Many thanks to the blog reader who pointed out that on June 25, in addition to granting cert. on limited issues in Comcast Corp. v. Behrend, no. 11-864, the U.S. Supreme Court also granted cert. in another case that may turn out to be relevant to class action practice, Genesis HealthCare Corp. v. Symczyk, no. 11-1059.
Genesis is a FLSA collective action, not a class action under Rule 23. The Third Circuit held that the defendant could not "pick off" the FLSA representative:
Laura Symczyk sought relief under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 207 and 216(b), on behalf of herself and all others similarly situated. The District Court for the Eastern District of Pennsylvania dismissed Symczyk's complaint for lack of subject matter jurisdiction after defendants Genesis HealthCare Corporation and ElderCare Resources Corporation extended an offer of judgment under Fed.R.Civ.P. 68 in full satisfaction of her alleged damages, fees, and costs. At issue in this case is whether a collective action brought under § 216(b) of the FLSA becomes moot when, prior to moving for "conditional certification" and prior to any other plaintiff opting in to the suit, the putative representative receives a Rule 68 offer. We will reverse and remand.
Symczyk v. Genesis HealthCare Corp., 656 F.3d 189 (3d Cir. 2011).
This is the Supreme Court's statement of the question presented:
Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.
The question is framed quite broadly, so the Court's holding may well impact ordinary class action litigation in the federal courts under Rule 23. The Ninth Circuit recently held that defendants may not "pick off" the class representative in Rule 23 class cases. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) (discussed in this blog post). The Seventh Circuit, by contrast, held that they can—if they do it before the class certification motion is filed. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011) (discussed in this blog post). Both of these opinions are cited in the cert. petition in Genesis.
The following links to documents from Genesis are courtesy of SCOTUSblog: