GRAHAM LUNDEEN, on behalf of himself and similarly situated employee v. 10 WEST FERRY STREET OPERATIONS LLC d/b/a LOGAN INN

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 24-3375
_______________________
GRAHAM LUNDEEN, on behalf of himself and similarly
situated employee
v.
10 WEST FERRY STREET OPERATIONS LLC d/b/a
LOGAN INN,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil No. 2:24-cv-00109
District Judge: Honorable Joshua D. Wolson
__________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 18, 2025
Before: RESTREPO, McKEE, and SMITH, Circuit Judges
(Filed: October 16, 2025)

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Hannah M. Schroer
David J. Freedman
Barley Snyder
126 E King Street
Lancaster, PA 17602
Counsel for Appellant
Peter Winebrake
Winebrake & Santillo
715 Twinning Road
Suite 211
Dresher, PA 19025
Counsel for Appellee
__________________________
OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.
This appeal presents a question of first impression
which arises at the intersection of the Fair Labor Standards Act
(“FLSA”) and Rule 23 of the Federal Rules of Civil Procedure:
whether the FLSA’s opt-in requirement in § 216(b) prohibits
named plaintiffs in a class action from settling prospective
class members’ unasserted FLSA claims as part of an opt-out
class settlement under Rule 23(b)(3). The District Court
answered in the affirmative and, on that ground alone, denied
preliminary approval of a negotiated settlement. Because §
216(b) establishes only the mechanism by which FLSA claims
may be litigated, not the conditions under which they may be

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waived, we hold that the statute does not forbid such
settlements. We therefore will vacate the District Court’s
October 30, 2024 order denying reconsideration and remand so
that the District Court may conduct the full fairness inquiry
required by Rule 23.
I.
Defendant-Appellant 10 West Ferry Street Operations
LLC (“10 West”) owns and operates the Logan Inn, a
restaurant and bar in New Hope, Pennsylvania. Plaintiff-
Appellee Graham Lundeen worked there as a bartender and
server from September 2021 until December 2022. The Inn’s
bartenders contributed to a tip pool,1 which was distributed
proportionally among them. Lundeen alleges that Bar Manager
Randy Charlins, a salaried supervisory employee, also received
distributions from that tip pool.
In January 2024, Lundeen filed this action in the Eastern
District of Pennsylvania on behalf of himself and other
similarly situated employees. He asserted violations of the
FLSA, 29 U.S.C. §§ 201–219, and the Pennsylvania Minimum
Wage Act (“PMWA”), 43 P.S. §§ 333.101–333.115, seeking
compensatory damages, including lost tip credits, and
liquidated damages under § 216(b) of the FLSA.2 Both claims
1 A “tip pool” is a practice by which customer gratuities are
collected and then redistributed among employees who
customarily and regularly receive those tips.
2 Under the FLSA, an employer forfeits its right to claim a “tip
credit”—that is, to count a portion of employees’ tips toward
the minimum wage obligation—when they “allow[ ] managers

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rested on Charlins’ alleged receipt of tip-pool funds that were
intended for bartenders. Lundeen styled the case as a hybrid
class/collective action, asserting that his FLSA claim should
proceed as a collective action under § 216(b), and his PMWA
claim as a Rule 23(b)(3) class action.
In March 2024, the parties stipulated to—and the
District Court ordered—conditional certification of an FLSA
collective comprising: “All individuals who were employed by
the Logan Inn as an hourly bartender or server during any week
between April 28, 2021, and January 23, 2023, and who
contributed to a tip pool that resulted in at least some tips being
distributed to Randy Charlins.” JA27. Because § 216(b) of the
FLSA requires employees to “give[] [their] consent in writing”
to become party plaintiffs, Lundeen’s counsel mailed notice
and “Consent to Join” forms to all putative collective members.
JA28. The notice stated: “If you do not join the lawsuit, you
will not be part of the ‘collective’ of individuals pursuing their
FLSA rights. Thus, you will not be affected by any judgment
or settlement resulting from the FLSA claim.” JA31. Ten
employees, including Lundeen, opted in by filing written
consents.
After some discovery, the parties engaged in a
settlement conference before Magistrate Judge Scott W. Reid
and succeeded in reaching an agreement in June 2024.
or supervisors to keep any portion of employees’ tips.” 29
U.S.C. § 203(m)(2)(B). Similarly, the PMWA allows use of a
tip credit only if “[a]ll tips received by such employe [sic] have
been retained by the employe [sic] and shall not be surrendered
to the employer.” 43 P.S. § 333.103(d)(2).

