In collective actions under the FLSA, courts typically apply a
lower standard to the first "conditional certification"
stage. In some cases, that might be warranted, but in many
instances courts will undertake an unduly lenient review and
conditionally certify cases that have no business proceeding as a
class and have no realistic prospect of surviving as a class at the
higher second stage. These rulings likely run afoul of the
admonition of the Federal Rules of Civil Procedure that district
court proceedings should be employed "to secure the just,
speedy, and inexpensive determination of every action . . . ."
F.R. Civ. P 1. Instead, such rulings rely upon the time, expense
and burden of post-notice litigation to pressure the defendant into
settlement. Indeed, one line of cases notes that a court ruling on
a motion for conditional certification should be mindful of its
obligation "to refrain from 'stirring up unwarranted
litigation.'" Rowe v. Hospital Housekeeping
