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303
COMMENT
MOOTING THE FAIR LABOR STANDARDS ACT:
HOW OFFERS OF JUDGMENT ARE
ELIMINATING THE FLSA
COLLECTIVE ACTION
TABLE OF CONTENTS
I. INTRODUCTION ................................................................... 304
II. BACKGROUND INFORMATION .............................................. 306 A. Federal Rule of Civil Procedure 68 ............................. 306 B. Genesis Healthcare Corp. v. Symczyk ........................ 308
III. THE CIRCUIT SPLIT: VARIATIONS IN APPROACH TO
UNACCEPTED OFFERS OF JUDGMENT ................................. 312 A. Circuits That Allow Unaccepted Offers
to Moot Claims ........................................................... 312 B. Circuits That Favor Entries of Judgment
Following Unaccepted Offers of Judgment ................. 313 C. Circuits That Do Not Allow Unaccepted
Offers to Moot Claims ................................................. 314
IV. ARGUMENTS AGAINST UNACCEPTED OFFERS OF
JUDGMENT MOOTING CLAIMS ............................................ 315 A. Federal Rule of Civil Procedure 68 Does Not
Support a Finding of Mootness for
Unaccepted Offers of Judgment .................................. 315 B. Allowing Unaccepted Offers to Moot Claims
Contradicts Basic Concepts of Contract Law ............. 317
J.D. Candidate, University of Houston Law Center, 2016. This Comment
received the Beck Redden LLP Award for the Best Paper Addressing Complex Litigation
Issues. Special thanks to Ryan Myers and Professor Theodore Rave.
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304 HOUSTON LAW REVIEW [53:1
C. Finding Mootness in the Event of an Unaccepted
Offer Assumes That a Plaintiff Has Only
Monetary Interests in the Claim ................................. 317
V. MOOTNESS AND COLLECTIVE ACTION CLAIMS ................... 321 A. Neither Rule 68 nor Section 216(b) Permits
an Unaccepted Offer to Moot a Claim ......................... 324 B. Basic Concepts of Contract Law Do Not
Support Allowing Unaccepted
Offers to Moot Claims ................................................. 325 C. Allowing an Unaccepted Offer of Judgment
to Moot a Plaintiff’s Claim Assumes That
a Plaintiff’s Interests Are Limited
to Monetary Damages.................................................. 326
VI. SOLUTIONS ......................................................................... 328
VII. CONCLUSION ...................................................................... 331
I. INTRODUCTION
Federal Rule of Civil Procedure 68 allows a defendant to
make an offer of judgment to a plaintiff in order to settle a
dispute before it proceeds to trial.1 The rule provides that when
the offer of judgment includes all relief requested by the plaintiff,
and the plaintiff accepts the offer, either party can move for an
entry of judgment.2 Courts disagree, however, on what happens
when the plaintiff does not accept a defendant’s offer of judgment
that includes all requested relief.3 In some circuits, an
unaccepted offer does nothing to alter the plaintiff’s claim, and
the case proceeds unchanged.4 In other circuits, if the plaintiff
1. FED. R. CIV. P. 68; see Marek v. Chesny, 473 U.S. 1, 5 (1985) (citing Advisory
Comm. on Rules for Civil Procedure, Report of Proposed Amendments to Rules of Civil
Procedure for the District Courts of the United States, 5 F.R.D. 433, 483 note (1946))
(“The plain purpose of Rule 68 is to encourage settlement and avoid litigation.”). If a
plaintiff declines a Rule 68 offer of judgment and obtains a less favorable award at trial,
the plaintiff will be responsible for the defendant’s costs, which creates a strong incentive
for plaintiffs to consider taking the offer. Marek, 473 U.S. at 5; see also Jeffrey J. Rogers,
Note, Rule 68 and Equitable Relief—A Common Sense Solution, 35 ARIZ. L. REV. 265, 266
(1993) (explaining how this incentive works in practice).
2. FED. R. CIV. P. 68.
3. See infra Part III (describing the federal circuit split).
4. E.g., Gomez v. Campbell-Ewald Co., 768 F.3d 871, 874–75 (9th Cir. 2014), cert.
granted, 135 S.Ct. 2311 (May 18, 2015) (No. 14-857); Hooks v. Landmark Indus., Inc., No.
14-20496, 2015 WL 4760253, at *3 (5th Cir. Aug. 12, 2015); Stein v. Buccaneers Ltd.
P’ship, 772 F.3d 698, 703 (11th Cir. 2014). However, the offer of judgment still triggers
the cost-shifting aspect of Rule 68. FED. R. CIV. P. 68(d); see supra note 1.
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does not accept the offer of judgment, the defendant can move
under Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack
of subject-matter jurisdiction, and the court will dismiss the case
as moot for absence of a case or controversy.5 In a third group of
jurisdictions, courts respond to such a motion to dismiss for lack
of subject-matter jurisdiction by entering a judgment against the
defendant and awarding the plaintiff the relief that was included
in the offer.6
The different approaches to unaccepted offers implicate
significant concerns not only for individual plaintiffs, but also for
aggregate litigation.7 If a defendant is able to moot an individual
plaintiff’s claim following an unaccepted offer of judgment, the
impact of mootness only affects the individual that declined the
offer. However, in the context of aggregate litigation, particularly
collective actions brought under the Fair Labor Standards Act
(FLSA), the mooting of the initial plaintiff’s claim can operate to
extinguish the interests of an entire potential class of claimants.8
Such a result is completely at odds with the intention of the
FLSA statute,9 and perfectly demonstrates the error of allowing
unaccepted offers to moot claims.10
In 2013, Genesis Healthcare Corp. v. Symczyk presented the
question of unaccepted offers of judgment mooting claims to the
United States Supreme Court.11 But the Court declined to resolve
the question.12 Justice Thomas, writing for the majority,
indicated that the question was not at issue before the Court.13
By declining to resolve the issue, the Supreme Court has left the
circuit split unresolved14 and the future of FLSA collective
actions uncertain.15
This Comment discusses the Symczyk decision and the
current state of offers of judgment among the various circuits.
5. E.g., Samsung Elecs. Co. v. Rambus, Inc., 523 F.3d 1374, 1379–81 (Fed. Cir.
2008); Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004).
6. E.g., Hartis v. Chi. Title Ins. Co., 694 F.3d 935, 949 (8th Cir. 2012); O’Brien v.
Ed Donnelly Enters., Inc., 575 F.3d 567, 575 (6th Cir. 2009).
7. See infra Parts IV–V (describing how allowing unaccepted offers of judgment to
moot claims disserves individual plaintiffs as well as FLSA collective action classes).
8. See infra Part V (explaining how allowing unaccepted offers of judgment to moot
claims will allow defendants to extinguish FLSA classes before they form).
9. See infra notes 207–13 and accompanying text.
10. See infra Part V.
11. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013).
12. Id. at 1528–29.
13. Id.
14. See infra Part III (detailing the circuit split).
15. See infra Part V.
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306 HOUSTON LAW REVIEW [53:1
The Comment then outlines three arguments against allowing
offers of judgment to moot claims: (1) the Federal Rules of
Civil Procedure do not expressly or implicitly contemplate that
unaccepted offers can moot a plaintiff’s claim; (2) allowing
unaccepted offers to alter the plaintiff’s legal status
contradicts basic concepts of contract law; and (3) a finding of
mootness assumes that the plaintiff only had monetary
interests in pursuing the claim. The Comment presents these
arguments in the context of both individual plaintiffs and
collective action classes. The Comment concludes by
presenting potential solutions to this issue, namely an
amendment to Rule 68 or resolution of the circuit split by the
Supreme Court.
II. BACKGROUND INFORMATION
A. Federal Rule of Civil Procedure 68
Before discussing the Symczyk decision, it is important to
understand how Rule 68 offers of judgment operate to moot
claims by eliminating a federal court’s jurisdiction.
Jurisdiction of federal courts is defined in the U.S.
Constitution.16 Article III, Section 2 of the United States
Constitution limits federal jurisdiction to cases and
controversies in which the litigants have an “actual
controvers[y]” at issue.17 A plaintiff that invokes federal
jurisdiction must demonstrate “a legally cognizable interest , or
[a] ‘personal stake,’ in the outcome” of the claim.18 Requiring a
plaintiff to have a legally cognizable stake in a claim ensures
that federal courts limit their judgments to “concrete” cases in
which the outcome will have a direct impact on the parties
involved.19
The case or controversy must be present for the duration of
the litigation until a final resolution is reached.20 If a party
ceases to have a “live” controversy or a legally cognizable interest
at any point in the suit, the case becomes moot.21 Mootness
speaks to a court’s subject-matter jurisdiction and is properly
16. U.S. CONST. art. III, § 2, cl. 1.
17. Id.; Symczyk, 133 S. Ct. 1523, 1528 (2013) (quoting Valley Forge Christian Coll.
v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)).
18. Symczyk, 133 S. Ct. at 1528 (quoting Camreta v. Greene, 131 S. Ct. 2020, 2028
(2011)).
19. Id.
20. Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013).
21. Id. (quoting Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013)).
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challenged in a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1).22
Federal Rule of Civil Procedure 68 governs offers of
judgment.23 Rule 68 provides that an offer of judgment be made
at least fourteen days in advance of the date set for trial.24 The
party to whom the offer is made may accept the offer by written
notice within fourteen days, otherwise the offer is considered
withdrawn.25 Courts will treat an offer as unaccepted if the
plaintiff fails to respond to the offer.26 Evidence that an offer was
not accepted is not admissible at trial;27 however, a plaintiff that
rejects an offer of judgment must pay the defendant’s court costs
if the amount awarded at trial is less than the amount included
in the offer.28
When a plaintiff accepts an offer of judgment, either party
may request that the court clerk enter a judgment.29 It is
customary for a defendant wishing to challenge jurisdiction
based on an offer of judgment to file a Federal Rule of Civil
Procedure 12(b)(1) motion to dismiss for mootness.30 Usually such
challenges argue that the defendant has removed any case or
22. FED. R. CIV. P. 12(b)(1); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)
(expressing that a 12(b)(6) motion to dismiss is not the proper means for dismissing a
claim for lack of standing or mootness).