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Lundeen then filed an unopposed motion for conditional
certification of a class under Rule 23(b)(3)3 and preliminary
approval of a class settlement in August 2024. Logan Inn’s
maximum total payment under the settlement was $100,000 to
be distributed to Lundeen, Lundeen’s lawyers, and class
members. $60,000 would be distributed pro rata to all class
members who had not opted out without requiring those class
members to submit a claim form. In addition, the ten
individuals who had previously opted into the FLSA collective
would share in an additional $5,000 pool. In exchange, class
members, excluding those who affirmatively opted out, would
release their wage-and-hour claims, as well as any FLSA
claims which had arisen during the relevant period. The parties
also attached to their motion a proposed “Notice of Settlement”
form to be sent to class members. JA57–60. The notice
informed class members that by failing to opt out they would
“waive the right to recover both wages and liquidated damages
under the FLSA.” JA58. The notice also explained how to opt
out or object to the settlement.
3 Plaintiff’s proposed class definition mirrored the definition of
the certified FLSA collective: “Plaintiff [Lundeen], Opt-In
Plaintiffs [the ten who joined the FLSA collective], and all
other individuals who were employed by [10 West] at the
Logan Inn as an hourly bartender or server during any week
between April 28, 2021 and January 23, 2023, and who
contributed to a tip pool that resulted in at least some tips being
distributed to Randy Charlins.” JA45. Plaintiff’s motion
identified 59 putative class members, including Lundeen.
JA43.

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The District Court convened a hearing on October 1,
2024, not to assess the overall fairness, reasonableness and
adequacy of the settlement under Rule 23(e)(2), but
specifically to address whether class members who had not
opted into the FLSA collective action could nonetheless be
required by the class action settlement to waive FLSA claims.
Eight days later, the District Court denied preliminary approval
of the class settlement. Lundeen v. 10 W. Ferry St. Operations
LLC, No. 2:24-CV-00109, 2024 WL 4466678, at *4 (E.D. Pa.
Oct. 9, 2024). Citing § 216(b)’s command that “[n]o employee
shall be a party plaintiff to any . . . action unless he gives his
consent in writing,” the court reasoned that the agreement was
“neither fair nor reasonable” because it “require[d] class
members who did not opt in to the FLSA collective to release
their FLSA claims.” Id.4
4 While the District Court purportedly declined to hold that
“judges can’t approve such a release,” but rather that “judges
shouldn’t do so,” id. at *3 (emphasis omitted), its reasoning left
no practical daylight between the two. By concluding that the
settlement could not be approved solely because of the FLSA
release and declining to assess any other Rule 23(e)(2) factors,
the court in substance imposed a categorical prohibition. See
id. at *4 (“I cannot grant preliminary approval of the settlement
because it requires class members who did not opt in to the
FLSA collective to release their FLSA claims . . .”) (emphasis
added). This is confirmed by the Court’s Oct. 30, 2024, Order
denying reconsideration. JA132–36 (“[M]y decision to deny
preliminary approval of the settlement turns on my

