedural rules been promulgated to 

guide courts and parties in processing collective actions. As a 

result, courts have been left to consider these matters when 

they arise, frequently borrowing or adapting procedures, 

concepts, and nomenclature from the Rule 23 class action 

context, while recognizing that there remain important 

differences between a Rule 23 class action and a collective 

action. Compare 7B Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 1807 (3d ed. 2016) 

(“[C]ollective actions behave in many ways like Rule 23 class 

actions . . . .”) with Genesis Healthcare Corp. v. Symczyk, 133 

S. Ct. 1523, 1529 (2013) (distinguishing class action cases 

because “Rule 23 class actions are fundamentally different 

from collective actions under the FLSA . . .” (citation 

omitted)); see also, e.g., Cameron-Grant v. Maxim 

Healthcare Svcs., Inc., 347 F.3d 1240, 1249 (11th Cir. 2003) 

(“[Section] 216(b) is a fundamentally different creature than 

the Rule 23 class action.”). Indeed, we have recognized an 

unfortunate side effect of the often blurred lines between the 

two types of proceedings: “expedient adoption of Rule 23 

terminology with no mooring in the statutory text of § 216(b) 

may have injected a measure of confusion into the wider body 

of FLSA jurisprudence.” Symczyk v. Genesis Healthcare 

Corp., 656 F.3d 189, 194 (3d Cir. 2011), rev’d on other 

grounds by 133 S. Ct. 1523. 

To focus, then, on what a collective action is and is 

not, we first observe the unremarkable fact that an FLSA 

collective action is a form of group litigation in which a 

named employee plaintiff or plaintiffs file a complaint “in 
15

behalf of” a group of other, initially unnamed employees who 

purport to be “similarly situated” to the named plaintiff. 

Thus, via § 216(b), the FLSA provides a vehicle for 

managing claims of multiple employees against a single 

employer. By permitting employees to proceed collectively, 

the FLSA provides employees the advantages of pooling 

resources and lowering individual costs so that those with 

relatively small claims may pursue relief where individual 

litigation might otherwise be cost-prohibitive. It also yields 

efficiencies for the judicial system through resolution in one 

proceeding of common issues arising from the same allegedly 

wrongful activity affecting numerous individuals. See

Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 

(1989); see also 1 Joseph M. McLaughlin, McLaughlin on 

Class Actions § 2:16 (12th ed. 2015) (“The purpose of a 

collective action under the FLSA is to allow plaintiffs to 

minimize individual expense in pursuing wage rights through 

pooled resources and to benefit the judicial system through 

unitary resolution of common legal and factual issues arising 

from the same conduct.”).

When a named plaintiff files a complaint containing 

FLSA collective action allegations, the mere presence of the 

allegations does not automatically give rise to the kind of 

aggregate litigation provided for in Rule 23. Rather, the 

existence of a collective action depends upon the affirmative 

participation of opt-in plaintiffs. See Smith v. T-Mobile USA, 

Inc., 570 F.3d 1119, 1121 (9th Cir. 2009); Morgan v. Family 

Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008). 

Courts are then called upon to decide whether those who 

purport to join the collective action are “similarly situated” as 
16

intended by the statute. Because there are no formal 

procedural rules that mandate how to accomplish this task, 

courts have developed a practical approach to managing 

FLSA collective actions. This approach, which has been 

recognized by the Supreme Court and is widely accepted in 

most jurisdictions, is a two-step certification process.7

 See 

Genesis Healthcare, 133 S. Ct. at 1530; Zavala v. Wal Mart 

Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012).

The first step, so-called conditional certification, 

requires a named plaintiff to make a “modest factual 

showing” – something beyond mere speculation – to 

demonstrate a factual nexus between the manner in which the 

employer’s alleged policy affected him or her and the manner 

in which it affected the proposed collective action members. 

Zavala, 691 F.3d at 536 n. 4. The “sole consequence” of 

conditional certification is the dissemination of courtapproved notice to potential collective action members. 

