527 F.2d 532 (8th Cir. 1975), 75--1641, Schmidt v. Fuller Brush Co.

Docket Nº:75--1641, 75--1643.
Citation:527 F.2d 532
Party Name:Dennis SCHMIDT et al., Appellees, v. FULLER BRUSH COMPANY and/or Consolidated Foods, Appellant. CONSOLIDATED FOODS CORPORATION, Petitioner, v. The Honorable Miles W. LORD, United States District Judge, Respondent.
Case Date:December 22, 1975
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 532

527 F.2d 532 (8th Cir. 1975)

Dennis SCHMIDT et al., Appellees,

v.

FULLER BRUSH COMPANY and/or Consolidated Foods, Appellant.

CONSOLIDATED FOODS CORPORATION, Petitioner,

v.

The Honorable Miles W. LORD, United States District Judge, Respondent.

Nos. 75--1641, 75--1643.

United States Court of Appeals, Eighth Circuit

December 22, 1975

Submitted Oct. 16, 1975.

Page 533

Curtis D. Forslund, Gray, Plant, Mooty & Anderson, Minneapolis, Minn., for Consolidated Foods (Fuller Brush Co.).

Clint Grose, Minneapolis, Minn., for Schmidt and others.

Before HEANEY, BRIGHT and WEBSTER, Circuit Judges.

PER CURIAM.

In this proceeding, Consolidated Foods Corporation (Consolidated) questions orders of the district court (Judge Miles W. Lord) permitting certain former employees of the Fuller Brush Company, a division of Consolidated, to bring a class action under Fed.R.Civ.P. 23 on behalf of other employees similarly situated seeking compensation allegedly due under provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Consolidated seeks review of the orders establishing the class action by way of a petition for writ of mandamus against Judge Lord as well as through an appeal based on the 'collateral order' doctrine. 1 Consolidated contends that provisions of the Fair Labor Standards Act prescribe procedures different than those authorized under Rule 23 and, accordingly, that the district court possessed no power to order a Rule 23 type class action in this case.

We hold that the question raised by Consolidated is reachable in its petition for writ of mandamus and that the class action order in the manner directed by the district court violates the express terms of § 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b). This section regulates class action procedures under the Act and permits an employee-plaintiff to represent others similarly situated who 'consent in writing.'

I. Proceedings in district court.

Dennis Schmidt, Gene Conaway, and Gordon Peterson, for themselves and others similarly situated, allege that they served as area managers for the Fuller Brush Company and that this employer failed to pay them minimum wages and overtime compensation allegedly required

Page 534

under the provisions of the Fair Labor Standards Act. In a separate count, plaintiffs also sought recovery of damages pursuant to provisions of the Truth In Lending Act, 15 U.S.C. § 1601 et seq. 2

After the complaint had been filed in this action, the district court issued its order defining the class as

all persons employed by the defendants (Fuller Brush Company and/or Consolidated Foods) to operate, manage, run or to work out of, work in, or work in conjunction with a product center. 3

In addition to defining the class, the court directed a form of notice to the members of the class in conformity with the 'opt-out' provision of Rule 23(c) (2) of the Federal Rules of Civil Procedure, which reads as follows:

In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.

Consolidated argues that the order of the district court represents a usurpation of power since the class action provisions of Rule 23 have no application to actions under § 16(b) of the Fair Labor Standards Act. Section 16(b), as relevant, reads:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount...

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