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10 West moved for reconsideration, arguing that §
216(b) imposed no such restriction on releasing FLSA claims.
The District Court denied reconsideration on October 30, 2024,
but certified the following question for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b): “[W]hether Section 216(b) of
the Fair Labor Standards Act permits a party to obtain the
release of unasserted FLSA claims through a Rule 23(b)(3)
opt-out class settlement.” JA132–36. This Court granted Logan
Inn’s § 1292(b) petition on December 10, 2024. On appeal,
both named parties urge reversal, contending that § 216(b)
does not bar approval of a Rule 23 settlement that includes such
releases. We agree.
II.5
We exercise plenary review over a certified question of
law. Consumer Fin. Prot. Bureau v. Nat'l Collegiate Master
Student Loan Tr., 96 F.4th 599, 608 (3d Cir. 2024). Although
the District Court certified a single question, our review may
reach any matter “fairly included within the certified order.”
Barbato v. Greystone All., LLC, 916 F.3d 260, 264 (3d Cir.
understanding that Section 216(b) of the FLSA bars the release
of unasserted FLSA claims through a Rule 23(b)(3) opt-out
settlement.”) (emphasis added).
5 The District Court had jurisdiction over the FLSA claim
pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. It
exercised supplemental jurisdiction over the state-law PMWA
claim pursuant to 28 U.S.C. § 1367. We have jurisdiction under
28 U.S.C. § 1292(b).

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2019) (citing Yamaha Motor Corp., U.S.A. v. Calhoun, 516
U.S. 199, 205 (1996)). We may not, however, “reach beyond
the certified order to address other orders made in the case.”
Yamaha, 516 U.S. at 205.
“We review the denial of a motion for reconsideration
for abuse of discretion.” United States v. Kalb, 891 F.3d 455,
459 (3d Cir. 2018) (citation omitted). A court necessarily
abuses its discretion when its ruling rests on an error of law.
See Duncan v. Governor of Virgin Islands, 48 F.4th 195, 213
n.20 (3d Cir. 2022) (“[A]pplication of an incorrect legal
standard is by definition an abuse of discretion.”).
A.
Because this appeal presents a question of statutory
interpretation, “[a]s always, we start with the statutory text[.]”
Garland v. Cargill, 602 U.S. 406, 415 (2024).
The text of the FLSA provides, in relevant part:
An action to recover the liability prescribed in
the preceding sentences [for failure to pay
statutorily required overtime or minimum wages
under the FLSA] may be maintained against any
employer (including a public agency) in any
Federal or State court of competent jurisdiction
by any one or more employees for and in behalf
of himself or themselves and other employees
similarly situated. No employee shall be a party
plaintiff to any such action unless he gives his
consent in writing to become such a party and

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such consent is filed in the court in which such
action is brought.
29 U.S.C. § 216(b) (emphasis added).
From this language, the District Court concluded that it
could not approve a Rule 23 class settlement that required
absent class members to release FLSA claims. Lundeen, 2024
WL 4466678, at *4. However, the District Court recognized
that “[r]easonable minds can disagree about [this] conclusion.”
JA134. And indeed, they have. While no other Circuit has yet
to squarely address this issue,6 district courts appear to be split.
Compare, e.g., Myles v. AlliedBarton Sec. Servs., LLC, No. 12-
CV-05761, 2014 WL 6065602, at *3 (N.D. Cal. Nov. 12, 2014)
(“[A]n opt-out settlement . . . does not work for the
6 The Fifth and Ninth Circuits have confronted related
questions, though not in the posture as presented here. In
Richardson v. Wells Fargo Bank, N.A., 839 F.3d 442 (5th Cir.
2016), and Rangel v. PLS Check Cashers of California, Inc.,
899 F.3d 1106 (9th Cir. 2018), plaintiffs sought to bring FLSA
collective actions after participating in state-court wage-and-
hour class settlements. Both courts held that those collective
actions were barred by res judicata, giving preclusive effect to
the FLSA releases contained in the opt-out settlements. See
Richardson, 839 F.3d at 449-52; Rangel, 899 F.3d at 1111–12.
But the application of claim preclusion does not itself
determine whether approval of such a settlement was proper at
the outset. See City of Arlington v. FCC, 569 U.S. 290, 297
(2013) (“[E]ven an erroneous judgment is entitled to res
judicata effect.”).