Genesis Healthcare, 133 S. Ct. at 1530. Conditional 

certification, therefore, is not a true certification, but rather an 

exercise of a district court’s discretionary authority to oversee 

 7 A minority of courts has rejected the two-step certification 

approach in favor of a more traditional Rule 23-style analysis, 

considering numerosity, commonality, typicality, and 

adequacy of representation. See 1 Joseph M. McLaughlin, 

McLaughlin on Class Actions § 2:16 & n.74 (13th ed. 2013). 

We rejected that approach in Zavala v. Wal Mart Stores Inc., 

691 F.3d 527, 536 (3d Cir. 2012).
17

and facilitate the notice process. Zavala, 691 F.3d at 536

(citing Hoffman-La Roche v. Sperling, 493 U.S. 165 (1989)8

).

While conditional certification is discretionary, the 

Supreme Court has recognized its importance. A district 

court’s early intervention in the preparation and distribution 

of notice to potential participants serves legitimate purposes, 

including avoidance of a multiplicity of duplicative suits and 

establishing cut-off dates to expedite disposition of the action. 

Hoffman-La Roche, 493 U.S. at 171-72. Nevertheless, 

“[w]hatever significance ‘conditional certification’ may have 

in § 216(b) proceedings, it is not tantamount to class 

certification under Rule 23.” Genesis Healthcare, 133 S. Ct. 

at 1532.

A denial at the conditional certification stage is not 

necessarily a final determination of whether the matter may 

proceed as a collective action. Some courts permit the issue 

to be revisited after discovery or efforts by the named 

plaintiff to re-define the contours of the proposed collective 

action. See, e.g., Bamgbose v. Delta-T Group, Inc., 724 F. 

Supp. 2d 510, 514 (E.D. Pa. 2010) (motion for conditional 

certification denied without prejudice, to be revisited after 

discovery for possibility of developing “subclasses’); see also

Wright & Miller, supra, § 1807 (“If conditional certification 

is denied, the court may allow discovery to provide plaintiffs 

 8 Although Hoffman-La Roche arose in the context of a 

proceeding under the Age Discrimination in Employment Act 

(“ADEA”), 29 U.S.C. § 621, the ADEA incorporates 

enforcement provisions of the FLSA, including the collective 

action provisions of 29 U.S.C. § 216(b).
18

a second opportunity to obtain sufficient evidence of a 

collective to warrant conditional certification and the notice 

to opt in.”).

Generally, after conditional certification has been 

granted (although not always, given the discretionary nature 

of the first stage), individuals file notices providing their 

written consent to participate in the collective action pursuant 

to § 216(b).9

 As in Kuznyetsov and Halle, the notices may 

indicate that the opt-in plaintiffs consent to having the named 

plaintiffs litigate, on their behalf, the FLSA claims. See, e.g., 

Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir. 

 9 Some courts refer to the process of opting in to a collective 

action as “joinder.” See Grayson v. K Mart Corp., 79 F.3d 

1086, 1096 (11th Cir. 1996) (Garth, J.) (referring to a 

certification of an ADEA collective action as “permitting optin joinder of ‘similarly situated’ plaintiffs”). But opt-in 

plaintiffs are held to a lesser standard than FLSA named 

plaintiffs or other plaintiffs who join in civil actions. For 

instance, ADEA opt-in plaintiffs do not need to exhaust 

administrative remedies, while ADEA named plaintiffs do. 

See Lusardi v. Lechner, 855 F.2d 1062, 1078 (3d Cir. 1988) 

(recognizing that “in other contexts the opt-in class action has 

been analogized to permissive joinder and intervention” but 

concluding that opt-ins in ADEA suit need not satisfy 

exhaustion requirements where named plaintiffs have done 

so). Moreover, opt-in plaintiffs are held to a less stringent 

standard than under Rule 20 of the Federal Rules of Civil 

Procedure. See Grayson, 79 F.3d at 1096-97.
19

2003) (“The consent given was for the named plaintiffs to 

represent the interests of the employee in adjudicating all 

claims that the employee had under the FLSA.”).

