Supreme Court Rules Presumptively Mooted Individual Claim Precludes Named Plaintiff From Pursuing Collective Action Under FLSA -- But Expressly Fails To Address the Predicate Question Whether An Unaccepted OJ For Full Relief Moots An FLSA Claim

Today, the United States Supreme Court ruled that a named plaintiff in a purported FLSA collective action cannot continue to litigate the collective action after her claim is resolved/mooted.  See Genesis Healthcare Corp. et al. v. Symczyk, 2013 U.S. LEXIS 3157, No. 11-1059 (April 16, 2013).  While that might make sense if the plaintiff voluntarily elected to conclude the litigation; that is not what happened in the underlying litigation.  In Symczyk, the plaintiff did not agree to resolve her claim.  To the contrary, the employee-plaintiff did not accept the employer-defendant's offer of judgment pursuant to Fed. R. Civ. P. 68.  However, because the plaintiff-employee, in the lower courts, appears to have accepted as true the unresolved legal principle -- that an unaccepted offer that fully satisfies a plaintiff's claim is sufficient to render the claim moot -- the United States Supreme Court "assume[d], without deciding that petitioners' Rule 68 offer mooted respondent's individual claim."    

The puzzling part, of course, is that the Supreme Court expressly declined to address this critical predicate question -- whether an unaccepted offer of judgment pursuant to Fed. R. Civ. P. 68 for full relief of an individual's FLSA claim could moot the claim and collective action. 

The four-Justice dissent, penned by Justice Kagan, sharply criticized the majority decision's blind acceptance of the lower court's assumption that an unaccepted OJ for full relief moots an FLSA claim.  Justice Kagan expressed incredulity at the Court's majority decision -- "[t]he Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it."  Justice Kagan noted further: 

When a plaintiff rejects such an offer -- however good the terms -- her interest in the lawsuit remains just what it was before.  And so too does the court's ability to grant her relief.  An unaccepted settlement offer -- like any unaccepted contract offer -- is a legal nullity, with no operative effect.  As every first-year law student learns, the recipient's rejection of an offer 'leaves the matter as if no offer had ever been made.'  Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that 'an unaccepted offer is considered withdrawn'  Fed. R. Civ. P. 68(b). 

While the Majority decision may be true -- an individual who resolves her individual claim may not continue to press a collective action under the FLSA -- its decision to "assume, without deciding, that petitioners'  [unaccepted] Rule 68 offer mooted respondent's individual claim" results in that predicate and critical issue being left unresolved and with the Circuit Courts remaining in conflict or without binding precedent.  Compare Weiss v. Regal Collections, 385 F.3d 337, 340 (3rd Cir. 2004) with McCauley v. Trans Union, LLC, 402 F.3d 340, 342 (2nd Cir. 2005).  See also Zinni v. ER Solutions, Inc., 692 F.3d 1162 (11th Cir. 2012) ("We need not decide whether an offer of full relief, even if rejected, would be enough to moot a plaintiff's claims.")