In FLSA collective actions, every person who joins the suit must opt in by signing an opt-in form. Even the lead plaintiff must do that in order to officially be part of the class.  On several occasions, I have argued to plaintiff’s counsel that the failure of the lead plaintiff(s) to themselves execute the op-in form has further eroded away that person’s possible recovery period and/or abrogated the entire class action.  (And it has worked). Now, in an interesting case that cuts against this premise, a federal judge has permitted a collective action filed by a class of exotic dancers to proceed, notwithstanding the failure of the lead plaintiff to sign and file the (I thought) required opt-in form.  The case is entitled D’Antuono et al. v. Genna and was filed in federal court in the District of Connecticut.

The employer had argued that the lead plaintiff, who separated in December 2008, never filed the consent form and therefore had not stopped the statute from running, effectively eliminating any recovery on her part.  This was consistent with the law, which mandates all plaintiffs sign in to the suit.  The plaintiff, Cruz, argued that a 2011 Affidavit she had submitted evidenced her consent to join the suit and should be taken as the equivalent of an opt-in form.

The court concluded that the affidavit was sufficient to meet the notice requirement and noted that the issue would not have even become a problem, if the consent had been filed when the complaint was originally filed.  The court stated that “despite this lapse, the court reads Ms. Cruz’ affidavit broadly as implicitly verifying the complaint, expressing an interest that legal action be taken to protect her rights and expressing an interest in being a party plaintiff."

The lawsuit centers around allegations that the plaintiffs were not independent contractors, another in a long string of these so-called stripper cases, where the crux of the theory is that the employer did not properly pay minimum wage.  Some of the plaintiffs were ordered to arbitrate their claims on the basis of the holding in AT&T v. Concepcion, but plaintiff Cruz had not signed the "entertainment lease" that contained a mandatory arbitration clause.

The Court’s taking the Affidavit as a de facto opt in form is disturbing.  What other “slippage” will there be in the kinds of documents and filings that a court will accept as the equivalent of an opt-in form?  Put differently, a defense previously available to employers to defeat a class action by kicking out the lead plaintiff may be endangered.  We will see if other courts follow this lead, or whether this decision is more aberrational in nature.