This “opt-in” requirement – mandating that each 

individual must file an affirmative consent to join the 

collective action – is the most conspicuous difference 

between the FLSA collective action device and a class action 

under Rule 23. See De Asencio v. Tyson Foods, Inc., 342 

F.3d 301, 306 (3d Cir. 2003). “This difference means that 

every plaintiff who opts in to a collective action has party 

status, whereas unnamed class members in Rule 23 class 

actions do not.” Wright & Miller, supra, § 1807; see also 

Prickett, 349 F.3d at 1297 (“[B]y referring to them as ‘party 

plaintiff[s],’ Congress indicated that opt-in plaintiffs should 

have the same status in relation to the claims of the lawsuit as 

the named plaintiffs.”). This prompts the as-yet unanswered 

question of what “party status” means in a collective action, 

particularly before a district court has considered whether 

those who have filed consent forms are in fact “similarly 

situated” to the named plaintiff for purposes of § 216(b).10

 10 Notably, § 216(b) is written in the negative, providing that 

“[n]o employee shall be a party plaintiff to any such action 

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.” Thus, the statute establishes that it is, at a 

minimum, necessary to file a written consent in order to 

become a party-plaintiff, but it is silent as to whether filing 

such a consent, without more, is sufficient to confer that 

status.
20

Also after a grant of conditional certification, the 

parties conduct certification-related discovery, as they did in 

Camesi and Kuznyetsov. Initial discovery may include efforts 

by the named plaintiffs to obtain employee contact 

information for purposes of notifying potential collective 

action members of the pending matter. Once opt-in consents 

have been filed, discovery typically moves forward to assess 

whether the opt-ins are “similarly situated” to the named 

plaintiffs. Frequently, this discovery focuses on the named 

plaintiffs and a subset of the collective group. In Camesi, for 

instance, the parties agreed to conduct discovery regarding 75 

current and former employees to be chosen by the defendants, 

including 10 depositions and the completion of written 

questionnaires. Camesi, No. 3:09-cv-00085, 2011 WL 

6372873 at *2 (W.D. Pa. Dec. 20, 2011). Similarly, in 

Kuznyetsov the parties conducted discovery as to “18 sample 

Plaintiffs.” Kuznyetsov, 2011 WL 6372852 at * 4. See also, 

e.g., Lusardi v. Xerox Corp., 975 F.2d 964, 967 (3d Cir. 

1992) (in ADEA collective action, parties randomly selected 

51 out of the 1,312 conditional collective action members for 

discovery to determine whether all opt-ins were similarly 

situated to the named plaintiffs). Upon conclusion of 

discovery, the parties will file motions seeking final 

certification or decertification of the collective action.

At this stage, known as final certification, the named 

plaintiffs bear the burden of showing that the opt-in plaintiffs 

are “similarly situated” to them for FLSA purposes. Zavala, 

691 F.3d at 537; see also Bouaphakeo v. Tyson Foods, Inc., 

765 F.3d 791, 801 (8th Cir. 2014) aff’d, 136 S. Ct. 1036 

(2016); O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 
21

584 (6th Cir. 2009), abrogated on other grounds by

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). 

“Being ‘similarly situated’ . . . means that one is subjected to 

some common employer practice that, if proved, would help 

demonstrate a violation of the FLSA.” Zavala, 691 F.3d at 

538.

Courts will consider a variety of factors in reaching 

this determination. “These include the factual and 

employment settings of the individual plaintiffs, the different 

defenses to which the plaintiffs may be subject on an 

individual basis, the degree of fairness and procedural impact 

of certifying the action as a collective action, and whether 

plaintiffs have made the appropriate filings with the EEOC.” 

Wright & Miller, supra, § 1807. Our Court endorses an ad 

hoc approach to this analysis, considering all relevant factors 

and making a determination on a case-by-case basis as to 

whether the named plaintiffs have satisfied this burden by a 

preponderance of the evidence. Zavala, 691 F.3d at 536-37.

