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Genesis Healthcare Corp. v. Symczyk: A ruling that will never be used?

I don’t often enjoy reading Supreme Court rulings, but this one was fun.  I especially enjoyed Justice Kagan’s dissent, and I think she has it exactly right.

In Genesis Healthcare Corp. v. Symczyk, the Supreme Court of the United States ruled that a plaintiff whose claim was admittedly moot had no ongoing interest in continuing the litigation for the sole purpose of certifying a class of other similar employees who had similar overtime claims.  This opinion was much anticipated, but in the end, if Justice Kagan is correct, it will have no effect whatsoever on the Wage / Hour practice in this country.

Symczyk worked for Genesis Healthcare Corp. and brought a lawsuit under the Fair Labor Standards Act alleging that she and others like here were illegally denied overtime pay.  Genesis filed an offer of judgment under Rule 68 for the full value of her claim, but Symczyk did not accept it.  The case continued, but Genesis filed a motion to dismiss, arguing that her case was moot in light of the full value offer of judgment.

The trial court denied the motion and the 3d Circuit affirmed.  Their rulings, however, were not rejections of the claim that Symzcyk’s claims were moot, but instead were holdings that a Defendant cannot “pick off” a lead plaintiff in and FLSA collective action case by the use of the Rule 68 offer of judgment.  It already black letter law that such offers do not moot the claims of a Rule 23 class action representative and those courts held that FLSA collective actions are no different.

The majority, lead by Clarence Thomas, held that an FLSA representative plaintiff has no interest in the claims of the class (like a Rule 23 plaintiff), and reversed, ordering the dismissal of her claim.

Not so fast, wrote Kagan.  In a dissent that simply must be read, she wrote that the majority skipped over the threshold question of the case:  whether in fact the lead plaintiff’s claims were moot.  She wrote that they were not and I think she is right.

Mootness, we all learned, exists when a person’s claim does not exist anymore.  In a claim for unpaid wages, this can only occur when the wages are paid – not simply when an offer to pay is made.  Accordingly, Kagan would have held that the claim of the lead plaintiff simply wasn’t moot and that the motion to dismiss should have been denied on those grounds.  She then criticized the majority for skipping this question (which it did allegedly because Symczyk waived it).

Kagan wrote:

“The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it.”

What she means is that no trial court should ever rule that a plaintiff who rejects a Rule 68 offer of judgment should have their case dismissed.  I think she is right.  In such a case, the plaintiff in fact never gets paid.  Her claim is dismissed.  How is that moot?  Rule 68 is designed to encourage litigants to accept offers, not to dismiss their claims when they don’t!  In fact, Genesis didn’t file a motion for judgment under Rule 68 because there is no such thing.  The risk a plaintiff takes when rejecting such an offer is the imposition of costs – not dismissal!

If Kagan is right, and District Courts follow her instructions, all future motions to dismiss based on mootness will be denied.  This issue will never arise again.

To me, the question is – will District Courts follow her dissent?  Well, the majority didn’t write about this issue at all.  That opinion assumed mootness based on alleged waivers below.  So, 4 of the 9 justices at the moment seem to agree that any such motions should be denied.  If this mootness question is ever presented to SCOTUS and one more joins Kagan, the rule will be that a rejection of a Rule 68 offer does not moot your case.

The practice tip for plaintiff’s lawyers is to never (and I mean never) admit that your client’s claim is moot.  Good luck!