Picking Off Lead Plaintiff Ends FLSA Collective Action

Under the Fair Labor Standards Act (“FLSA”) collective actions for unpaid overtime are treated differently than typical “class” actions.  In an FLSA suit, a plaintiff can sue individually and on behalf of similarly situated employees.  However, other plaintiffs must affirmatively consent to join the case, which is different that the “opt out” procedures of Rule 23 class actions.   In Genesis HealthCare Corp., et al. v. Symczyk, 569 U.S. ___ (2013) (April 2013), the Supreme Court considered a case where the employer effectively mooted the damages claim of the named plaintiff by offering full relief before any additional plaintiffs opted-in or before a conditional class was certified under collective action procedures.  Once the plaintiff’s case was deemed “moot,” the Court held 5-4 that the plaintiff had no further interest in litigating the claims of other unnamed or potential plaintiffs, thereby divesting the District Court of any further subject matter jurisdiction in the case.  On a side note, the Court did not directly address or resolve a Circuit split on whether an unaccepted offer of judgment under Rule 68 for full relief is itself deemed to moot a claim, as held by the Third Circuit.