23. FED. R. CIV. P. 68. Unlike a settlement offer, in an offer of judgment, a
defendant offers for a judgment to be taken against it. Maggie Coulter, Potential
Fee-Shifting Under FRCP 68 in Environmental Citizen Suits, A.B.A. ENVTL. LITIG. &
TOXIC TORTS COMMITTEE NEWSL., Aug. 2014, at 15 (quoting Offer of Judgment, BLACK’S
LAW DICTIONARY (9th ed. 2009)). Also, an offer of judgment under Rule 68 protects a
defendant by shifting the defendant’s costs to the plaintiff in the event of the plaintiff
obtaining a less favorable award at trial. FED. R. CIV. P. 68(d). A general settlement offer
provides no such protection to the defendant. Spooner v. EEN, Inc., 644 F.3d 62, 71 (1st
Cir. 2011).
24. FED. R. CIV. P. 68(a).
25. FED. R. CIV. P. 68(a)–(b). A withdrawn offer of judgment does not preclude a
later offer. FED. R. CIV. P. 68(b).
26. E.g., Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 190–91 (3d Cir.
2011), rev’d, 133 S. Ct. 1523 (2013).
27. FED. R. CIV. P. 68(b). However, a defendant may submit the unaccepted offer at
trial for the purpose of determining if the plaintiff is responsible for the defendant’s costs.
Id.
28. FED. R. CIV. P. 68(d).
29. FED. R. CIV. P. 68(a).
30. E.g., Mey v. Frontier Commc’ns Corp., No. 3:13-CV-01191-MPS, 2014 WL
6977746, at *2 (D. Conn. Dec. 9, 2014); see also White v. Ally Fin. Inc., No. 2:12-cv-00384,
2012 WL 2994302, at *2 (S.D. W. Va. July 20, 2012) (“Usually challenges to subject
matter jurisdiction based on Rule 68 offers of judgment are raised in motions to
dismiss . . . .”); Martinez v. CACH, LLC, No. 10CV1625 DMS (JMA), 2011 WL 2560251, at
*1 (S.D. Cal. June 27, 2011) (explaining that one basis for dismissing the plaintiff’s action
for lack of subject matter jurisdiction was the fact that the claim was rendered moot by
the plaintiff’s failure to accept the offer of judgment).
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308 HOUSTON LAW REVIEW [53:1
controversy from the dispute by offering the plaintiff all
monetary relief sought, regardless of whether the offer was
accepted.31
One question at the core of this issue is whether an
individual’s interest in bringing a collective action is, in itself, a
legally cognizable interest in the case.32 There is also the issue of
whether that interest alone is adequate to meet Article III
standing.33 The Symczyk Court majority and dissent both
addressed the issue of the plaintiff’s interest in representing a
class, but left the issue of mootness unanswered by declining to
address the effect of the offer of judgment on the plaintiff’s
individual claim.34
B. Genesis Healthcare Corp. v. Symczyk
In Genesis Healthcare Corp. v. Symczyk, the plaintiff, Laura
Symczyk, brought an FLSA claim against her employer, Genesis
Healthcare Corporation, over an automatic meal break deduction
policy.35 Symczyk claimed the meal break deduction policy
violated the FLSA by deducting pay of employees whether or not
they took meal breaks.36 Symczyk, a registered nurse, brought
the action on behalf of all employees subject to the meal break
deduction policy.37
In response to Symczyk’s complaint, Genesis provided
Symczyk with an offer of judgment for “$7,500.00 in alleged
unpaid wages, plus attorneys’ fees, costs and expenses as
determined by the Court.”38 Symczyk did not respond to the offer
31. E.g., Martinez, 2011 WL 2560251, at *2.
32. Compare infra Part III.A (describing courts that allow unaccepted offers to moot
claims), with infra Parts IV.C, V.C (describing how plaintiffs have non-monetary interests
in claims that cannot be satisfied by offers of judgment).
33. To meet Article III standing, a plaintiff must show that he has an actual or
imminent concrete injury that is fairly traceable to the defendant’s conduct, and that is
likely to be redressed by the court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
34. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1525, 1533 (2013). The
majority stated that the plaintiff had no interest in representing the class after her own
claim became moot. Id. at 1529. Justice Kagan, however, stated that as a long a party has
a concrete interest, no matter how small, the case has not become moot. Id. at 1533
(Kagan, J., dissenting) (quoting Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013)).
35. Symczyk v. Genesis Healthcare Corp., No. 09-5782, 2010 WL 2038676, at *1
(E.D. Pa. May 19, 2010), rev’d, 656 F.3d 189 (3d Cir. 2011), rev’d, 133 S. Ct. 1523 (2013).
36. Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 190 (3d Cir. 2011), rev’d,
133 S. Ct. 1523 (2013).
37. Symczyk, 2010 WL 2038676, at *1.
38. Symczyk, 656 F.3d at 190 (quoting Letter from James N. Boudreau, Att’y for
Defendant, to Gerald Wells, III, Att’y for Plaintiff (Feb. 18, 2010) (making an offer to the
plaintiff)).
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of judgment within the fourteen-day period permitted by Rule
68.39 Genesis subsequently filed a Rule 12(b)(1) motion to dismiss
for lack of subject-matter jurisdiction stating that the offer of
judgment mooted Symczyk’s claim by offering all relief sought in
Symczyk’s complaint.40 Symczyk opposed the motion, arguing
that courts disfavor the picking-off of lead plaintiffs in aggregate
litigation before the court has an opportunity to consider class
certification.41
The district court granted Genesis’s motion to dismiss,
concluding that Symczyk did not claim that any other claimants
had joined the action and did not dispute the completeness of
Genesis’s offer of judgment.42 The Third Circuit reversed and
remanded, not because it questioned the mooting of Symczyk’s
individual claim, but because it wanted the district court to
consider whether a motion for conditional certification would
save the collective action claim.43 The Third Circuit agreed that
picking-off lead plaintiffs could have the effect of frustrating
collective action litigation and wanted to allow Symczyk the
opportunity to make use of the relation-back doctrine.44 The
defendant appealed and the Supreme Court granted certiorari.45
The Supreme Court held the FLSA class’s claim moot
because Symczyk had failed to have any other claimants opt-in to
the class before her individual claim became moot.46 The Court
also noted that conditional certification, as recommended in the
Third Circuit remand, would not have saved the collective action
from mootness.47 Writing for the majority, Justice Thomas
39. Id. at 190–91.
40. Symczyk, 2010 WL 2038676, at *2.
41. Id. Symczyk argued that courts are skeptical of defendants using offers of
judgment to pick-off representative plaintiffs in both Rule 23 and FLSA classes. Id.
42. Id. at *4.
43. Symczyk, 656 F.3d at 201.
44. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1527–28 (2013). The
relation-back doctrine describes a court’s determination that a certified class’s standing
relates back to the time of the lead plaintiff’s filing, even if the lead plaintiff’s individual
claim became moot before certification occurred. Sosna v. Iowa, 419 U.S. 393, 402 n.11
(1975). Courts will allow class certification to relate-back to the time of the lead plaintiff’s
filing if the court finds that there was no undue delay in the filing of the motion for class
certification. Weiss v. Regal Collections, 385 F.3d 337, 348 (3d Cir. 2004).
45. Symczyk, 133 S. Ct. at 1526.
46. Id. at 1529 (“[T]he mere presence of collective-action allegations in the
complaint cannot save the suit from mootness once the individual claim is satisfied.”).
47. Id. at 1530. The Court indicated that previous precedent on conditional
certification was inapplicable to Symczyk’s claim because that precedent was limited to
situations in which the underlying individual claim was not moot. Id. The Court also held
that Symczyk could not maintain the collective action independently from her individual
claim because, unlike Rule 23 classes, FLSA classes do not achieve independent legal
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310 HOUSTON LAW REVIEW [53:1
explained that the Court did not need to address the finding of
mootness for Symczyk’s individual claim because it was not at
issue before the Court.48
Justice Kagan’s dissent, joined by Justices Ginsburg, Breyer
and Sotomayor, criticized the majority for failing to reach the
issue of mootness for the individual claim.49 Justice Kagan laid
out a detailed explanation of why unaccepted offers of judgment
should not be permitted to moot a plaintiff’s claim.50 Justice
Kagan also advised the Third Circuit to reconsider its approach
to unaccepted offers and warned all courts against following the
Third Circuit.51
The post-Symczyk status of unaccepted offers and mootness
varies among the circuits.52 Some circuits continue to allow
unaccepted offers to moot plaintiffs’ claims.53 Other circuits have
followed Justice Kagan’s guidance, finding that unaccepted offers
do not moot a plaintiff’s claims.54 In both categories, there are
courts that rely on the option of entering a judgment against the
defendant.55
status at certification. Id. The Court explained that conditional certification under the
FLSA statute does not create independent legal status for the class because the “sole
consequence” of certification of an FLSA claim is that the plaintiff can send notice to
prospective claimants who will only become party to the class by affirmatively opting-in.
Id.
48. Id. at 1528–29. (explaining that Symczyk failed to raise any argument against
the mooting of her individual claim in her response to Genesis’ petition for certiorari).
49. Id. at 1532–33 (Kagan, J., dissenting).
50. Id. at 1533–34 (“An unaccepted settlement offer—like any unaccepted contract
offer—is a legal nullity, with no operative effect.”).
51. Id. at 1534 (“[T]o the Third Circuit: Rethink your mootness-by-unaccepted-offer
theory. And a note to all other courts of appeals: Don’t try this at home.”).
52. Perez v. Pinon Mgmt., Inc., No. 12-cv-00653-RM-MEH, 2013 WL 9853508, at *8
(D. Colo. July 1, 2013), adopted in part, No. 12-cv-00653-RM-MEH, 2014 WL 5596261 (D.
Colo. Nov. 4, 2014).
53. See infra notes 68–71 and accompanying text.
54. See infra Part III.C.
55. See infra Part III.B. Some circuits that allow unaccepted offers to moot claims
think the appropriate course of action is to enter a judgment against the defendant and
award the plaintiff the amount that was included in the offer. See infra notes 72–76 and
accompanying text. While, on the other side of the split, some circuits that find that
unaccepted offers cannot moot plaintiffs’ claims have latched on to language in Justice
Kagan’s dissent as leaving open an option for entries of judgment. Perez, 2014 WL
5596261, at *7. Justice Kagan did indicate that an entry of judgment might be warranted
where a “plaintiff’s obstinacy or madness” is the only bar to the plaintiff’s recovery.
