Elizabeth A. Acevedo v. PROFESSIONAL TRANSPORTATION, INCORPORATED, and RONALD D. ROMAIN

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2813
ELIZABETH A. ACEVEDO, et al.,
Plaintiffs-Appellants,
v.
PROFESSIONAL TRANSPORTATION, INCORPORATED, and RONALD
D. ROMAIN,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:19-cv-00024-RLY-MPB — Richard L. Young, Judge.
____________________
ARGUED APRIL 9, 2024 — DECIDED OCTOBER 31, 2024
____________________
Before EASTERBROOK, ROVNER, and JACKSON-AKIWUMI,
Circuit Judges.
EASTERBROOK, Circuit Judge. Professional Transportation’s
employees drive railroad workers to their job sites in passen-
ger vans. In 2014 a group of current and former drivers
brought a collective action under the Fair Labor Standards
Act, 29 U.S.C. §§ 201–219 (FLSA), seeking damages for over-
time and minimum-wage violations. The district court

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2 No. 23-2813
conditionally certified the collective action, and around 3,500
workers opted in. The judge later determined that the collec-
tive action was overbroad and decertified it, leaving the work-
ers to pursue their claims individually. Crawford v. Professional
Transportation, Inc., 2017 U.S. Dist. LEXIS 41545 (S.D. Ind. Mar.
22, 2017), motion to reconsider denied, 2017 U.S. Dist. LEXIS
131047 (S.D. Ind. Aug. 17, 2017). The suit was then abandoned,
and no one appealed.
Instead counsel in that litigation brought a second collec-
tive action in a different district court on behalf of more than
1,400 of the workers who had opted in to Crawford. The parties
refer to these as the “named plaintiffs” since their names were
included in the complaint. The complaint asserted most of the
same claims as before but added a new one. Many of the com-
pany’s vans are stored at hubs, but it permits some employees
to drive the vans home at the end of their workdays. To ac-
count for this time, it maintained a formula to determine a
“commute time adjustment” for each trip. The formula ex-
cluded from a worker’s timesheet time spent “commuting”—
activities such as driving to a hub to pick up a van or to a
worker’s home after completing a job—though not every hub
used the formula. The new claim in the new suit contests the
way this formula works.
This second case was transferred to the Southern District
of Indiana, which again declined to certify a collective action
on the issues raised in Crawford but conditionally certified a
collective action about the commute-time formula. 2020 U.S.
Dist. LEXIS 267120 (S.D. Ind. July 9, 2020). More than 3,000 per-
sons eventually filed with the court consents to join this sec-
ond suit. The parties refer to this group as the “opt-in plain-
tiffs”. After additional proceedings, the court decertified the

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No. 23-2813 3
collective action on the commute-time claim because the for-
mula was not applied at all of Professional Transportation’s
locations, and commute-time adjustments affected different
workers differently (depending, for example, on the distance
between their homes and their workstations). Cf. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338 (2011). The district court sev-
ered the claims as misjoined, see Fed. R. Civ. P. 20 and 21,
leaving Joseph Miller as the sole plaintiff. The court then de-
termined that the Act’s statute of limitations bars Miller’s
claim. The plaintiffs’ lawyers filed a notice of appeal.
This brings us to the main problem in this appeal: the lack
of an appellant. The Act requires each plaintiff in a collective
action to consent in writing to join the suit and file the consent
with the court in which the action is brought. 29 U.S.C.
§216(b). A would-be plaintiff who fails to satisfy either re-
quirement is not a party. Harkins v. Riverboat Services, Inc., 385
F.3d 1099, 1101 (7th Cir. 2004).
The “named plaintiffs” did not satisfy either requirement.
Counsel filed a complaint naming 1,400 current or former em-
ployees of Professional Transportation and aeached an ex-
hibit listing each person’s state of residence, employee num-
ber, and the date on which he or she had consented to join the
Crawford litigation. Counsel did not submit with the com-
plaint documents demonstrating that any of these employees
had consented to join this case, however. Under Harkins none
of these 1,400 “named plaintiffs” became a party on the com-
plaint’s filing date.
When asked about this issue, counsel offered three replies.
First, they asserted that the plaintiffs did not need to provide
wrieen consent because all 1,400 had consented to join the
earlier suit. The obvious problem with this argument is that

