If They Walk Like a Duck and Quack Like a Duck: Do the Class Action Mootness Doctrines Apply to Fair Labor Standards Actions?
3 Preview of Supreme Court Cases 115 (Nov. 26, 2012)
5 Pages Posted: 27 Jan 2013
Date Written: November 26, 2012
In Genesis HealthCare Corp. v. Symczyk, the Court will consider whether the trial court’s dismissal of Symczyk’s claim before the court certified a collective FLSA action mooted the case and prevented adjudication of the claims of others similarly situated. Symczyk brought a lawsuit under the Fair Labor Standards Act against her employers Genesis HealthCare Corp. and ElderCare Resources Corp.
The Court will decide whether a trial court’s dismissal of a plaintiff’s individual Fair Labor Standard Act claim, before the court certifies a collective FLSA action, moots the FSLA claims of other similarly situated employees not yet joined in the action and requires dismissal of the FSLA lawsuit. As a threshold matter, the Court may consider whether Symczyk’s refusal to accept a settlement offer constituted a ground for dismissal of her claims and mooted her individual suit.
Congress enacted the FSLA in 1938 to provide a means for employees to bring an action against their employers for alleged violations of minimum wage or overtime compensation rights. The statute, which Congress has amended several times, permits an employee to sue “for and in behalf of himself . . . and other employees similarly situated. Fair Labor Standards Act of 1938, 52 Stat. 1069, 29 U.S.C. § 216(b). The statute requires that an employee who wishes to join an FSLA lawsuit filed by someone else must “opt-in” to the action: “No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which the action is brought.”
Collective actions under the FSLA technically are not class actions brought pursuant to the class action Rule 23. Unlike FSLA actions, Rule 23 sets forth extensive requirements for an action to be maintained as a class action, including an opt-out procedure for damage class actions. FSLA collective actions are not subject to Rule 23 requirements and courts instead have developed a two-step process for managing FSLA actions. Initially a court will make a preliminary determination whether the named plaintiff is similarly situated to the other employees on whose behalf the FSLA lawsuit has been filed. If so, then the court conditionally certifies the action and exercise discretion to order notice to other employees. After discovery, the court will re-examine whether claimants are similarly situated, and may final certify or decertify the FSLA action.
Symczyk’s appeal involves the intersection of FSLA litigation, the federal “offer of judgment” rule, and constitutional mootness doctrines. Rule 68 generally provides that a defendant may make an offer of judgment to a plaintiff on certain terms, and if the plaintiff accepts that offer, then a judgment will be entered in the case. Symczyk’s appeal may present yet another opportunity for the Court this Term to dismiss a case as “improvidently granted” for review. Symczyk has raised a threshold question that may affect the Court’s disposition of this case: namely, whether the trial court improperly dismissed her action ― and thereby mooted her claims ― when she refused to accept the Defendants’ Rule 68 offer of judgment.
As one of the largest employers subject to the FSLA, the United States has submitted an amicus curiae brief supporting affirmance. The government contends that the appellate court correctly reversed the district court’s judgment, but its rationale was flawed because Symczyk’s claims were not mooted by her refusal to accept the Rule 68 offer of judgment. Consequently, the government argues that the Court simply should affirm the judgment of the Third Circuit on the ground that Symczyk’s personal damages claim is not moot (and the Court should not venture into the thicket of mootness doctrine as applied to FSLA collective actions).
Alternatively, the government argues that the question of Symczyk’s refusal to accept the offer of judgment is so antecedent to the Article III mootness concerns, that if the Court decides not to examine the Rule 68 issue, the Court should dismiss the grant of certiorari as improvidently granted.
If the Court does undertake assessment of mootness doctrines as applied in the FSLA context, the Court will have to consider whether to extend class action mootness jurisprudence to the FSLA context. To accomplish this, the Court will have to evaluate whether Rule 23 class action procedure is so significantly different from FSLA procedure as to render class action mootness doctrines inapplicable to FSLA collective actions. Clearly, the Third Circuit did not view the Rule 23 and FSLA procedural contexts significant enough to require different mootness doctrines.
The Symczyk appeal implicates important policy considerations about collective actions and litigation efficiencies. Various amici representing corporate and business interest in support of the Defendants contend that Rule 68 offers of judgment support the policy in favor of settlement of claims, curtailing runaway litigation, and conserving private and judicial resources.
On the other hand, Public Citizen, which is joined on Symczyk’s appellate brief, stress that reversal of the Third Circuit’s decision would encourage defendants to manipulate FSLA actions by picking-off individual named plaintiffs and thereby undermine and defeat the remedial purposes of the FSLA. To the extent that the Supreme Court has frowned on such practices in the class action context, Symczyk and her supporters encourage the Court to affirm the Third Circuit’s decision that would permit FSLA actions to continue even after a plaintiff’s claim has been mooted by an offer of judgment.
Keywords: Class actions, Fair Labor Standards Act, Supreme Court, mootness, offer of judgment, improvidently granted certiorari
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