Symczyk, 133 S. Ct. at 1536 (Kagan, J., dissenting). As the rest of Justice Kagan’s dissent
advocates against mootness for unaccepted offers, it is unclear what circumstances she
envisioned falling into this “madness” exception. See, e.g., Aderhold v. Car2go N.A., LLC,
No. C13-489RAJ, 2014 WL 794805, at *2 (W.D. Wash. Feb. 27, 2014) (citing Diaz v. First
Am. Home Buyers Prot. Corp., 732 F.3d 948, 955 (9th Cir. 2013)) (discussing how the facts
in Diaz and Aderhold were inadequate to raise to Justice Kagan’s caveat for “madness”).
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The impact of the Symczyk decision is that Rule 68 mootness
remains unclear to litigants.56 By sidestepping the issue of
whether unaccepted offers moot claims, the Court left the circuits
to try to decide whether to treat the majority holding as
condoning the Third Circuit’s approach57 or to follow Justice
Kagan’s guidance.58 This Comment advocates the latter
approach. Allowing offers of judgment to moot plaintiffs’ claims
creates a powerful tool for defendants to end litigation without
any consent from the plaintiffs.59 Yet, the bigger concern is the
implication for collective action litigation.60 At present, a Rule 23
class action class, after certification, enjoys a separate legal
status from that of the individual plaintiff that initially brought
the action.61 The Symczyk Court failed to recognize such a status
for collective action classes.62 Thus, if unaccepted offers of
judgment are allowed to moot plaintiffs’ claims, a defendant will
always be able to avoid a collective action by picking off each
subsequent claimant.63
The remainder of this Comment outlines the circuit split
regarding unaccepted offers, presents three arguments against
allowing unaccepted offers to render claims moot, and discusses
why these arguments become even more compelling in the
collective action context.
56. Brandon T. McDonough, Subject Matter Jurisdiction Peek-a-Boo: The Confusing
State of Rule 68, 70 BENCH & B. MINNESOTA, Sept. 2013, at 19, 20.
57. Jeffrey M. Hirsch, The Supreme Court’s 2012-2013 Labor and Employment Law
Decisions: The Song Remains the Same, 17 EMP. RTS. & EMP. POL’Y J. 157, 185 (2013)
(“There is a real concern that courts will take Symczyk as an invitation to follow the Third
Circuit’s mootness holding.”).
58. Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698, 703 (11th Cir. 2014) (citing
Symczyk, 133 S. Ct. at 1533–34 (Kagan, J., dissenting)); Diaz, 732 F.3d at 954 (citing
Symczyk, 133 S. Ct. at 1533 (Kagan, J., dissenting)).
59. Ian H. Fisher, Federal Rule 68, a Defendant’s Subtle Weapon: Its Use and
Pitfalls, 14 DEPAUL BUS. L.J. 89, 113 (2001).
60. A collective action is distinct from a class action. As the Fifth Circuit explained:
There is a fundamental, irreconcilable difference between the class action
described by Rule 23 and [a collective action]. In a Rule 23 proceeding a class is
described; if the action is maintainable as a class action, each person within the
description is considered to be a class member and, as such, is bound by
judgment, whether favorable or unfavorable, unless he has “opted out” of the suit.
Under [section] 16(b) of FLSA . . . no person can become a party plaintiff and no
person will be bound by or may benefit from judgment unless he has affirmatively
“opted into” the class; that is, given his written, filed consent.
LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975).
61. Symczyk, 133 S. Ct. at 1530. Though, the circuits disagree about the point in
certification at which that legal status is created. Hendricks v. Inergy, L.P., No.
4:12CV00069 JLH, 2013 WL 6984634, at *5 (E.D. Ark. July 18, 2013).
62. Symczyk, 133 S. Ct. at 1530.
63. Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1050 (5th Cir. 1981).
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312 HOUSTON LAW REVIEW [53:1
III. THE CIRCUIT SPLIT: VARIATIONS IN APPROACH TO
UNACCEPTED OFFERS OF JUDGMENT
Generally, the circuit split can be categorized by three potential
outcomes for the plaintiff. There are courts that do not allow
unaccepted offers to moot claims64 and, by contrast, courts that treat
unaccepted offers as removing any case or controversy from the
plaintiff’s claim.65 There is also a third category that overlaps
somewhat with the other two in which courts favor entering a
judgment for the plaintiff in the event of an unaccepted offer.66 The
following section of this Comment outlines the circuit split on this
issue and discusses how some courts have reacted to the Supreme
Court’s recent decision in Genesis Healthcare Corp. v. Symczyk.67
A. Circuits That Allow Unaccepted Offers to Moot Claims
The Third, Fourth, and Federal Circuits have generally
allowed unaccepted offers of judgment to moot claims.68 The
Third and Federal Circuits have dismissed cases as moot based
on an unaccepted offer of judgment.69 The Fourth Circuit has also
held that a full offer of judgment to a plaintiff, even if not
accepted, removes a controversy from the claim, though the court
did not specifically reference Rule 68.70 Courts in these circuits
generally hold that an offer of complete relief removes any
controversy to be litigated.71
64. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014), cert. granted,
135 S.Ct. 2311 (May 18, 2015) (No. 14-857); Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698,
703 (11th Cir. 2014).
65. See Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 201 (3d Cir. 2011),
rev’d on other grounds, 133 S. Ct. 1523 (2013); Samsung Elecs. Co., Ltd. v. Rambus, Inc.,
523 F.3d 1374, 1379–80 (Fed. Cir. 2008); Zimmerman v. Bell, 800 F.2d 386, 390 (4th Cir.
1986).
66. See Stein, 772 F.3d at 703 (demonstrating the circuit split); Hartis v. Chicago
Title Ins. Co., 694 F.3d 935, 949 (8th Cir. 2012) (reasoning that the intermediate approach
of entering judgment in accordance with Rule 68 is the better approach); O’Brien v. Ed
Donnelly Enters., Inc., 575 F.3d 567, 575 (6th Cir. 2009); McCauley v. Trans Union,
L.L.C., 402 F.3d 340, 342 (2d Cir. 2005).
67. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013).
68. See Symczyk, 656 F.3d at 201; Samsung Elecs. Co., Ltd., 523 F.3d at 1379–80;
Zimmerman, 800 F.2d at 390.
69. Symczyk, 656 F.3d at 201; Samsung Elecs. Co., Ltd., 523 F.3d at 1379–80.
70. Zimmerman, 800 F.2d at 390. The Fourth Circuit also noted in dicta that an
unaccepted offer of judgment under Rule 68 would moot a plaintiff’s claim. Warren v.
Sessoms & Rogers, P.A., 676 F.3d 365, 371–72 (4th Cir. 2012). The Warren court was
discussing an unaccepted offer of judgment that it considered incomplete. Id. at 372–73.
Had the offer of judgment been complete, the court remarked, it would have mooted the
plaintiff’s claim. Id. at 372.
71. Warren, 676 F.3d at 371 (“When a Rule 68 offer unequivocally offers a plaintiff
all [requested relief,] the offer renders the plaintiff’s action moot.”); Weiss v. Regal
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B. Circuits That Favor Entries of Judgment Following
Unaccepted Offers of Judgment
The Second, Sixth, and Eighth Circuits have demonstrated a
preference for entries of judgment in the event of an unaccepted
offer of judgment.72 The Sixth and Eighth Circuits have held that
unaccepted offers can moot a plaintiff’s claim, but these circuits
call for entry of judgment against the defendant in such
situations rather than dismissing the claim outright and leaving
the plaintiff without any relief.73 These circuits recognize the
judicial efficiency of treating an offer of complete relief, even if
not accepted, as removing any controversy from the claim.74 But
these circuits also recognize that awarding relief to the plaintiff
is the most equitable resolution of the situation.75 Neither circuit
has ruled on the issue since Symczyk.76
On the other hand, the Second Circuit has held that an
unaccepted offer of judgment is inadequate to render a claim
moot, but is adequate to warrant an entry of judgment for the
amount that was included in the offer.77 The Second Circuit has
stated that prior to an entry of judgment, when a defendant is
not obligated to pay the plaintiff, there is still a controversy for
the court to resolve.78 Only when the court enters the judgment
Collections, 385 F.3d 337, 342 (3d Cir. 2004) (“An offer of complete relief will generally
moot the plaintiff’s claim, as at that point the plaintiff retains no personal interest in the
outcome of the litigation.”).
72. Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 949 (8th Cir. 2012); O’Brien v. Ed
Donnelly Enters., Inc., 575 F.3d 567, 575 (6th Cir. 2009); McCauley v. Trans Union,
L.L.C., 402 F.3d 340, 342 (2d Cir. 2005). These courts differ, however, on whether the
judgment is entered pursuant to Rule 68 or under Rule 55. Compare Hartis, 694 F.3d at
949 (entering judgment under Rule 68), with McCauley, 402 F.3d at 342 (entering a
default judgment under Rule 55).
73. Hartis, 694 F.3d at 949; O’Brien, 575 F.3d at 575.
74. See Marek v. Chesny, 473 U.S. 1, 10–11 (1985) (noting that the docket-clearing
effect of Rule 68 is not at odds with civil rights claims).
75. O’Brien, 575 F.3d at 575 (describing an entry of judgment as a “better approach”
than the plaintiff receiving nothing).
76. Since Symczyk, the Sixth Circuit has cited its earlier decision in O’Brien in dicta
on a related issue, suggesting that the O’Brien holding remains unaltered for the circuit.
Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564, 567 (6th Cir. 2013). A Sixth Circuit
district court has also followed O’Brien in the time since Symczyk. Mey v. N. Am.
Bancard, LLC, No. 14-CV-11331, 2014 WL 6686773, at *3 (E.D. Mich. Nov. 26, 2014). The
Eighth Circuit has not addressed the issue since the Symczyk decision, but a district court
in that circuit followed the precedent of the Eighth Circuit’s decision in Hartis after
Symczyk. Hendricks v. Inergy, L.P., No. 4:12CV00069 JLH, 2013 WL 6984634, at *5 (E.D.
Ark. July 18, 2013).
77. McCauley, 402 F.3d at 342.
78. Id.
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obligating the defendant to pay is the controversy removed.79 The
Second Circuit has cited its own precedent on this issue since the
Symczyk decision, though it acknowledged that other circuits do
not follow its approach.80
C. Circuits That Do Not Allow Unaccepted Offers to Moot Claims
The First, Fifth, Seventh, Ninth, and Eleventh Circuits have
held that unaccepted offers of judgment cannot render claims
moot.81 The Tenth Circuit has not addressed the issue, but district
courts in that circuit have held that unaccepted offers cannot moot
claims.82 These courts provide a variety of explanations for rejecting
mootness in response to unaccepted offers of judgment. Part IV
explores three main arguments in opposition to finding mootness
following unaccepted offers of judgment.