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4 No. 23-2813
§216(b) requires a consent to be filed “in the court in which
such action is brought.” One can’t meet this requirement by
recycling consents to join a different lawsuit, filed in a differ-
ent court. Counsel have proceeded as if this case were a con-
tinuation of Crawford. They are mistaken. Crawford is over.
This is a new case, and anyone who wished to become a party
to it as a collective action needed to file a wrieen consent.
Second, counsel pointed to the fact that they have forms
signed by each “named plaintiff” authorizing counsel, contin-
gent on the first collective action being decertified, to repre-
sent them for “any claims that [they] may have regarding un-
paid overtime … against Professional Transportation”. These
forms may indicate retention of a law firm, but they are not
consents to join a lawsuit. The statute speaks about filing in
court consent to join a specific suit, not about counsel having a
consent to act as a person’s agent.
Finally, counsel argued that defendants “waived” the
holding in Harkins by not raising it in the district court. Yet the
consent requirement is not a technical formality. Filing a con-
sent to participate in a collective action is what makes a per-
son a party, and only parties can appeal. Devlin v. ScardelleFi,
536 U.S. 1 (2002), permits class members to appeal independ-
ent of the class representative, but, until a person files a con-
sent to join a collective action, he is just a bystander.
Requiring wrieen consent protects the interests of persons
who otherwise could have their rights adjudicated without
their knowledge. Anderson v. Montgomery Ward & Co., Inc., 852
F.2d 1008, 1016 (7th Cir. 1988). The opt-in requirement distin-
guishes collective actions from class actions seeking damages,
which allow class members to opt out, rather than in. See Fed.
R. Civ. P. 23(b); see also Espenscheid v. DirectSat USA, LLC, 705

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No. 23-2813 5
F.3d 770 (7th Cir. 2013). Whether by opting in to a collective
action or opting out of a class action, people can preserve their
autonomy. The protection the consent requirement provides
to workers is not a defendant’s to waive. (Nor is waiver the
correct concept here—this would be forfeiture.)
Smith v. Professional Transportation, Inc., 5 F.4th 700 (7th
Cir. 2021), identified some uncertainty about whether a plain-
tiff initiating a collective action needs to file a separate docu-
ment consenting to join the suit. Smith dealt with a single
plaintiff filing a collective action on behalf of her coworkers.
We noted there that a sole plaintiff’s consent might be inferred
from filing a complaint in such circumstances. The complaint
in this case names more than 1,400 plaintiffs, and the issues
with notice and consent are obvious. Counsel did not ask us
to overrule Harkins in their opening brief even though they
concede they knew about the Harkins issue all along. We will
not revisit that decision today.
The people named in the complaint did not become par-
ties to this litigation at the outset, and so we lack jurisdiction
to hear an appeal brought by them unless they filed consents
later. Roughly 3,000 persons did file consents between the
complaint’s filing and the district court’s order decertifying
the collective action. There is some overlap between the opt-
in list and the original set of named plaintiffs. Any of the 1,400
named plaintiffs who later filed a consent became a party—
and each of the opt-ins also became a party. Yet counsel have
not prosecuted this appeal on behalf of anyone who ever filed
a consent.
After filing a notice of appeal, an aeorney must provide
the court with a statement “naming the parties that the aeor-
ney represents on appeal.” Fed. R. App. P. 12(b). Aeorneys

