Settling With Named Plaintiffs in Federal Class Actions: Does Timing Matter?
By THOMAS A. COUNTS, GRACE A. CARTER, SEAN D. UNGER, & ANGELA J. MARKLE
Sometimes a case is important not only for what it resolves but for what it suggests for the future. The recent Supreme Court decision in Genesis Healthcare Corp. v. Symczyk is such a case. The case decided a strategically important (if narrow) question for collective action litigators: Assuming that a defendant’s offer under Federal Rule 68 to give plaintiff everything she asked for mooted her individual claim, the offer also mooted the collective action the plaintiff sought to bring under the Fair Labor Standards Act. As part of its discussion, the Court said that a collective action brought under the FLSA was different from a class action initiated under Federal Rule 23. But what if that stated distinction was only relevant for that case? What if the Court was building a bridge to the next case—a case addressing the ability to ‘‘pick off’’ plaintiffs precertification in putative class actions brought under Rule 23? Other recent Supreme Court cases suggest this may be exactly what the court was doing in Genesis Healthcare. If the next case resolves the open question of whether a class can be defeated by offering to fully satisfy the claim of the named class representative before a class is certified, Genesis Healthcare will be seen as the case that set the stage for that outcome.