The Fifth and Seventh Circuits, which previously held that
unaccepted offers can moot claims,83 have only recently adopted
the opposite approach.84 Immediately after Symczyk, the Seventh
Circuit maintained its previous precedent, but acknowledged
that there might be reason to reconsider its position after
79. Id.
80. Cabala v. Crowley, 736 F.3d 226, 228–29 n.2 (2d Cir. 2013) (noting the conflict
between the Second Circuit approach and the approaches advocated by the Ninth Circuit
and Justice Kagan); see also Tanasi v. New All. Bank, 786 F.3d 195, 199–201 (2d Cir.
2015) (reaffirming McCauley and Cabala as the established law of the Second Circuit).
81. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014), cert. granted,
135 S.Ct. 2311 (May 18, 2015) (No. 14-857); Bais Yaakov of Spring Valley v. ACT, Inc.,
No. 14-1789, 2015 WL 4979406, at *5 (1st Cir. Aug. 21, 2015); Hooks v. Landmark Indus.,
Inc., No. 14-20496, 2015 WL 4760253, at *3 (5th Cir. Aug. 12, 2015); Chapman v. First
Index, Inc., No. 14-2773, 2015 WL 4652878, at *2–3 (7th Cir. Aug. 6, 2015); Stein v.
Buccaneers Ltd. P’ship, 772 F.3d 698, 703 (11th Cir. 2014). In Stein, the Eleventh Circuit
indicated that had it not followed the Symczyk dissent, it would have required an entry of
judgment for the plaintiff, as advocated in the Second Circuit McCauley opinion. Stein,
772 F.3d at 703 (“We agree with the Symczyk dissent. But even if we did not, we would be
unable to affirm the dismissal of the plaintiffs’ claims without the entry of judgment for
the amount of the Rule 68 offers.”).
82. Delgado v. Castellino Corp., No. 13-cv-02834-RBJ-CBS, 2015 WL 273838, at *1–
2 (D. Colo. Jan. 20, 2015); Perez v. Pinon Mgmt., Inc., No. 12-cv-00653-RM-MEH, 2014
WL 5596261, at *7 (D. Colo. Nov. 4, 2014). The Tenth Circuit has addressed the issue on
narrower grounds, holding that an offer of judgment to a named plaintiff is insufficient to
moot a class action claim, but declined to address mootness in the context of an individual
plaintiff. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1243, 1249–50
(10th Cir. 2011).
83. Damasco v. Clearwire Corp., 662 F.3d 891, 895 (7th Cir. 2011); Sandoz v.
Cingular Wireless LLC, 553 F.3d 913, 919 (5th Cir. 2008).
84. Hooks v. Landmark Indus., Inc., No. 14-20496, 2015 WL 4760253, at *3 (5th Cir.
Aug. 12, 2015); Chapman v. First Index, Inc., No. 14-2773, 2015 WL 4652878, at *3 (7th
Cir. Aug. 6, 2015).
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Symczyk.85 And in 2015, the Seventh Circuit overruled its
previous holdings on offers of judgment and mootness, citing
Justice Kagan’s Symczyk dissent.86 Similarly, the Fifth Circuit
expressed some indication of reconsidering its position after the
Symczyk decision was published,87 but only formally changed its
approach in 2015.88
IV. ARGUMENTS AGAINST UNACCEPTED OFFERS OF JUDGMENT
MOOTING CLAIMS
There are three arguments against unaccepted offers of
judgment mooting plaintiffs’ claims: (1) the Federal Rules of Civil
Procedure do not expressly or implicitly contemplate that
unaccepted offers can moot a plaintiff’s claim; (2) allowing
unaccepted offers to alter the plaintiff’s legal status contradicts
basic concepts of contract law; and (3) a finding of mootness
assumes that the plaintiff only had monetary interests in
pursuing the claim.
A. Federal Rule of Civil Procedure 68 Does Not Support a
Finding of Mootness for Unaccepted Offers of Judgment.
The first argument against unaccepted offers mooting claims
is that Rule 68 does not expressly or implicitly contemplate such
an outcome. Rule 68 contains no express or implied authorization
to allow unaccepted offers of judgment to moot claims.89 The rule
does mention unaccepted offers, but only to explain that
85. Scott v. Westlake Servs. LLC, 740 F.3d 1124, 1126 n.1 (7th Cir. 2014) (“The
circuit split remains, but there are reasons to question our approach to the
problem . . . . [The plaintiff] does not challenge our circuit's view, so we will continue to
await a resolution of the split.”).
86. Chapman, 2015 WL 4652878, at *3 (discussing, however, that an unaccepted
offer of judgment may serve as an affirmative defense even if not a jurisdictional bar).
87. See Payne v. Progressive Fin. Servs., Inc., 748 F.3d 605, 608 n.1 (5th Cir. 2014)
(“Because we find Progressive's offer incomplete, we need not decide whether a complete
offer of judgment would have rendered Payne's claims moot.”). After noting that it did not
need to decide the issue, the Fifth Circuit cited the various approaches in the Third,
Fourth, and Ninth Circuits, as well as the section of Symczyk opinion declining to resolve
the issue. Id. The Fifth Circuit did not, however, cite to its previous precedent on the
issue, suggesting it may look beyond its own holdings should the issue arise in the future.
See id.
88. Hooks, 2015 WL 4760253, at *3 (citing the Ninth and Eleventh Circuits, as well
as Justice Kagan’s Symczyk dissent, in holding that an unaccepted offer of judgment is a
legal nullity).
89. See FED. R. CIV. P. 68; see also Diaz v. First Am. Home Buyers Prot. Corp., 732
F.3d 948, 954–55 (9th Cir. 2013) (declining to find mootness following an unaccepted offer
of judgment because that conclusion is “consistent with the language, structure and
purposes of Rule 68”).
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(1) unaccepted offers are considered withdrawn, (2) evidence of
unaccepted offers is not admissible at trial, and (3) unaccepted
offers can operate to stop the accrual of costs at the date of the
offer in the event that the plaintiff ultimately obtains a judgment
that is less favorable than the relief in the offer of judgment.90
Some courts have pointed to the rule’s instruction that
unaccepted offers are considered withdrawn as evidence that the
rule does not contemplate an unaccepted offer doing anything to
alter the legal status of the plaintiff or the plaintiff’s claim.91
As discussed in Part III.B, some courts have decided that the
best response to unaccepted offers is to enter a judgment against
the defendant and award the plaintiff the relief that was
included in the defendant’s offer of judgment.92 The Symczyk
dissent criticizes this approach, arguing that Rule 68 only
contemplates a judgment being entered when the plaintiff
accepts the offer.93
The Symczyk dissent also points out that Rule 68 expressly
prohibits a court from considering an unaccepted offer for any
reason other than determining costs in the event of a less
favorable judgment for the plaintiff at trial.94 Justice Kagan’s
dissent points to this restriction as an indication that Rule 68
prohibits consideration of an unaccepted offer other than in that
limited circumstance.95
90. FED. R. CIV. P. 68.
91. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1533–34 (2013) (Kagan,
J., dissenting); Diaz, 732 F.3d at 954 (quoting Symczyk, 133 S. Ct. at 1533 (Kagan, J.,
dissenting)).
92. McCauley v. Trans Union, L.L.C., 402 F.3d 340, 340, 342 (2d Cir. 2005)
(remanding the case with instructions to enter a default judgment against the defendant
and award statutory damages and costs to a pro se plaintiff); O’Brien v. Ed Donnelly
Enters., Inc., 575 F.3d 567, 575 (6th Cir. 2009) (acknowledging that it followed the
guidance of the Second Circuit in adopting the practice of entering a default judgment
against the defendant in order to allow some recovery for the plaintiff).
93. Symczyk, 133 S. Ct. at 1536 (Kagan, J., dissenting) (citing FED. R. CIV. P. 68).
Justice Kagan generally takes issue with this approach, stating that courts have no
“inherent authority” to force unwanted judgments on plaintiffs. Id. However, Justice
Kagan does acknowledge that courts have authority to enter a judgment where the
“plaintiff’s obstinacy or madness” is the only obstacle to the plaintiff receiving full
recovery. Id.
94. Id. Some courts have interpreted Rule 68 as allowing consideration of unaccepted
offers for the purpose of determining subject-matter jurisdiction. O’Brien, 575 F.3d at 574 (“[A]
district court can consider an offer of judgment to determine whether a claim is moot, in order
to ascertain whether there is a justiciable case or controversy under Article III of the
Constitution. . . . [A]n offer of judgment cannot be used to support or challenge the merits of a
claim and to thereby influence the trier of fact.” (emphasis added)).
95. Symczyk, 133 S. Ct. at 1536 (Kagan, J., dissenting).
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B. Allowing Unaccepted Offers to Moot Claims Contradicts Basic
Concepts of Contract Law.
The second argument against unaccepted offers mooting
claims is that contract law instructs that unaccepted offers are
withdrawn and do nothing to alter the status of the parties.96
This argument focuses on the fact that offers of judgment are
generally reviewed using principles of contract law.97
Accordingly, an unaccepted offer of judgment operates exactly
like an unaccepted offer to contract.98 Thus, allowing an
unaccepted offer to change the legal status of the plaintiff
contradicts basic contract law.99 Nothing in Rule 68 or the other
Federal Rules of Civil Procedure indicates that Rule 68 should be
read to contradict basic contract law.100
C. Finding Mootness in the Event of an Unaccepted Offer
Assumes That a Plaintiff Has Only Monetary Interests in the
Claim
The third argument against unaccepted offers mooting
claims is that plaintiffs have non-monetary interests in litigation
that cannot be satisfied by an offer of judgment for all of the
96. See id. at 1533 (Kagan, J., dissenting).
97. Fisher, supra note 59, at 95 (“Courts generally construe offers of judgment in
accordance with contract law.”); Channing J. Turner, Comment, Too Late to Stipulate:
Reconciling Rule 68 with Summary Judgments, 81 U. CHI. L. REV. 361, 369 (2014)
(remarking that Rule 68 offers operate like option contracts). Indeed, there are many
instances of courts invoking contract law to decide disputes related to offers of judgment.