If a collective action is decertified at the final stage, 

the matter will proceed as in Camesi and Kuznyetzov: the 

court will decertify the class, dismiss the opt-in plaintiffs 

without prejudice, and permit the named plaintiffs to proceed 

to trial.11 See Lusardi v. Lechner, 855 F.2d 1062, 1079 (3d 

 11 While a dismissed opt-in plaintiff retains the ability to 

pursue individual claims after a district court decertifies a 

collective action, we have located no authority (nor have the 

parties cited any) discussing the approach taken by Steven 

Halle in the underlying case here – namely, his decision, upon 

dismissal without prejudice from Kuznyetsov, to re-file not 
22

Cir. 1988) (“A district court has no power or jurisdiction to 

rule on the merits of the claims of individual [opt-in] 

members of a putative opt-in class when it denies 

certification.”); see also Wright & Miller, supra, § 1807. If, 

however, final certification is granted, “the action proceeds to 

trial on a representative basis.” Id. As previously discussed, 

a decision on certification of a collective action is 

interlocutory and therefore not immediately appealable 

pursuant to § 1291. Camesi, 729 F.3d at 245.

 

only his individual claims, but also to try to resurrect 

substantially similar collective action allegations.
23

III.

With this understanding of the FLSA collective action 

device, we turn to the appeal before us. The District Court 

exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have 

jurisdiction pursuant to 28 U.S.C. § 1291 to review “final 

decisions” of district courts. Giles v. Campbell, 698 F.3d 

153, 157 (3d Cir. 2012). A final decision is one that “ends 

the litigation on the merits and leaves nothing for the court to 

do but execute the judgment.” Quackenbush v. Allstate Ins. 

Co., 517 U.S. 706, 712 (1996) (quoting Catlin v. United 

States, 324 U.S. 229, 233 (1945)). Although the parties did 

not raise the issue, we must satisfy ourselves of our 

jurisdiction over this appeal.12 See Emp’rs Ins. of Wausau v. 

Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990).

In the end, Appellants, three opt-in plaintiffs, were 

dismissed without prejudice from Halle’s case and lost no 

substantive or procedural rights. Therefore, they have no 

final order from which to appeal. This conclusion is 

reinforced both by the language of their opt-in consent forms, 

which handed over all litigation authority to named plaintiff 

Steven Halle, and by the opt-in plaintiffs’ passive role in the 

suit. While it may seem unfair to require the opt-in plaintiffs 

either to litigate a case to conclusion or certify an 

interlocutory appeal, finality – not unsupported assertions 

about fairness – defines our court’s jurisdiction.

 12 Because the parties’ briefs give rise to doubts concerning 

our ability to exercise appellate jurisdiction, we directed the 

parties to file supplemental briefs on this issue.
24

A.

Appellants seek review of Judge Bissoon’s order dated 

November 6, 2014. That order had two important effects: it 

dismissed Steven Halle’s collective action allegations with 

prejudice on the ground of issue preclusion, and it also 

dismissed13 the claims of the opt-in plaintiffs without 

prejudice to re-filing individual actions. Neither of these 

aspects of Judge Bissoon’s order constitutes a final, 

appealable decision for purposes of 28 U.S.C. § 1291.

The dismissal of the opt-in plaintiffs’ claims without 

prejudice is not a final decision for purposes of § 1291. All 

opt-in plaintiffs may pursue their FLSA claims. “Typically a 

dismissal without prejudice is not a final decision because the 

plaintiff may refile the complaint, thereby creating the risk of 

‘piecemeal’ appellate litigation.” S.B. v. Kindercare Learning 

Ctrs., LLC, 815 F.3d 150, 152 (3d Cir. 2016); see also Borelli 

v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) 

(“Generally, an order which dismisses a complaint without 

prejudice is neither final nor appealable because the 

deficiency may be corrected by the plaintiff without affecting 

the cause of action.”). The November 6, 2014 order does not 

resolve any of the opt-in plaintiffs’ claims on the merits and 

acknowledges that those individuals remain free to file their 

own FLSA actions.

 13 Although the order states that the opt-in claims were 

“denied,” a denial implies a decision on the merits of the 

claim. Because Judge Bissoon did not reach the merits of the 

opt-in plaintiffs’ claims, for clarity we refer to the claims as 

dismissed.
25

In addition, the dismissal of Halle’s collective action 

allegations is not a final, appealable decision under § 1291. 