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6 No. 23-2813
typically satisfy this requirement via a disclosure statement
under Circuit Rule 26.1. The form counsel filed to comply
with this rule requires an aeorney to provide “[t]he full name
of every party that the aeorney represents in the case”. Coun-
sel stated that they represent “Elizabeth A. Acevedo, Michael
Acevedo, Richie L. Acevedo, Brian A. Adair, and Yusuf A.
Ghafoor and class”. None of these five filed a consent to join
the litigation, so none is a party under Harkins. What’s more,
the district court dismissed Abdul-Ghafoor from the case with
prejudice after he failed to respond to discovery. Counsel con-
sented to the dismissal and has not argued on appeal that it
was erroneous. None of these people is a proper appellant. If
counsel intended to appeal on behalf of other plaintiffs, they
needed to name them on their disclosure forms, following the
common practice of listing them on additional pages if neces-
sary.
This leaves the “class”. Class actions and collective actions
are different species of litigation. Without certification and
opt-ins by individual plaintiffs, a collective action is not
equivalent to a “class”. Genesis Healthcare Corp. v. Symczyk, 569
U.S. 66, 75 (2013); Luna Vanegas v. Signet Builders, Inc., 113 F.4th
718, 724 (7th Cir. 2024) (a “collective action tracks with a mass
action and is quite unlike a class action”) (cleaned up). Even
if we ignored this distinction, there is the additional fact that
none of the named plaintiffs in an uncertified collective action
acts as a representative for another. Cameron-Grant v. Maxim
Healthcare Services, Inc., 347 F.3d 1240, 1248–49 (11th Cir.
2002). Cf. Murphy v. Keystone Steel & Wire Co., 61 F.3d 560, 569–
71 (7th Cir. 1995). Counsel does not claim to be litigating this
appeal on behalf of any plaintiff who acts in a representative
capacity.

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No. 23-2813 7
Once the district court determined that the case could not
proceed as a collective action, it concluded that the 1,400
named plaintiffs had been improperly joined and ordered
severance. Counsel has not argued on appeal that this ruling
was erroneous. The court gave the plaintiffs the opportunity
to proceed individually. There were no takers, leaving Joseph
Miller as the sole plaintiff.
The court selected Miller because he is the only person
about whom the complaint made specific allegations regard-
ing the commute-time policy. We shall assume, without de-
ciding, that these allegations permit Miller to proceed on an
individual basis, even if he did not file the consent necessary
to join a collective action. See Smith, 5 F.4th at 703–04. Yet Mil-
ler is not mentioned in the case caption or disclosure state-
ments filed by counsel, let alone mentioned in a way indicat-
ing that Miller appeals as other workers’ representative.
Miller lost because the district court determined that the
statute of limitations, 29 U.S.C. §255(a), had run on all of the
claims he asserted. Counsel eventually gets around to Miller
at page 50 of appellants’ brief but does not try to explain why
the district court’s conclusion is incorrect. Appellants’ brief
asserts that Miller should be treated as having begun his ac-
tion on October 13, 2017 (the date this second suit was filed in
the Southern District of Illinois), but since the district court
found that all of Miller’s claims accrued before October 13,
2014, and the statute of limitations is two years (three for wil-
ful violations), we do not understand how the assertion
counts as an argument for reversal. It may be that counsel
meant to assert that Miller is entitled to the filing date of the
first suit (in 2014); some ambiguous language in the brief can
be read that way. But, as we have stressed, the Crawford

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8 No. 23-2813
litigation ended in 2017, and counsel has not argued that an
analogy to American Pipe & Construction Co. v. Utah, 414 U.S.
538 (1974), allows tolling in failed collective actions. See Luna
Vanegas, 113 F.4th at 725 (American Pipe does not apply to col-
lective actions). What’s more, Crawford did not contest the
commute-time adjustment, so tolling after the fashion of
American Pipe would not help Miller, something the district
judge pointed out but Miller’s counsel ignores.
Boeom line: plaintiffs’ lawyers have prosecuted this ap-
peal on behalf of five people who are not parties and so cannot
take an appeal. Without an appellant, we lack appellate juris-
diction and for that reason dismiss the appeal.

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