E.g., Nordby v. Anchor Hocking Packaging Co., 199 F.3d 390, 392 (7th Cir. 1999)
(analogizing to contract law to find that an unambiguous offer of judgment did not
constitute a counteroffer); Stewart v. Prof’l Computer Ctrs., Inc., 148 F.3d 937, 939 (8th
Cir. 1998) (using contract law to discuss offer and acceptance of a Rule 68 offer of
judgment); Mallory v. Eyrich, 922 F.2d 1273, 1279 (6th Cir. 1991) (using contract law to
determine if an offer has been properly accepted); Frazier v. Harris, 218 F.R.D. 173, 174
(C.D. Ill. 2003) (“Because Rule 68 is designed to facilitate settlement agreements, the
validity of a Rule 68 offer is generally determined by analogy to contract law.”).
98. Symczyk, 133 S. Ct. at 1533 (Kagan, J., dissenting). Justice Kagan describes an
unaccepted offer of judgment as a “legal nullity” that has no effect and leaves the parties
as though the offer had never been made. Id. at 1533–34.
99. Id. at 1533 (remarking that even first-year law students understand the manner
in which an unaccepted offer operates in contract law).
100. Id. at 1534 (“Nothing in Rule 68 alters that basic principle; to the contrary, that
rule specifies that ‘[a]n unaccepted offer is considered withdrawn.’” (alteration in original)
(quoting FED. R. CIV. P. 68(b))). The applicability of contract law to unaccepted offers is
supported by the fact that courts generally apply contract law principles to Rule 68
disputes other than challenges of mootness. Whitehouse v. Target Corp., 279 F.R.D. 285,
287, 290 (D.N.J. 2012) (finding an offer of judgment was not accepted when the plaintiff
tried to accept the offer after it expired, in contradiction of basic contract law doctrine).
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relief requested in the complaint.101 This last argument is
essentially based on the notion that an offer of judgment does not
offer a plaintiff complete relief. It is important, however, to
distinguish this concept from situations in which a court
determines that an offer of judgment is incomplete.102 Generally,
courts in every circuit will decline to moot a claim if the offer of
judgment does not include all relief requested by the plaintiff.103
For example, an offer is incomplete if it does not actually satisfy
the entire monetary relief104 or injunctive relief105 included in the
plaintiff’s pleadings.
An offer is also incomplete if the court questions the
defendant’s calculation of damages106 or if the defendant offers
the plaintiff only those damages that the defendant believes the
plaintiff will receive at trial.107 In such circumstances, courts
have not allowed offers of judgment to moot the plaintiff’s claim
101. See infra notes 111–20 and accompanying text (discussing courts declining to
moot claims when offers of judgment do not satisfy the plaintiffs’ non-monetary interests).
102. Compare Barcey v. Family Video Movie Club, Inc., No. 13-10242, 2013 WL
3271036, at *4 (E.D. Mich. June 27, 2013) (denying dismissal for mootness when a
defendant’s offer of judgment included $500 for attorney’s fees and costs when the
applicable statute allowed for reasonable attorney’s fees and costs as determined by the
court), and Moreira v. Sherwood Landscaping Inc., No. 13-CV-2640 JS AKT, 2014 WL
4639126, at *5 (E.D.N.Y. Sept. 16, 2014) (denying a motion to dismiss for mootness
because the court could not determine the completeness of the offer of judgment because
there were discrepancies between the plaintiff’s and defendant’s calculations of damages),
with McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005) (ruling that an
offer stipulating judgment be confidential did not satisfy plaintiff’s interest that the
judgment be public), and Lynch v. First Nat’l Collection Bureau, Inc., No. 11-60798-CIV,
2011 WL 2457903, at *2 (S.D. Fla. June 17, 2011) (acknowledging that plaintiff may have
a non-monetary interest in having a public decision against defendant).
103. E.g., Jenkins v. Pech, 301 F.R.D. 401, 408 (D. Neb. 2014); Barcey, 2013 WL
3271036, at *4; Martin v. PPP, Inc., 719 F. Supp. 2d 967, 976 (N.D. Ill. 2010).
104. Barcey, 2013 WL 3271036, at *4 (denying dismissal for mootness when a
defendant’s offer of judgment included $500 for attorney’s fees and costs when the
applicable statute allowed for reasonable attorney’s fees and costs as determined by the
court (emphasis added)).
105. E.g., Martin, 719 F. Supp. 2d at 976 (denying dismissal for mootness because
the defendant’s offer did not include the plaintiff’s requested injunctive relief); Jenkins,
301 F.R.D. at 408 (declining to find an offer of judgment complete when the offer of
injunctive and declaratory relief was vague, though injunctive and declaratory relief were
not the only flaws the court found in the offer).
106. Moreira, 2014 WL 4639126, at *5 (denying a motion to dismiss for mootness
because the court could not determine the completeness of the offer of judgment because
there were discrepancies between the plaintiff’s and defendant’s calculations of damages).
107. E.g., Payne v. Progressive Fin. Servs., Inc., 748 F.3d 605, 606 (5th Cir. 2014).
The defendant in Payne made a Rule 68 offer of judgment that included statutory
damages, attorney’s fees, and costs, but did not include actual damages. Id. The district
court found the offer of judgment mooted the plaintiff’s claim, agreeing with the
defendant that the plaintiff had failed to plead sufficient facts to show entitlement to
actual damages. Id. at 607. The Fifth Circuit reversed the finding of mootness. Id. at 609.
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because controversy remains regarding the amount of
damages.108 In this regard, the Supreme Court has warned
against confusing “mootness with the merits,” indicating that the
availability of a particular kind of remedy for a plaintiff is a
merits issue.109
Notwithstanding that an offer of judgment may be
“complete” in providing all monetary and injunctive relief
requested, the third argument against unaccepted offers
mooting claims is that even a “complete” offer of judgment
does not resolve all of the plaintiff’s interests in pursuing the
litigation.110 For example, one court acknowledged that an
unaccepted offer of judgment did not moot the plaintiff’s claim
because the offer was stipulated on confidentiality, and the
plaintiff wanted the judgment against the defendant to be
public.111 Thus, even though the plaintiff only pleaded
monetary damages, the offer of judgment did not moot the
plaintiff’s interest in a public judgment against the
defendant.112 The Eleventh Circuit has also acknowledged that
a plaintiff may have an interest in obtaining a public
judgment against a defendant.113
108. Id. at 608. In Payne, the Fifth Circuit advised that a plaintiff’s entitlement to a
particular kind of damages is a merits issue that is properly challenged under a Rule 12(b)(6)
motion to dismiss for failure to state a claim, a Rule 12(c) motion for judgment on the
pleadings, or a Rule 56 motion for summary judgment. Id. at 608 n.2. Similarly, the Sixth
Circuit declined to find mootness following an offer of judgment when the defendant offered
only the relief that the defendant thought the plaintiff would be able to successfully prove at
trial. Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564, 565, 570 (6th Cir. 2013).
109. Chafin v. Chafin, 133 S. Ct. 1017, 1024 (2013). The Chafin Court addressed
mootness in the context of a request for a district court to order a child’s return to
Scotland when the child had already returned to Scotland with the plaintiff. Id. at 1019.
The Chafin Court did not address mootness in the context of Rule 68 offers of judgment.
See id. However, the Chafin Court’s explanation of mootness and merits has been cited by
other courts in their discussions of mootness in Rule 68 cases. See, e.g., Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1533 (2013) (Kagan, J., dissenting);
Hrivnak, 719 F.3d at 568–69; Payne, 748 F.3d at 608.
110. Symczyk, 133 S. Ct. at 1533 (Kagan, J., dissenting).
111. McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005).
112. Id. (“Unlike the settlement offer, however, the default judgment would be a
matter of public record, satisfying McCauley’s desire that the case’s disposition not be
confidential.”).
113. Danow v. Law Office of David E. Borack, P.A., 367 Fed. App’x 22, 24 (11th Cir.
2010). This case did not involve a challenge to standing, but an appeal of a district court’s
awarding attorney’s fees following an offer of judgment. Id. The defendant in Danow
challenged the awarding of attorney’s fees because the damages awarded at trial matched
the amount included in the offer of judgment. Id. at 23. The Eleventh Circuit affirmed the
trial court’s ruling because it recognized that the defendant’s offer of judgment, which
stipulated confidentiality, was less valuable than the public judgment afforded at trial. Id.
at 24. Though this case did not involve a mootness challenge, it demonstrates the court’s
acknowledgment that a plaintiff may have an interest in a public judgment. Id.
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Additionally, the Southern District of Florida recognized
that an offer of judgment by one defendant might not satisfy a
plaintiff’s interest in obtaining a judgment against multiple
defendants.114 The Florida case involved two defendants, only one
of whom made an offer of judgment to the plaintiff.115 The court
concluded that a plaintiff may have an interest in obtaining a
judgment against each defendant as a means of publically
identifying a defendant’s wrongdoing.116 The case involved
consumer protection laws, and the court acknowledged that
consumer-plaintiffs may be particularly interested in identifying
defendants engaged in unfair business practices.117
These cases demonstrate that a plaintiff’s interest is not
limited to the monetary or injunctive requests included in the
pleading. Ostensibly, a plaintiff who feels his interests are
satisfied by an offer of monetary relief would accept an offer of
judgment that provided for that relief.118 Thus, a plaintiff’s
decision to decline an offer for complete monetary relief is likely
indicative of the plaintiff having a non-monetary interest.119
Allowing an unaccepted offer to moot a claim ignores the
plaintiff’s non-monetary interests.120
There is, however, a limitation on this final argument in that
many of the interests just described would likely not
independently satisfy the requirements of Article III standing.121
114. Lynch v. First Nat’l Collection Bureau, Inc., No. 11-60798-CIV, 2011 WL
2457903, at *2 (S.D. Fla. June 17, 2011).