Although that decision arose in the context of a motion to 

dismiss rather than a motion to decertify, it results in a 

complaint that no longer alleges a collective action. Our 

decision in Camesi therefore controls: such an order is 

interlocutory and does not provide a basis for an immediate 

appeal under § 1291.14 Camesi, 729 F.3d at 245; see also, 

e.g., In re: Complaint of Ingram Barge Co., 517 F.3d 246, 

247 (5th Cir. 2008) (per curiam) (holding that the court did 

not have appellate jurisdiction under § 1291 or § 1292(a)(3) 

because the district court’s order striking class action 

allegations did not settle parties’ rights). Because the 

decertification is separate from, and unrelated to, the merits of 

Halle’s individual case, in the absence of a district court order 

under 28 U.S.C. § 1292(b) permitting an immediate appeal 

(which Halle did not request and which Judge Bissoon 

therefore did not grant), appellate review of this interlocutory 

decertification decision is available by proceeding to a final 

judgment on the merits of Halle’s individual claims. See 

Camesi, 729 F.3d at 245. 

 14 Similarly, in the context of class actions, prior to the 1998 

amendments to Rule 23(f) that today permit parties to pursue 

immediate review of certification decisions, decisions 

decertifying a class had to await review until the plaintiff 

obtained a final judgment in the case – even if proceeding as 

an individual rather than as part of a larger group might mean 

the “death knell” for the action. Coopers & Lybrand v. 

Livesay, 437 U.S. 463, 471 (1978).
26

Appellants concede that the November 6 order was not 

appealable when Judge Bissoon entered it, and they did not 

appeal at that time. Instead, they waited to appeal until after 

Steven Halle accepted West Penn’s offer of judgment in full 

satisfaction of his individual claims.

B.

On July 27, 2015, Judge Bissoon entered judgment 

consistent with Halle’s acceptance of West Penn’s offer of 

judgment, dismissed Halle’s remaining claims against the 

other defendants with prejudice, and administratively closed 

the case. This, Appellants argue, constitutes a final decision 

for purposes of § 1291, and, for appeal purposes, merges with 

all prior decisions in the case, including the November 6, 

2014, decertification decision. See In re: Westinghouse Sec. 

Litig., 90 F.3d 696, 706 (3d Cir. 1996) (“Under the ‘merger 

rule,’ prior interlocutory orders merge with the final judgment 

in a case, and the interlocutory orders (to the extent that they 

affect the final judgment) may be reviewed on appeal from 

the final order.” (citations omitted)).

West Penn argues that Halle’s acceptance of an offer 

of judgment operates like the voluntary dismissal in Camesi: 

it moots Halle’s personal claims and extinguishes his 

representational interest in proceeding on behalf of the opt-in 

plaintiffs. While this area of the law is “in a state of flux,” 

Camesi, 729 F.3d at 247,15 we need not reach that issue 

 15 Compare U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 

400 (1980) (holding that, in the Rule 23 class action context, 

named plaintiff may appeal a denial of class certification even 
27

because Halle did not file this appeal. Instead, in some 

procedural gymnastics apparently aimed at avoiding the 

mootness issue, three opt-in plaintiffs – Senora Tarpley, 

KatieJo Bigenho, and Wayne Haber – filed this appeal on 

behalf of themselves and “all other opt-in plaintiffs whose 

claims were dismissed.”

C.

We must, therefore, consider whether Appellants

retained a stake in Steven Halle’s ongoing individual case 

such that they are entitled to pursue an appeal as of right at its 

conclusion, after Halle’s individual claims have become 

 

if his or her individual claims had been satisfied through the 

entry of judgment), with Genesis Healthcare, 133 S. Ct. at 

1529 (distinguishing Geraghty to hold that, prior to any 

individuals opting in, mooting the named plaintiff’s claims 

moots the entire suit); Cameron-Grant, 347 F.3d at 1249 

(“[A] § 216(b) plaintiff . . . presents only a claim on the 

merits . . . [and] has no claim that he is entitled to represent 

other plaintiffs.”); Lusardi v. Xerox Corp., 975 F.2d at 974 

(comparing collective actions to class actions and observing 

that “[n]ormally, when claims of the named plaintiffs become 

moot before class certification, dismissal of the action is 

required”); Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1123 

(9th Cir. 2009) (“Because the plaintiffs voluntarily settled all 

of their claims after the district court’s denial of certification, 

they have failed to retain a personal stake in the litigation and 

their case is moot.”).
28

moot.16 We conclude that, for purposes of appeal, Appellants 

were no longer “parties” to the case after they were dismissed 

without prejudice from Halle’s proceeding. See Devlin v. 

