In Genesis HealthCare Corp. v. Symczyk (Supreme Court April 16, 2013), Ms. Symczyk claimed that her employer, Genesis HealthCare, deducted thirty minutes of time for meal breaks even when she and other unnamed employees had performed compensable work during their meal breaks. She sued Genesis on behalf of herself and, as allowed under the Fair Labor Standards Act, “all other persons similarly situated.” Along with answering Ms. Symczyk’s complaint, Genesis offered her $7,500 for her claimed unpaid wages and “such reasonable attorneys’ fees, costs, and expenses…as the Court may determine” (in the form of a Rule 68 motion); that is, everything that Ms. Symczyk would receive herself if the lawsuit continued through trial and she won. Nothing was offered for the as yet unidentified “other persons similarly situated.” The offer was good for ten days. Ms. Symczyk never responded. Genesis then asked the Court to dismiss Ms. Symczcyk’s lawsuit, including the claim on behalf of “all other person similarly situated,” because the Court now lacked jurisdiction since Ms. Symcyk’s claim was moot (that is, there was nothing left for the Court to decide since Genesis had offered to pay her everything she claimed she was owed).
As the case proceeded, everyone (including Ms. Symczyk’s counsel apparently) assumed that Ms. Symczyk’s individual claim was moot, even though she had not accepted Genesis’s offer. They all focused on whether the collective action (that is, Ms. Symcyk’s claim on behalf of “all other persons similarly situated”) also was moot. Then, the Supreme Court says this in its opinion: “While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.” In other words, since you did not ask us directly, we are not going to tell you if your assumption was correct and it may be wrong. The Court then assumes, without deciding, what everyone else assumed about Ms. Symcyk’s claim and holds that the whole suit, including the collective claim, should be dismissed. (All of which brings to mind that saying about the word “assume” that some people, for some reason, love to quote whenever anyone uses the word “assume.”) Thus, keeping alive for another day the issue of whether a Rule 68 motion that is rejected by a plaintiff in an FLSA lawsuit can moot an individual claim. (And based on Justice Kagan’s dissent, the answer appears to be no, but I do not want to assume anything.)
So, why is this opinion a job creation program for lawyers? First, based on this decision, named plaintiffs in FLSA suits now have a disincentive to accepting any offers to settle. Of course, there will be some plaintiffs who will want to take their money and run, but there also will be other plaintiffs who will not take the money if they are told that the whole lawsuit will be dismissed as a result. In other words, some plaintiffs actually do want to right a perceived wrong on behalf of their fellow employees even if it means waiting a while longer for their money. Second, since the Court refused to decide the issue as to whether an unaccepted Rule 68 motion can moot an individual’s FLSA claim, attorneys can and will continue to spend their time (and their client’s money) and the courts’ time, continuing to fight over this issue until it again reaches the Supreme Court. Third, in all probability, there will be another appeal to the Supreme Court to decided an issue that should have been decided in the Symczyk case.
In other words, in the words of Justice Kagan, “The Court could have resolved this case (along with a Circuit split, see ante, at 5, and n.3) by correcting the Third Circuit’s view that an unaccepted settlement offer mooted Symczyk’s individual claim. Instead, the Court chose to address an issue predicated on that misconception, in a way that aids no one, now or ever.”