115. Id.
116. Id.
117. Id.
118. Cf. Clark v. Capital Credit & Collection Servs., Inc., 561 F. Supp. 2d 1213, 1217
(D. Or. 2008) (describing how the plaintiffs stipulated, in advance of an offer of judgment,
what damages the offer would need to include in order for the plaintiffs to accept it);
McCoy v. Zurich Ins. Co., 509 F. Supp. 1106, 1107 (E.D. Mich. 1981), aff’d, 703 F.2d 564
(6th Cir. 1982) (indicating plaintiffs would accept defendant’s offer of judgment if it
included interest); see also Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1536
(2013) (Kagan, J., dissenting) (“It is [a plaintiff’s] choice, and not the defendant’s or the
court’s, whether satisfaction of her individual claim, without redress of her viable
classwide allegations, is sufficient to bring the lawsuit to an end.”). Justice Kagan’s
statement suggests that if a plaintiff feels that an offer of judgment satisfies all of her
interests, she will accept the offer, and if she feels it does not satisfy her interests, she will
decline the offer in order to continue pursuing the litigation. See id.
119. Cf. Lynch, 2011 WL 2457903, at *2 (describing that a plaintiff did not accept an
offer of judgment for full monetary relief from one defendant because the plaintiff wanted
to obtain judgments against both defendants in the suit).
120. See id.
121. Article III requires that a plaintiff have an actual or imminent injury that is
caused by the defendant’s conduct and that is redressable by a court. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992).
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For example, although a court may acknowledge that a plaintiff
has an interest in a public judgment, that interest alone, absent
injury, would likely not meet the requirements of Article III
standing.122 Yet, the issue of standing for non-monetary interests
does not necessarily preclude a court’s finding that an unaccepted
offer of judgment does not moot a plaintiff’s claim, as is evident in
the cases just discussed.123 Standing and mootness are related, but
distinct inquiries.124 Thus, though standing may admittedly create
an obstacle for certain interests if brought independently, it does
not necessarily undermine the third argument regarding the
completeness of the defendant’s offer of judgment.
In sum, unaccepted offers of judgment should not moot
claims because Rule 68 does not allow it, basic contract law does
not support it, and even complete offers of judgment do not
necessarily satisfy all of a plaintiff’s interests in the claim. These
arguments demonstrate how the concept of unaccepted offers
mooting claims frustrates the intentions of individual plaintiffs.
The following section extends these arguments to the FLSA
context to show how unaccepted offers mooting claims completely
frustrates the purpose of FLSA collective actions.
V. MOOTNESS AND COLLECTIVE ACTION CLAIMS
Under the FLSA, a plaintiff can allege wage violations on
behalf of herself and other similarly situated individuals.125 The
FLSA allows the U.S. Department of Labor or private citizens to
sue in federal court for allegations such as failure to pay
minimum wage, improper payment of overtime,126 or inaccurate
time keeping of employee hours and wages.127 FLSA actions,
known as collective actions,128 are governed by 29 U.S.C 216(b)
rather than Federal Rule of Civil Procedure 23, which governs
class actions.129 There are several notable distinctions between
122. See id.
123. Supra notes 111–17 and accompanying text.
124. See generally Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 170 (2000) (describing standing and mootness as distinct inquiries that a court
conducts at different stages in the litigation).
125. 29 U.S.C. § 216(b) (2012).
126. Niki Kuckes, Designing Law School Externships That Comply with the FLSA,
21 CLINICAL L. REV. 79, 80, 85 (2014).
127. 29 U.S.C. § 211(c) (2012).
128. J. Evan Gibbs, Mooting the Mootness Issue As Moot?: Symczyk’s Impact on FLSA
Litigation in Florida and Beyond, FLA. BUS. J., July–Aug. 2013, at 38, 38.
129. G. Roger King & Jeffrey D. Winchester, Building an Internal Defense Against
Class Action Lawsuits and Disparate Impact Claims, 16 LAB. LAW. 371, 375 (2001).
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FLSA collective actions and Rule 23 class actions130 that are
relevant to the discussion of mootness. First, in collective actions,
when a plaintiff moves for conditional certification, notice is sent
to potential claimants who must affirmatively opt-in to the
action.131 A potential claimant that does not opt-in to the
collective action is not bound by the action.132 In contrast to
collective actions, Rule 23 actions are generally binding on
potential claimants unless they affirmatively opt-out of the
action.133
Second, certification of a class under Rule 23 involves a
much more rigorous analysis than certification under Section
216(b).134 This distinction relates to the fact that claimants who
are not party to or even aware of a Rule 23 class action may still
be bound by the action.135 Therefore courts must be careful when
certifying a Rule 23 class to ensure that the class will fairly
represent unknown claimants.136 By contrast, because non-class
members will not be bound by the outcome of any FLSA class,
courts need not be concerned with whether an FLSA class
representative is fairly representing the interests of unknown
potential claimants.137
Finally, certification has different implications for a Rule
23 class as compared to a Section 216(b) class.138 A putative
class certified under Rule 23 acquires a legal status separate
130. Allan G. King, Lisa A. Schreter & Carole F. Wilder, You Can’t Opt Out of the
Federal Rules: Why Rule 23 Certification Standards Should Apply to Opt-in Collective
Actions Under the FLSA, 5 FED. CTS. L. REV., no. 1, 2011, at 1, 12–14.
131. Gibbs, supra note 128, at 38. The Tenth Circuit has remarked that Congress
added the “opt-in” requirement to the FLSA statute to avoid allegations being made on
behalf of large groups of employees that had no real stake in the claim. United Food &
Commercial Workers Union v. Albertson’s, Inc., 207 F.3d 1193, 1200 (10th Cir. 2000)
(quoting Arrington v. Nat’l Broad. Co., 531 F. Supp. 498 (D.D.C. 1982)).
132. David Borgen & Laura L. Ho, Litigation of Wage and Hour Collective Actions
Under the Fair Labor Standards Act, 7 EMP. RTS. & EMP. POL’Y J. 129, 134 (2003).
133. Id. Class actions certified under Rule 23(b)(3) require claimants to affirmatively
opt-out of the action in order to not be bound by it. FED. R. CIV. P. 23. Class actions
certified under Rule 23(b)(1)(A) or (b)(2) are binding on all potential claimants, regardless
of their choice to opt-in to the action. FED. R. CIV. P. 23(b)(1)(A), (b)(2).
134. King, Schreter & Wilder, supra note 130, at 13 (describing conditional
certification of a collective action class as “lenient” as compared to Rule 23 certification).
135. Debra Lyn Bassett, When Reform Is Not Enough: Assuring More Than Merely
“Adequate” Representation in Class Actions, 38 GA. L. REV. 927, 930–36 (2004).
136. Id.
137. See King, Schreter & Wilder, supra note 130, at 13 (explaining that certification
under Section 216(b) is less rigorous than under Rule 23).
138. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013) (discussing
that, unlike collective action classes, Rule 23 classes obtain an independent legal status at
certification).
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from the status of the representative plaintiffs.139 A certified
FLSA class does not, however, acquire independent status at
the time of certification.140 For this reason, if a plaintiff in a
class action receives an offer of judgment that moots the
plaintiff’s individual claim, the class will not be mooted as long
as the class is already certified.141 By contrast, in an FLSA
action, if a plaintiff’s individual claim is mooted, even
certification of the class will not save the collective action from
mootness.142
Allowing unaccepted offers of judgment to moot FLSA
claims has serious implications for both individual FLSA
claimants and potential FLSA classes.143 If an unaccepted offer
of judgment can moot a plaintiff’s individual FLSA claim, a
defendant need only make the offer to the lead plaintiff in order
to quash the whole collective action.144 If subsequent plaintiffs
raise the same collective action claim, the defendant can
continue making offers of judgment to the new plaintiffs in
order to keep the collective action from ever realizing class
status.145 Thus, defendants are able to avoid liability to a class
of similarly injured workers by strategically picking off any
plaintiff that brings an FLSA claim.146 Allowing defendants to
avoid liability to a class directly conflicts with the purpose of
the FLSA statute.147 By creating the FLSA collective action,
Congress clearly intended that plaintiffs be able to resolve
wage claims in representative actions.148
139. Id.
140. Id.
141. Id. at 1525 (citing Sosna v. Iowa, 419 U.S. 393, 393 (1975)).
142. Id. at 1530.
143. See Amy Tabor, New and Updated Regulations Require Attorneys and Their
Clients to Implement Protective Policies, Practices, and Procedures, STRATEGIES FOR EMP.
LITIG. July 2014, at *2, 2014 WL 4160093 (advising that, following Symczyk, defendants
in jurisdictions that allow unaccepted offers to moot claims should attempt to dispose of
FLSA claims early in the litigation).
144. Nantiya Ruan, Facilitating Wage Theft: How Courts Use Procedural Rules to
Undermine Substantive Rights of Low-Wage Workers, 63 VAND. L. REV. 727, 729, 746–48 (2010).
145. Cf. Ramirez v. Trans Union, LLC, No. 3:12-CV-00632 (JSC), 2013 WL 3752591,
at *2 (N.D. Cal. July 17, 2013) (noting that a class action claim will evade review by a
court if the defendant is allowed to pick-off each subsequent lead plaintiff).
146. Ruan, supra note 144, at 729, 749.
147. Reyes v. Carnival Corp., No. 04-21861-CIV, 2005 WL 4891058, at *3 (S.D. Fla.
May 25, 2005); Ruan, supra note 144 at 730, 748–49.
148. See Craig Becker & Paul Strauss, Representing Low-Wage Workers in the
Absence of a Class: The Peculiar Case of Section 16 of the Fair Labor Standards Act and
the Underenforcement of Minimum Labor Standards, 92 MINN. L. REV. 1317, 1341 (2008)
(describing Congress’s “clear intent” that the FLSA statute facilitate “collective
enforcement”).
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Keeping this potential for picking off plaintiffs in mind, the
next section argues that unaccepted offers should not moot FLSA
claims.
A. Neither Rule 68 nor Section 216(b) Permits an Unaccepted
Offer to Moot a Claim
As previously discussed, the text of Rule 68 does not
expressly or implicitly indicate that unaccepted offers of
judgment can moot claims.149 Important to the collective action
context is that there is no language in the FLSA statute that
alters this basic fact about Rule 68.150 There is also nothing in
Rule 68 that indicates that the rule was meant to undermine the
options provided by “claim-aggregating devices” like Rule 23 or
the FLSA statute.151
Some courts have explained that Rule 68 does not expressly
exclude use of offers of judgment in aggregate litigation, and
therefore, picking off the lead plaintiff of a class does not violate
the rule.152 This argument, however, misses the mark because it
assumes that Rule 68 expressly provides that unaccepted offers
can moot claims. Rule 68 makes clear that unaccepted offers are
not admissible to a court for any purpose other than shifting
attorney’s fees in the event that the plaintiff receives less
favorable damages at trial than what were included in the offer
of judgment.153 The absence of express language in Rule 68
forbidding its use in aggregate litigation does not to alter the fact
that there is no express language in Rule 68 authorizing
unaccepted offers to moot claims.154
149. See supra Part IV.A.
150. See 29 U.S.C. § 216(b) (2012 & Supp. 2014) (making no mention of Rule 68
operating differently for classes formed under Section 216(b)).