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compromise or release of FLSA claims.”); Tijero v. Aaron
Bros., Inc., No. 10-cv-01089, 2013 WL 60464, at *8 (N.D. Cal.
Jan. 2, 2013) (“[I]t is contrary to § 216(b) to bind class
members to a release of FLSA claims[.]”); Butler v. Am. Cable
& Tel., LLC, No. 09 CV 5336, 2011 WL 2708399, at *9 (N.D.
Ill. July 12, 2011) (“[R]eleas[ing] the FLSA claims of all class
members without the requisite opt-in procedures is
improper[.]”); La Parne v. Monex Deposit Co., No. SACV 08-
0302 DOC (MLGx), 2010 WL 4916606, at *3 (C.D. Cal. Nov.
29, 2010) (“[I]t would be contrary to the statute to bind class
members who do not affirmatively elect . . . to participate in
the FLSA suit[.]”), with Lunemann v. Kooma III LLC, No. CV
23-3704, 2024 WL 2133803, at *2 (E.D. Pa. May 13, 2024)
(“[O]pt-in FLSA claims may be properly released through [an]
opt-out class settlement[.]”); Then v. Great Arrow Builders,
LLC, No. 2:20-CV-00800, 2022 WL 562807, at *4 (W.D. Pa.
Feb. 23, 2022) (approving opt-out class settlement releasing
FLSA claims); Stephens v. Farmers Rest. Grp., 329 F.R.D.
476, 489 (D.D.C. 2019) (“[T]he Court finds little support for
the proposition that parties are categorically precluded from
including such a release in a binding Rule 23 class-action
settlement.”); Cotter v. Lyft, Inc., No. 13-cv-04065, 2017 WL
1033527, at *1–2 (N.D. Cal. Mar. 16, 2017) (rejecting the
notion that “a district judge should not approve a settlement in
a Rule 23 wage-and-hour class action . . . that releases FLSA
claims”), aff'd sub nom. Cotter v. Page, No. 17-15648, 2017
WL 4535961 (9th Cir. Sept. 15, 2017). We agree with those
courts that have held that § 216(b) of the FLSA provides only
a mechanism for opting into collective litigation. Accordingly,
we hold that the language of § 216(b) does not bar the release

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of unasserted FLSA claims in a court-approved Rule 23
settlement.
By its terms, § 216(b) establishes a private right of
action for employees to recover under the FLSA. See Knepper
v. Rite Aid Corp., 675 F.3d 249, 253 (3d Cir. 2012). Its plain
text requires that employees affirmatively opt in before they
may act as party plaintiffs. Courts have therefore recognized
that “FLSA claims cannot be asserted using an opt out class
action procedure.” Richardson, 839 F.3d at 451–52; see also
Knepper, 675 F.3d at 257 (collecting cases for the proposition
that “the plain language of [§ 216(b)] bars opt-out class actions
to enforce the provisions of the FLSA”).
But the statute stops there. Nothing in § 216(b)
addresses the release of unasserted claims. As the Fifth Circuit
observed, while “FLSA claims cannot be asserted using an opt
out class action procedure . . . [i]t takes an additional step to
conclude that the FLSA prohibits . . . courts from supervising
and approving an opt out class action settlement that releases
FLSA claims, and this step is not supported by § 216(b).”
Richardson, 839 F.3d at 451.7 Put simply, § 216(b) requires
written consent to litigate an FLSA claim, but it says nothing
7 While Richardson addressed enforcement rather than initial
approval of opt-out settlements releasing FLSA claims, its
reasoning nonetheless endorsed the practice. See id. at 452
(rejecting the view that “the FLSA provides an absolute bar to
the release of FLSA claims in a judicially supervised class
action settlement using an opt out procedure”); Id. at 441 n.8
(agreeing that “a settlement could validly release FLSA claims
as part of an opt out class action”).

