Academic journal article Journal of Corporation Law

The Genesis Problem: How Unaccepted Offers of Judgment and Mootness Have Complicated Fair Labor Standards Act Litigation

Academic journal article Journal of Corporation Law

The Genesis Problem: How Unaccepted Offers of Judgment and Mootness Have Complicated Fair Labor Standards Act Litigation

Article excerpt

  I. INTRODUCTION  II. BACKGROUND      A. Fair Labor Standards Act         1. Section 216(b) and the Authorization of Collective Actions         2. Differences in Certification Between Section 216(b)            Collective Actions and Rule 23 Class Actions      B. Rule 68 of the Federal Rules of Civil Procedure      C. Cases Interpreting Unaccepted Offers of Judgment         1. Sosna Introduces the Relation-Back Doctrine         2. Symczyk Draws Line Between Class and Collective Actions III. ANALYSIS      A. The Symczyk Hypothetical      B. The Analytical Evolution of Section 216(b) of the Fair Labor         Standards Act         1. Hoffman-La Roche, Inc. and Symczyk Limit the Legal Status            of Conditionally-Certified Collectives         2. Section 216(b) and Rule 23 Take Separate Forks in the            Analytical Road      C. An Employer's Defense Strategy: Picking Off Plaintiffs         1. Collective or Class: Rule 68 Highlights Key Differences         2. How the Underlying Purposes of Rule 23 and Section 216(b)            Affect Their Interpretation  IV. RECOMMENDATION      A. A Plaintiff's Strategy for Avoiding Mootness      B. Path Dependency and the Court's Precedent      C. The Court Should Realign Class and Collective Actions   V. CONCLUSION 


In Genesis Healthcare Corp. v. Symczyk, the Supreme Court assumed, but never decided, that a defendant-corporation's offer of judgment mooted a plaintiff-employee's individual claim that her employer regularly deducted 30 minutes for lunch breaks, even when she and her coworkers worked during those breaks. (1) Justice Kagan dissented, arguing that the majority answered a question that should not have arisen and, in doing so, missed an opportunity to resolve a split among the Courts of Appeals. (2) Although the Court drew a brighter line between Rule 23 class actions and Fair Labor Standards Act (FLSA) Section 216(b) collective actions, (3) it left corporate employers, employees, and attorneys with questions about the sustainability of certain strategies in litigating collective actions. (4) The viability of such strategies will be more evident if the Court directly settles the underlying Symczyk issue in a future case.

This Note examines the essential issue: whether an unaccepted offer of judgment moots an individual plaintiff's FLSA Section 216(b) claim. (5) Specifically, Part II introduces the FLSA and Section 216(b)'s collective actions mechanism, Federal Rules of Civil Procedure Rule 23 and Rule 68, and courts' evolving jurisprudence regarding Rule 68 mootness in class and collective actions. Part III utilizes Justice Kagan's Symczyk hypothetical to analyze the divergent analysis federal courts have used in evaluating the effect of offers of judgment on plaintiffs' class and collective action claims. (6) Finally, Part IV recommends the Court explicitly declare a plaintiff's claim to be alive and well in the face of an unaccepted offer based on the similar purpose and structure of Rule 23 and Section 216(b).


Under Section 216(b) of the FLSA, Congress gave employees the opportunity to collectively litigate against an employer, by bringing a collective action, for violations affecting similarly situated employees. (7) This Part focuses primarily on the historical and evolving jurisprudence surrounding this section of the FLSA. Recently, the Supreme Court acknowledged lower courts' divergent treatment of the intersection of Section 216(b) collective actions, class actions under Rule 23 of the Federal Rules of Civil Procedure (FRCP), and the potential mooting effect of unaccepted FRCP Rule 68 offers of judgment. (8) To lay the foundation for the rest of the Note, the following sections will provide an overview of the FLSA and Section 216(b), FRCP Rule 23, FRCP Rule 68, and courts' handling of Rule 68 mootness principles in Section 216(b) collective actions.

A. Fair Labor Standards Act

In 1938, Congress enacted the FLSA to support "the unprotected, unorganized, and lowest paid of the nation's working population. …

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