151. Nash v. CVS Caremark Corp., 683 F. Supp. 2d 195, 196 (D.R.I. 2010) (citing
FED. R. CIV. P. 1).
152. Lucero v. Bureau of Collection Recovery, Inc., 716 F. Supp. 2d 1085, 1096
(D.N.M. 2010), rev’d, 639 F.3d 1239 (10th Cir. 2011); Clausen Law Firm, PLLC v. Nat’l
Acad. of Continuing Legal Educ., 827 F. Supp. 2d 1262, 1268 (W.D. Wash. 2010). A
proposed amendment to Rule 68 would have made it inapplicable to class actions, but the
amendment was not adopted. Comm. on Rules of Practice and Procedure of the Judicial
Conference of the U.S., Preliminary Draft of Proposed Amendments to the Federal Rules
of Appellate Procedure, Federal Rules of Civil Procedure, Federal Rules of Criminal
Procedure, and Rules Governing Section 2254 Cases and Section 2255 Proceedings in the
United States District Courts, 102 F.R.D. 407, 432–33 (1984).
153. FED. R. CIV. P. 68(b), (d).
154. See supra Part IV.A.
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B. Basic Concepts of Contract Law Do Not Support Allowing
Unaccepted Offers to Moot Claims
In the individual context, the contract argument focuses on
the manner in which offer and acceptance affect the status of the
parties. In contract law, an offer that is not accepted does
nothing to alter the status of the parties, and nothing in Rule 68
alters that basic premise.155 As Justice Kagan noted, basic
contract law provides that an unaccepted offer of judgment is a
“legal nullity” that has no effect and leaves the parties as though
the offer had never been made.156 Yet, an FLSA claimant’s status
is certainly altered when an unaccepted offer moots her claim
because her ability to pursue a collective action is also mooted.157
In the context of a collective action plaintiff, the plaintiff has
more than her personal interest at stake.158 Presumably, the
plaintiff has an interest in pursuing the claim as a collective
action.159 The intent of the FLSA statute is to allow for
aggregated claims so that each individual plaintiff does not have
to raise the claim independently.160 Effectively, the FLSA grants
plaintiffs a right to make use of the aggregating effect of the
FLSA statute.161 If a plaintiff’s claim can be mooted by an
unaccepted offer of judgment, then a defendant can unilaterally
deny a plaintiff access to the aggregating effect of the statute
simply by making an offer of judgment.162 By doing so, the
defendant is able to use the offer, though unaccepted, to alter the
status of the plaintiff.163 This outcome directly contradicts Justice
155. See supra Part IV.B.
156. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1533 (2013) (Kagan, J.,
dissenting).
157. See infra notes 158–65 (explaining the ability of an FLSA claimant to pursue a
claim on behalf of a class and the corresponding ability of defendants to moot the
potential class by making an offer of judgment to the FLSA claimant).
158. 1 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 2:15 (5th ed. 2014).
159. See Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1249 (10th Cir.
2011) (describing how a plaintiff’s “nascent” interest in the collective action attaches to
the potential class).
160. Bradford v. Bed Bath & Beyond, Inc., 184 F. Supp. 2d 1342, 1351 (N.D. Ga.
2002) (“Plaintiffs can hardly be expected to pursue these small claims individually, so
there is little likelihood that their rights will be vindicated in the absence of a collective
action.”); Ruan, supra note 144, at 730, 749.
161. See 29 U.S.C. § 216(b) (2012).
162. In some jurisdictions, the defendant will not even have to pay for this power. See
supra Part III.A (describing circuits that find that unaccepted offers of judgment moot
claims but do so without entering judgments in favor of the plaintiff).
163. E.g., Rand v. Monsanto Co., 926 F.2d 596, 597–98 (7th Cir. 1991) overruled
by Chapman v. First Index, Inc., No. 14-2773 2015 WL 46528 (7th Cir. Aug. 6, 2015)
(finding that the defendant’s offer of judgment, though unaccepted, mooted the
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Kagan’s description of an unaccepted offer as a legal nullity.164 It
also allows defendants to use Rule 68 to subvert the exact intent
of the FLSA statute to allow plaintiffs to pursue en masse what
they might not pursue independently.165
C. Allowing an Unaccepted Offer of Judgment to Moot a
Plaintiff’s Claim Assumes That a Plaintiff’s Interests Are
Limited to Monetary Damages
As described above, the circuits that allow unaccepted offers
of judgment to moot plaintiffs’ claims base this conclusion on the
idea that the offer provided all the relief sought by the plaintiff,
thus removing any controversy to be decided by the court.166 This
conclusion erroneously assumes that the specific damages sought
in the complaint are the plaintiff’s only justiciable interests.167
Conversely, other courts have recognized that the plaintiff may
have interests that keep the controversy alive.168
The FLSA statute enables a plaintiff to include in her legal
interests a desire to represent the claims of similarly situated
workers.169 Yet, because of the opt-in structure of the FLSA
collective action, a plaintiff’s interest in representing similar
claimants will not materialize until other claimants affirmatively
opt-in to the suit.170 Thus, the plaintiff’s interest in pursuing a
collective action has two unique qualities that are particularly
relevant to the mootness inquiry. One, there is no way for a
defendant to include anything in an offer of judgment that
satisfies a plaintiff’s interest in representing a collective action
class.171 Two, the plaintiff’s interest in pursuing a collective
action is necessarily an interest that requires a court’s
plaintiff’s claim and put an end to the litigation, though no relief had been granted to
the plaintiff).
164. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1533–34 (2013) (Kagan,
J., dissenting).
165. Ruan, supra note 144, at 730, 749.
166. See supra note 71 and accompanying text.
167. Bradford v. HSBC Mortg. Corp., 280 F.R.D. 257, 260 (E.D. Va. 2012) (citing
United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)) (mooting a plaintiff’s claim
following a complete offer of judgment because the court determined that the plaintiff had
no “legally cognizable interest” in the claim).
168. See supra Part IV.C.
169. See 29 U.S.C. § 216(b) (2012).
170. Scott R. Bauries, Procedural Predictability and the Employer As Litigator: The
Supreme Court’s 2012-2013 Term, 52 U. LOUISVILLE L. REV. 497, 512 (2014).
171. Workers will only be included in a collective action class if they affirmatively
opt-in into the class. § 216(b).
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jurisdiction and authority.172 Because a court must necessarily be
involved in the processes of conditional certification and notice,
the plaintiff’s interest in pursuing the class is a legally cognizable
interest.173 Given these two qualities, it is unclear how an offer of
judgment for individual monetary damages could ever eliminate
all of the legally cognizable interests of an FLSA plaintiff.
Moreover, one could assume that a plaintiff who considers
an offer of judgment to resolve all her legal interests would
accept the offer of judgment.174 As the party that decided to
pursue the claim in the first place, the plaintiff is uniquely privy
to what interests are at the heart of the claim and is, therefore,
the only party that should decide when an offer of judgment
satisfies those interests.175 Thus, it follows that a plaintiff’s
decision to reject an offer of judgment is tantamount to a plaintiff
stating that the offer of judgment did not adequately address all
of the interests of the claim.176
Also, failing to recognize that a plaintiff may have a
non-monetary interest in the FLSA claim may encourage a
plaintiff to certify a class prematurely.177 If a plaintiff is
concerned that even an unaccepted offer of judgment can moot
the collective action, a plaintiff will likely attempt to opt-in class
members, regardless of their fitness for the class, in order to
avoid the collective action failing.178 Such a practice defeats the
purpose of the FLSA statute, which Congress amended in 1947
172. See Llezlie Green Coleman, Procedural Hurdles and Thwarted Efficiency:
Immigration Relief in Wage and Hour Collective Actions, 16 HARV. LATINO L. REV. 1, 18–
19 (2013) (noting that the merits of a collective action class’s claim will only be assessed
after a court conditionally certifies the class, supervises notice to the putative class, and
then certifies a second time after claimants have opted-in).
173. See id. (describing the necessary function of a court in supervising the
certification and notice processes).
174. Cf. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1536 (2013) (Kagan,
J., dissenting). Although, even Justice Kagan agrees that in rare circumstances a court
may intervene with an entry of judgment when the plaintiff’s “madness” is the only
obstacle to relief. Id.
175. Id. (“It is [a plaintiff’s] choice, and not the defendant’s or the court’s, whether
satisfaction of her individual claim, without redress of her viable classwide allegations, is
sufficient to bring the lawsuit to an end.”).
176. See Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564, 568 (6th Cir. 2013)
(“Rule 68 does not by itself tell us whether the defendants’ offer moots the case; mootness
occurs only when the offer is accepted or the defendant indeed offers to provide every form
of individual relief the claimant seeks in the complaint.”).
177. Cf. Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, LLC, 974 F.
Supp. 2d 856, 863 (D. Md. 2013) (discussing how offers of judgment create incentive for
plaintiffs to move for certification prematurely in the class action context).
178. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1244 (10th Cir.
2011).
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specifically to avoid the inclusion of uninterested claimants in a
collective action class.179
Admittedly, the same issue with Article III standing mentioned
in Part IV.C is present in the FLSA context, too. However, there is
some indication that courts may be willing to find standing absent a
concrete injury, when a cause of action is created to redress a
statutory violation. For example, in Robins v. Spokeo, the court held
that the statutorily created cause of action created for addressing
falsely published information creates standing even if a plaintiff is
not able to produce evidence of a particularized, concrete injury that
resulted from the violation.180 The Spokeo court found that the
statute created a cause of action based on the defendant’s violation
of the law, not the plaintiff’s injury.181 To the extent that a
statutorily created cause of action can create standing absent
specific injury, a court may be willing to find that the FLSA’s
creation of a collective action mechanism to address FLSA violations
itself creates standing, even if a plaintiff’s interest in representing a
collective action class would not independently satisfy standing.
As this section demonstrates, allowing unaccepted offers of
judgment to moot claims has the potential to completely
undermine the FLSA statute and eliminate collective action
classes. The following section describes various solutions that
would resolve the circuit split and make clear that unaccepted
offers do not moot claims.