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about waiver of such a claim in settlement. And in that silence
“it is our duty to respect not only what Congress wrote but, as
importantly, what it didn't write.” Virginia Uranium, Inc. v.
Warren, 587 U.S. 761, 765 (2019). Indeed, reading a statute
that governs only how claims may be litigated as also
restricting how they may be waived would “not [be] a
construction of a statute, but, in effect, an enlargement of it by
the court[.]” Iselin v. United States, 270 U.S. 245, 251 (1926).
Such judicial action is beyond our authority. See Rotkiske v.
Klemm, 589 U.S. 8, 14 (2019) (“It is a fundamental principle
of statutory interpretation that ‘absent provision[s] cannot be
supplied by the courts.’” (quoting Antonin Scalia & Bryan
Garner, Reading Law: The Interpretation of Legal Texts 94
(2012))).
B.
The District Court nevertheless inferred from § 216(b)
a supposedly worker-protective principle forbidding such
releases. That reading is flawed in several respects.
For starters, even assuming, arguendo, that Congress
intended to protect workers by adopting the opt-in mechanism,
that premise does not authorize courts to “add features that will
achieve the statutory ‘purposes’ more effectively.” Dir., Off. of
Workers' Comp. Programs, Dep't of Lab. v. Newport News
Shipbuilding & Dry Dock Co., 514 U.S. 122, 136 (1995). As
the Supreme Court has explained, we may not “revise
legislation . . . just because the text as written creates an
apparent anomaly as to some subject it does not address.”
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 794 (2014).
Statutes ordinarily reflect a balancing of various competing

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considerations, and it is “‘quite mistaken to assume’ . . . that
any interpretation of a law that does more to advance a statute’s
putative goal ‘must be the law.’” Luna Perez v. Sturgis Pub.
Schs., 598 U.S. 142, 150 (2023) (quoting Henson v. Santander
Consumer USA Inc., 582 U.S. 79, 89 (2017)); see also Encino
Motorcars, LLC v. Navarro, 584 U.S. 79, 89 (2018) (rejecting
the “flawed premise that the FLSA pursues its remedial
purpose at all costs”) (citation modified).
For this reason, we have cautioned against relying on
“perceived Congressional intent absent any clear textual or
doctrinal basis.” Knepper, 675 F.3d at 259. In Knepper, we
rejected the notion that Rule 23 class actions asserting state law
claims were “inherently incompatible” with the FLSA’s opt-in
procedure. Id. at 253. We endorsed the use of “hybrid” actions,
such as the present one, where an FLSA collective and a Rule
23(b)(3) class proceed side by side in the same case. Id. at 261–
62. We explained that “the plain text of § 216(b) provides no
support for the concept of inherent incompatibility” and that
courts holding otherwise had impermissibly “reasoned from
Congressional intent.” Id. at 259.
Here, the District Court had to determine if the
compatibility we identified in Knepper of an FLSA collective
action and Rule 23(b)(3) action extended to a settlement of the
latter including, inter alia, a waiver by prospective FLSA
plaintiffs of any such FLSA claim. In doing so the District
Court invoked the same rationale we rejected in Knepper. It
reasoned that such releases would “be an end run around
Congress’s decision to require opt in party plaintiffs in FLSA
cases” and would be “at odds with Congress’s intent in
adopting an opt-in mechanism under the FLSA.” Lundeen,