Scardelletti, 536 U.S. 1, 7-8 (2002) (an appeal of a class 

action settlement by an unnamed class member does not raise 

concerns of standing, but rather “[w]hat is at issue, instead, is 

whether petitioner should be considered a ‘party’ for the 

purposes of appealing.”). Appellants therefore cannot pursue 

an appeal from Steven Halle’s individual judgment.

In Devlin, the Supreme Court concluded that an

unnamed member of a Rule 23 class action who was affected 

by, and had objected to, the settlement of a class action during 

a hearing pursuant to Rule 23(e) of the Federal Rules of Civil 

Procedure had the right, as a party to the action, to appeal the 

settlement without first filing a motion for leave to intervene. 

The Supreme Court held that “[w]hat is most important to this 

case is that nonnamed class members are parties to the 

 16 Appellants did not actively participate in the proceeding at 

any time prior to their notice of appeal. For example, when 

Steven Halle accepted judgment, Appellants did not move to 

intervene and substitute themselves as named plaintiffs in 

Steven Halle’s stead. Thus, we need not consider whether 

such efforts might have been sufficient to keep the case 

“alive” for purposes of appealing the dismissal of the 

collective action allegations. See, e.g., Lusardi, 975 F.2d at 

984-85 (discussing unsuccessful efforts of opt-in plaintiffs to 

intervene in decertified collective action after named 

plaintiffs’ claims were extinguished).
29

proceedings in the sense of being bound by the settlement.” 

Devlin, 536 U.S. at 10.

The opt-in plaintiffs here stand in contrast to the 

unnamed Rule 23 class member bound by a class action 

settlement as described in Devlin. The opt-in plaintiffs were 

dismissed without prejudice when the collective action 

allegations were struck from the complaint and are not bound 

by any aspect of the judgment that was ultimately entered in 

Steven Halle’s case. Consequently, they are not subject to a 

final decision disposing of their rights from which they may 

file an appeal under § 1291. See id. at 14 (“[N]o federal 

statute or procedural rule directly addresses the question of 

who may appeal from approval of class action settlements, 

while the right to appeal from an action that finally disposes 

of one’s rights has a statutory basis.” (citing 28 U.S.C. § 

1291)).

Even if, after Judge Bissoon dismissed the collective 

action allegations, Steven Halle retained some residual right 

to represent “similarly situated” employees, any such residual 

right does not extend to the opt-in plaintiffs. The opt-in 

plaintiffs retained their own substantive FLSA claims and 

remain free to file such claims and pursue final judgments on 

the merits. “While [a named plaintiff’s] settlement may have 

the collateral effect of foreclosing unjoined claimants from 

having their rights vindicated in respondent’s suit, such 

putative plaintiffs remain free to vindicate their rights in their 

own suits. They are no less able to have their claims settled 

or adjudicated following respondent’s suit than if her suit has 

never been filed at all.” Genesis Healthcare, 133 S. Ct. at 

1531.
30

When the opt-in plaintiffs were dismissed without 

prejudice, they did not suffer an adverse judgment on the 

merits of any claim. They lost nothing but the ability to 

proceed in Halle’s case. This does not give rise to a right to 

pursue an appeal from Halle’s individual final judgment. See 

McLaughlin v. Pernsley, 876 F2d 308, 313 (3d Cir. 1989) 

(where district court’s order does not affect a legally 

cognizable interest of appellant, appeal will be dismissed for 

lack of standing); In re: Glenn W. Turner Enter. Litig., 521 

F.2d 775, 781 (3d Cir. 1975) (“A party may appeal only if he 

is aggrieved by the judgment or the order of the district 

court.”).