VI. SOLUTIONS
Though there is some indication that courts are
reconsidering their approach to unaccepted offers in the wake of
the Symczyk decision,182 the question of mootness would be best
resolved by a clear resolution of the circuit split.183 There are
several potential solutions to resolve the circuit split and protect
the interests of FLSA plaintiffs.
Given the opportunity, the Supreme Court should resolve what
it left unanswered in Symczyk and definitively hold that unaccepted
179. Gibbs, supra note 128, at 38.
180. Robins v. Spokeo, Inc., 742 F.3d 409, 413–14 (9th Cir. 2014), cert. granted, 135
S. Ct. 1892 (2015).
181. Id.
182. See supra notes 83–88 and accompanying text.
183. See Scott v. Westlake Servs. LLC, 740 F.3d 1124, 1126 n.1 (7th Cir. 2014)
(indicating that it would wait for resolution of the circuit split before revising its approach
of letting unaccepted offers moot claims). But see Chapman v. First Index, Inc., No.
14-2773, 2015 WL 4652878, at *2–3 (7th Cir. Aug. 6, 2015) (overruling Seventh Circuit
precedent that held that a defendant’s offer of full compensation moots the litigation).
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offers of judgment cannot moot claims.184 For this solution to
actualize, a case involving a dispute over mootness following an
unaccepted offer of judgment would have to reach the Supreme
Court on appeal.185 This means that the parties involved in such a
case would have to be willing to appeal the decision through the
circuit court and request certiorari.186 It also requires that the
Supreme Court actually decide to hear the case, as the Court only
grants certiorari for a small percentage of cases.187 But, once before
the Court, it is very possible that the Court would rule against
unaccepted offers mooting claims.188 The Justices that joined the
dissent in Symczyk would need only one more vote in order to have
a majority.189 The Court is likely to resolve the issue soon, having
granted certiorari in Campbell-Ewald Co. v. Gomez.190 Campbell-
Ewald is an appeal from a Ninth Circuit opinion holding that an
unaccepted offer of judgment does not moot a plaintiff’s claim and
does not moot the claims of the related putative class.191
Another approach would be to amend Rule 68 to expressly
indicate that unaccepted offers do not moot claims. Such an
amendment would require several stages of approval and two to
three years,192 but this approach may still be faster than waiting
184. Cf. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1537 (2013) (Kagan,
J., dissenting) (noting that the Court could have resolved the circuit split and made it
clear that offers of judgment should not moot claims).
185. See Marbury v. Madison, 5 U.S. 137, 174 (1803) (explaining that the Supreme
Court only has original jurisdiction over cases involving “ambassadors, other public
ministers and consuls, and those [cases] in which a state shall be a party”; all other cases
must reach the Supreme Court through appeal (quoting U.S. CONST. art. III, § 2, cl. 2)).
186. Cf. Bradford v. Bed Bath & Beyond, Inc., 184 F. Supp. 2d 1342, 1351 (N.D. Ga.
2002) (explaining that plaintiffs have little incentive to bring small FLSA claims
individually); Paul T. Davis, KBA Files Lawsuit Regarding Constitutionality of 1999 Law,
J. KAN. B. ASS’N, Mar. 2000, at 3, 5 (describing how small claims plaintiffs are unlikely to
have the resources or desire to pursue claims to an appellate court).
187. JOHN G. ROBERTS, JR., 2014 YEAR–END REPORT OF THE FEDERAL JUDICIARY 13–
14 (2014), http://www.supremecourt.gov/publicinfo/year-end/2014year-endreport.pdf
(reporting that the Court granted certiorari for 79 of 7,376 cases filed in 2013).
188. McDonough, supra note 56, at 19, 20.
189. Id.
190. Campbell-Ewald Co. v. Gomez, 135 S. Ct. 2311 (2015) (granting certiorari).
191. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014), cert. granted,
135 S. Ct. 2311 (2015) (“Because the unaccepted offer alone is ‘insufficient’ to moot
Gomez’s claim . . . the claim is still a live controversy. Similarly, the putative class claims
are not moot. We have already explained that ‘an unaccepted Rule 68 offer of judgment—
for the full amount of the named plaintiff’s individual claim and made before the named
plaintiff files a motion for class certification—does not moot a class action.’” (quoting Pitts
v. Terrible Herbst, Inc., 653 F.3d 1081, 1091–92 (9th Cir. 2011))).
192. Pending Rules Amendments, U.S. COURTS, http://www.uscourts.gov/RulesAnd
Policies/rules/pending-rules.aspx (last visited Sept. 18, 2015). The process involves the
recommendation of an advisory committee, then the sequential approval of the Standing
Committee on Rules of Practice and Procedure, the Judicial Conference of the United
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for the proper case to present itself to the Supreme Court.193 An
amendment would not need to alter the purpose of the rule in
encouraging settlement, but only make it clear that unaccepted
offers cannot moot claims.194 As it is currently written, the
cost-shifting effect of the rule encourages plaintiffs to avoid
proceeding to trial when it is not economically wise.195 Thus, the
rule need only be revised to make clear that unaccepted offers
cannot moot claims.196
To be certain, entering judgments for plaintiffs, as is the
practice in the Second, Sixth, and Eighth Circuits,197 will not solve
the issue. This approach still runs afoul of the contract law issues
described above,198 and also does nothing to solve the issue of lead
plaintiffs being strategically picked off.199 Requiring a court to enter
a judgment for the amount of damages that the plaintiff declined in
the offer of judgment does not alter the fact that the defendant is
able to unilaterally end the litigation by making the offer.200 It still
effectively removes any real choice for the plaintiff.201
Regardless of which solution occurs first, it is crucial that
the outcome resolve the circuit split and not permit unaccepted
States, the Supreme Court, and finally Congress. Jeremy Feigenbaum, Atlantic Marine
and Stare Decisis Ambivalence in Civil Procedure, 2 STAN. J. COMPLEX LITIG., 203, 210
(2014). It usually takes two to three years for a proposed amendment to a rule to be in
enacted. About the Rulemaking Process, U.S. COURTS, http://www.uscourts.gov/RulesAnd
Policies/rules/about-rulemaking.aspx (last visited Sept. 18, 2015).
193. See supra notes 184–90 and accompanying text.
194. Cf. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1536 (2013) (Kagan,
J., dissenting) (describing the “exclusive purpose” of Rule 68 as “promot[ing] voluntary
cessation of litigation” but not without a plaintiff’s consent).
195. Megan Barbero, Note, Interpreting Rule 68 to Conform with the Rules Enabling
Act, 57 STAN. L. REV. 2017, 2047 (2005); see also Ruan, supra note 144, at 757–58
(discussing the economic calculus that a plaintiff must go through in deciding whether or
not to accept an offer).
196. See supra Part IV.A (explaining that the language of Rule 68 does not support a
conclusion that unaccepted offers can moot claims).
197. See supra Part III.B.
198. McDonough, supra note 56, at 19, 20 (“Ordering the parties to do things in the
dismissal order is inconsistent with the premise that the court’s power to do anything was
stripped at the moment the offer was made.”).
199. See supra Part III.B (describing courts’ use of default judgments when mooting
claims following unaccepted offers of judgment).
200. Cf. supra Part III.B (demonstrating that an entry of judgment in favor of a
plaintiff does not alter the amount of power that the defendant has in extending the offer
of judgment, as the offer can render the claim moot regardless of whether the plaintiff
accepts it).
201. Cf. supra Part III.B (representing that entries of judgment provide a more
equitable outcome for plaintiffs, but give the plaintiff no more choice as to when the
litigation ends than in jurisdictions where unaccepted offers of judgment moot claims
with no entry of judgment).
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offers of judgment to moot claims.202 In the absence of such a
resolution, defendants will be able to continue thwarting
individual claims and, in the FLSA context, effectively
undermine the very notion of a collective action class.203
VII. CONCLUSION
Unaccepted offers of judgment should not moot plaintiffs’
claims because Rule 68 does not allow it, contract law does not
support it, and plaintiffs’ interests in litigation are not limited to
the monetary relief set out in a complaint.204 To allow unaccepted
offers to moot claims gives defendants the ability to force
plaintiffs to accept the offer or risk losing the ability to pursue
the claim.205 Moreover, allowing unaccepted offers of judgment to
moot claims will enable defendants to entirely avoid FLSA
collective action classes.206 As the FLSA statute is uniquely
designed to facilitate collective action claims, allowing
unaccepted offers of judgment to moot collective actions classes
before they even form is completely at odds with the intent of the
FLSA statute.207
Congress enacted the FLSA in an attempt to remedy a
perceived inequality of bargaining power between low-wage
employees and employer-defendants.208 Thus the FLSA statute
specifically creates the collective action aggregation method to
encourage the resolution of multiple claims in a single lawsuit.209
The inevitability of an unaccepted offer mooting an individual
claim is that defendants will nip FLSA claims in the bud before
they ever actualize into collective action classes.210 And absent
resolution from the Supreme Court or a revision to Rule 68,
202. It seems that even those courts that previously found unaccepted offers to moot
claims are receptive to Justice Kagan’s point of view. See Chapman v. First Index, Inc.,
No. 14-2773, 2015 WL 4652878, at *2–3 (7th Cir. Aug. 6, 2015) (overruling Seventh
Circuit precedent and accepting Justice Kagan’s position).
203. See supra notes 171—76 and accompanying text.
204. See supra Parts IV–V.
205. See supra Part IV (discussing arguments against allowing unaccepted offers to
moot claims).
206. See infra notes 208–10 and accompanying text.
207. See infra note 209 and accompanying text.
208. Elizabeth Wilkins, Silent Workers, Disappearing Rights: Confidential
Settlements and the Fair Labor Standards Act, 34 BERKELEY J. EMP. & LAB. L. 109, 128–
30 (2013); see generally Seth D. Harris, Conceptions of Fairness and the Fair Labor
Standards Act, 18 HOFSTRA LAB. & EMP. L.J. 19, 39–69 (2000) (discussing the living wage
movement that preceded the FLSA).
209. Ruan, supra note 144, at 749.
210. See supra notes 144–48 and accompanying text.
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332 HOUSTON LAW REVIEW [53:1
unaccepted offers of judgment will continue to threaten to moot
plaintiffs’ claims, and will potentially moot the very concept of an
FLSA collective action.
Diane Myers