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2024 WL 4466678, at *2; see also Knepper, 675 F.3d at 259
(rejecting the notion that allowing an opt-out class mechanism
alongside § 216(b)’s opt-in procedure “‘would essentially
nullify Congress’s intent in crafting Section 216(b) and
eviscerate the purpose of Section 216(b)’s opt-in
requirement.’”) (citations omitted). But what Knepper made
clear is this: extrinsic considerations—such as policy goals—
are relevant to statutory interpretation only insofar as they
“shed a reliable light on the enacting Legislature's
understanding of otherwise ambiguous terms.” 675 F.3d at 259
(quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546, 568 (2005)). By contrast, “[w]here the statutory language
is unambiguous, the court should not consider statutory
purpose or legislative history.” In re Philadelphia Newspapers,
LLC, 599 F.3d 298, 304 (3d Cir. 2010), as amended (May 7,
2010).
Importantly, the plain text of § 216(b) neither compels
nor forbids the release of unasserted FLSA claims in a class
settlement. On that point, it is silent. But “Congress’s silence
does not render the statute ambiguous.” United States v.
Craveiro, 907 F.2d 260, 262 (1st Cir. 1990); see also New
Jersey v. New York, 523 U.S. 767, 813 (1998) (Breyer, J.,
concurring) (“[S]ilence is not ambiguity[.]”). Ambiguity exists
only when, “despite a studied examination of the statutory
context, the natural reading of a provision remains elusive.” In
re Price, 370 F.3d 362, 369 (3d Cir. 2004). Section 216(b)’s
natural meaning is not elusive. It creates a private right of
action and requires employees to opt-in to litigate their claims;
it says nothing about releasing claims that have not been
asserted. In short, “‘Congress wrote the statute it wrote’—

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meaning, a statute going so far and no further.” Michigan, 572
U.S. at 794 (citation omitted).
At all events, the District Court’s reading of § 216(b)’s
history was mistaken. Although Congress originally enacted
the FLSA to safeguard employees,8 Congress did not have
worker-protection in mind when it later adopted the opt-in
mechanism. See generally Knepper, 675 F.3d at 253–57
(providing a comprehensive overview of § 216(b)’s adoption).
In 1946—eight years after the FLSA was enacted—the
Supreme Court held that “portal-to-portal” time, such as
walking to work on the employer’s premises, qualified as
compensable work under the Act. See Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 691 (1946). That decision unleashed
thousands of lawsuits seeking back pay—nearly all of which
were so called “representative actions” initiated by third-party
union officials who lacked any stake in the actions. Knepper,
675 F.3d at 255.
It was against that backdrop of “‘excessive and needless
litigation’” and the “‘wholly unexpected liabilities’” it imposed
for employers, that Congress passed the Portal-to-Portal Act of
19479—amending § 216(b) to require written consent before
an employee could join an action. Id. at 255 (citation omitted).
Thus, Congress created the opt-in scheme, not as a worker-
8 See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S.
728, 739 (1981) (“[T]he principal congressional purpose in
enacting the Fair Labor Standards Act of 1938 was to protect
all covered workers from substandard wages and oppressive
working hours[.]” (citing 29 U.S.C. § 202(a)).
9 Ch. 52, § 5(a), 61 Stat. 84, 87 (codified at 29 U.S.C. § 216(b)).

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protection measure but “primarily as a check against the power
of unions” and a bar to “one-way intervention” whereby
plaintiffs could wait for a favorable outcome before choosing
to opt in and be bound by the judgment. Id. at 260; see also
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989)
(stating that the opt-in requirement was added “for the purpose
of limiting private FLSA plaintiffs to employees who asserted
claims in their own right and freeing employers of the burden
of representative actions”). Accordingly, we reject the view
that permitting the release of unasserted FLSA claims in a Rule
23(b)(3) settlement undermines the congressional purpose of
the Portal-to-Portal Act.
In sum, § 216(b) requires written consent to litigate
FLSA claims, but it does not forbid the release of unasserted
claims through a Rule 23(b)(3) opt-out settlement. To the
extent the District Court rested its denial of preliminary
approval on a contrary reading, it committed legal error in
doing so. Accordingly, we hold that the District Court abused
its discretion in denying reconsideration.
III.
But that is not the end of the matter. As the District
Court recognized, whether judges can approve opt-out
settlements that release FLSA claims is a different inquiry from
whether judges should do so. Lundeen, 2024 WL 4466678, at
*3. The former question is an issue of statutory interpretation;
the latter turns on whether the settlement is “fair, reasonable,
and adequate,” subject to the District Court’s considerable

