U.S. Supreme Court To Hear Arguments In Case That Could Have Significant Impact On Strategies Available To Defend FLSA Collective Actions

The United States Supreme Court recently granted certiorari of a decision by the Third Circuit Court of Appeals, Symczyk v. Genesis HealthCare Corp., 656 F.3d 189 (3d Cir. 2011), a case that could have a significant impact on employers' litigation strategy in putative FLSA collective actions. 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 compromise in full satisfaction of the individual claim to a putative representative before the class representative moves for "conditional certification" and before any other plaintiff opts into the action.

Under the FLSA, an employee may file a "collective action" against an employer on behalf of himself and other similarly situated employees. Unlike traditional class actions, however, the FLSA requires that the "similarly situated" employees affirmatively decide to join or opt into the collective action. In Symczyk, the plaintiff filed a putative FLSA collective action, alleging that her employer, Genesis, automatically deducted her pay for meal breaks regardless of whether she performed any compensable work during the break. After answering the Complaint, Genesis served the plaintiff with an offer of judgment for the full amount of her claims, including costs and attorneys' fees, pursuant to Federal Rule of Civil Procedure 68. Genesis then moved to dismiss the Complaint, arguing that the offer to pay her claims in full mooted the claims, depriving the plaintiff of any ongoing personal stake or legally cognizable interest in the litigation, and divesting the court of any jurisdiction over the case.

The district court granted Genesis' motion, holding that an offer in full satisfaction of a plaintiff's claims moots those claims. At this point, no other employees had opted into the suit because the plaintiff had not yet sought conditional certification of the collective action. Thus, the case was dismissed. The Third Circuit reversed, holding that "conventional mootness principles do not fit neatly within the representative action paradigm." Id. at 195. The court compared FLSA collective actions to class actions, in which it is settled law that a defendant cannot moot a putative class action by making an offer of judgment to the named plaintiff before the class is certified and held that there was no rationale for treating the two types of actions differently. Id. at 197-201.

Accordingly, the Third Circuit...