Our understanding of the representative nature of 

FLSA collective actions is consistent with our conclusion that 

the opt-in plaintiffs cannot pursue this appeal. Steven Halle 

filed this proceeding, representing both himself and others 

“similarly situated.” Halle alone litigated in that 

representational role: after filing the complaint, he raised and 

responded to motions, participated in alternative dispute 

resolution, and actively engaged in the litigation process. The 

opt-in plaintiffs were mere passive observers until they were 

struck from the proceeding entirely.

When they opted to benefit from the efficiencies of 

participating in a collective action, these individuals agreed to 

set aside the individual authority to litigate, including the 

ability to appeal. Each of the opt-in plaintiffs’ consent forms 

stated, “I hereby . . . authorize and designate the named 

plaintiffs to act on my behalf concerning the litigation, this 

investigation, consideration of settlement and attorneys’ fees 

and costs, and all other matters pertaining to this lawsuit.” To 
31

the extent that the Appellants could have appealed – and we 

hold above that they could not – this language waived their 

right to do so. Cf. Prickett, 349 F.3d at 1297 (relying on “the 

language of the consent forms that the opt-in plaintiffs signed 

in this case” to determine which rights opt-in plaintiffs 

delegated to the named plaintiffs). By consenting to join 

Halle’s collective action, these opt-in plaintiffs ceded to Halle 

the ability to act on their behalf in all matters, including the 

ability to pursue this appeal.

D.

Appellants do not identify a single case in which a 

Court of Appeals has exercised jurisdiction over an appeal 

remotely similar to this one – in which a collective action optin plaintiff seeks appellate review of a decision striking 

collective action allegations from a complaint and where the 

named plaintiff’s claims are moot. Appellants are subject to a 

non-final order dismissing their claims without prejudice, and 

they offer no clear basis for the exercise of appellate 

jurisdiction. Rather, they advocate that, as a matter of 

fairness, this Court should exercise jurisdiction over this 

appeal.

Appellants contend it would be unfair to dismiss this 

appeal because it leaves the opt-in plaintiffs without an 

opportunity to obtain appellate review of Judge Bissoon’s 

decision to dismiss the collective allegations from Halle’s 

complaint now that West Penn has “picked off” Halle by 
32

offering him a Rule 68 judgment which mooted his claims.17 

It is true that we have observed the practical concern that the 

opt-in plaintiffs raise – namely, that offers of judgment, like 

the offer Halle accepted, are used by defendants to 

strategically “pick off” named plaintiffs prior to certification 

(or, here, appellate review of certification-related decisions), 

and may thereby result in the frustration of the collective 

action vehicle. See Symczyk, 656 F.3d at 197-98.

When the Supreme Court considered this argument, 

the potential for unfairness did not affect its determination 

that, where the named plaintiff’s Rule 68 judgment mooted 

her claims, the Court was deprived of jurisdiction. Genesis 

Healthcare, 133 S. Ct. at 1531. Similarly here, fairness 

considerations do not undermine our fundamental conclusion 

that the opt-in plaintiffs lack a final decision that we may 

review under § 1291.

And any perceived unfairness is tempered by the fact 

that, in Camesi, the panel set forth a path for pursuing review 

of FLSA collective action certification decisions. We here 

echo that point: to obtain appellate review of an order 

 17 During oral argument, Appellants attempted to argue for 

the first time that an inability to obtain merits review in this 

appeal would amount to a deprivation of their constitutional 

right to due process. “An appellant waives an argument in 

support of reversal if he does not raise that argument in his 

opening brief.” AT & T Inc. v. FCC, 582 F.3d 490, 495 (3d 

Cir. 2009) (citation omitted), rev’d on other grounds, 562 

U.S. 397 (2011). Because the constitutional claim was not 

presented in Appellants’ opening brief, it is waived.
33

decertifying a collective action, the plaintiff must either 

proceed to a final judgment on the merits of his or her 

individual claims or seek the District Court’s permission to 

pursue an immediate appeal. Camesi, 729 F.3d at 245. 

Appellants have pursued neither course. It should, therefore, 

be unsurprising that they face dismissal for lack of appellate 

jurisdiction.

IV.

For the foregoing reasons, we lack jurisdiction over 

this appeal. Accordingly, it will be dismissed.