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discretion.10 Fed. R. Civ. P. 23(e)(2); Halley v. Honeywell Int'l,
Inc., 861 F.3d 481, 488 (3d Cir. 2017) (“The ultimate decision
whether to approve a proposed settlement under this standard
is left to the sound discretion of the district court.”) (internal
quotations omitted). Although there is a “strong judicial policy
in favor of class action settlement,” Ehrheart v. Verizon
Wireless, 609 F.3d 590, 595 (3d Cir. 2010), a district court
must be mindful to “assur[e] that the settlement represents
adequate compensation for the release of the class claims.” In
re Gen. Motors, 55 F.3d at 805; see also Ehrheart, 609 F.3d at
593 (“Under Rule 23(e), a district court acts as a fiduciary,
guarding the claims and rights of the absent class members.”).
Indeed, that “special prophylactic function” is vital “to protect
the nonparty class members from unjust or unfair settlements
affecting their rights.” 7B Wright & Miller, Federal Practice
& Procedure § 1797 (3d ed. 2025). This is especially true
where, as here, the court is presented with simultaneous
motions for class certification and settlement approval. Halley,
10 Review of a proposed class settlement typically follows a
two-step process. First, before directing that notice be issued
to the class, the court generally grants preliminary approval of
the settlement upon a showing that it “will likely be able to . .
. approve the proposal under Rule 23(e)(2)[.]” Fed. R. Civ. P.
23(e)(1)(B)(i); see also, e.g., In re Gen. Motors Corp. Pick-Up
Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir.
1995) (describing this process). Second, after absent class
members are notified and afforded the opportunity to object or
opt-out, the court holds a fairness hearing and, if satisfied the
settlement is “fair, reasonable, and adequate,” grants final
approval. See Fed. R. Civ. P. 23(e)(2).

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861 F.3d at 488 (noting that in such situations courts must “be
even more scrupulous than usual when they examine the
fairness of the proposed settlement”) (citation omitted).
Thus, while § 216(b) does not forbid the release of
unasserted FLSA claims in opt-out settlements, such releases
remain relevant to the court’s overall Rule 23(e)(2) analysis.
For example, courts that have approved similar settlements
have stressed the importance of clear notice to class members
of the release and a meaningful opportunity to opt out. See, e.g.,
Lunemann, 2024 WL 2133803, at *2 (noting that the proposed
notice of settlement “provided a clear and comprehensive
explanation of the release” and informed class members how
to preserve potential FLSA claims); Great Arrow Builders,
2022 WL 562807, at *4 (concluding that the release of FLSA
claims was acceptable “particularly because the proposed
notice appears to fully inform settlement class members of
what they must do to opt-out of the settlement and preserve any
FLSA claim they might have”); Pliego v. Los Arcos Mexican
Restaurants, Inc., 313 F.R.D. 117, 132 (D. Colo. 2016)
(“[A]ny problems with the release language with respect to
FLSA claims can be ameliorated by ensuring that the Notice to
Class Members . . . conspicuously state[s] the differences
between federal and state law claims . . . [and that] the federal
claims for which release would be given . . . include those
arising under the FLSA.”).
Here, the proposed notice did just that. It made plain that
class members who wished to preserve potential FLSA claims
could do so by excluding themselves from the settlement.
JA58–59. While that safeguard likely weighs in favor of
approval, ultimately, it is for the District Court to assess the

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fairness of the proposed settlement in light of the factors we
have articulated in our precedents. See Halley, 861 F.3d at 489
(identifying nine factors first laid out in Girsh v. Jepson, 521
F.2d 153, 157 (3d Cir. 1975) and later expanded in In re
Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions, 148
F.3d 283, 323 (3d Cir. 1998)).
IV.
For the foregoing reasons, we will vacate the District
Court’s October 30, 2024 order denying reconsideration and
remand for further proceedings consistent with this opinion.

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