The United States Supreme Court granted certiorari
of a decision by the Third Circuit Court of Appeals, Symczyk v. Genesis
HealthCare Corp., 656 F.3d 189 (3d Cir. 2011) [an enhanced version of this opinion is available to lexis.com subscribers]. The
Third Circuit in Symczyk held that a collective action brought
under the FLSA is not rendered moot when the defendant makes a Rule 68 Offer of
Judgment in full satisfaction of the individual claim before the class representative
moves for conditional certification and before any other plaintiff opts into
In Symczyk the Rule 68 offer was made before
the plaintiff moved for conditional certification of the collective action. The
defendant then moved to dismiss arguing that the Rule 68 Offer of Judgment had
rendered the plaintiff's claim moot, and the District Court agreed with the
defendant and granted the motion to dismiss.
The Third Circuit reversed the District Court expressing
concern that such settlements could allow employers to "pick off"
plaintiffs. The Third Circuit reasoned that: "When Rule 68 morphs into a tool
for strategic curtailment of representative action, it facilitates an outcome
antithetical to the purpose behind Section 216(b).
The Supreme Court granted Genesis' petition for certiorari
and stated the question presented as "Whether a case becomes moot, and thus
beyond the judicial power of Article III, when the lone plaintiff receives an
offer from the defendants to satisfy all of the plaintiff's claims."
Collective actions are vital and necessary to encourage
compliance with the FLSA by raising the stakes for employers who break the law.
If the Supreme Court reverses the Third Circuit and allows defendants to "pick
off" plaintiffs it will make it very difficult to prosecute FLSA collection
actions and allow employers engaging in "wage theft to avoid the full measure
of the consequences of their actions" (quoting, Brief of Amici Curiae The
National Employment Lawyers Association, et al., in Support of
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