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10 Fed. Cts. L. Rev. 1 (2017-2018)

handle is hein.journals/fecourtl10 and id is 1 raw text is: THE FEDERAL COURTS LAW REVIEW: Volume 10 2017 THE UNANIMITY RULE: BLACK SWANS AND COMMON QUESTIONS IN FLSA COLLECTIVE ACTIONS Allan G. King* & Andrew Gray** I think everyone has a little black swan in them, it's just a matter of when you let it out.I INTRODUCTION ..........................................2 I. WHAT IS A COLLECTIVE ACTION, AND How ARE THEY TRIED? .........................................8 II. THE PLAINTIFF'S BURDEN OF PROOF IN MULTI-PLAINTIFF FLSA CASES. .......................................17 III. ARE A COURT'S DECISIONS TO CONDITIONALLY CERTIFY AND REFUSAL TO DECERTIFY A COLLECTIVE ACTION SUFFICIENT TO SUPPORT AN AGGREGATE SUBMISSION?......20 IV. WHAT FURTHER INQUIRY IS NECESSARY TO JUSTIFY AN AGGREGATE SUBMISSION? ................24 V. THE UNANIMITY RULE IN PRACTICE AND How IT CAN BE IMPLEMENTED AT TRIAL. ............ ..................29 t The Federal Courts Law Review is a publication of the Federal Magistrate Judges Association. Editing support is provided by the members of the Mississippi Law Journal. * Allan G. King is a shareholder in the Austin office of Littler Mendelson, P.C. He holds a B.A. degree from the City College of New York, an M.S. and Ph.D. in economics from Cornell University, and a J.D. from the University of Texas School of Law. ** Andrew Gray is an associate in the Austin office of Littler Mendelson, P.C. He holds a B.A. from The University of Texas at Austin, and a J.D. from the University of Texas School of Law. 1 Interview by Christina Radish with Mila Kunis, Actress (Nov. 23, 2010), http://collider.com/mila-kunis-interview-black-swan/ [https://perma.cc/36NJ-WFQF]. 1