At oral arguments, the more liberal Justices leaned pretty heavily in favor of allowing the case to proceed to identify more plaintiffs.
At one point, the employer's attorney argued that potential plaintiffs are not part of the case until they officially opt-in, to which Justice Ginsburg replied, "Yes, but you have to give the plaintiff an opportunity." - that's pretty much the whole issue, so I'm going to go ahead and put Ginsburg, J. in the employee-side on this one.
Justice Breyer said it would be "fair" to allow subsequent plaintiffs to "relate back" to the earlier Complaint - and don't Justices strive to be "fair"? So, I'm going to place Justice Breyer in the employee-side as well.
Justice Sotomayor related back to her district judge days, and seemed upset that the parties were even presenting their settlement negotiations to the district court. She also pointed out that nothing in Rule 68 (regarding offers of judgment) allows a district court to enter judgment when the offer is rejected. These are technically side issues, but I'm still placing her in the employee-side.
At one point, Justice Kagan said:
[T]he plaintiff's individual claims have not been fully satisfied. She walked away with nothing. She walked away with no judgment, and she walked away with no $7,500. And the question is: How can it possibly be that her individual claim was moot?Sounds like she's in the employee-side camp as well.
Chief Justice Roberts and the Final Prediction
Chief Justice Roberts asked why the dictrict judge couldn't just schedule the case so as to make the collective certification determination prior to the mootness determination. Problem solved, right? Call me crazy, but I think Chief Justice Roberts sides with the liberal bloc again, with a practical opinion directing district courts to use their vast scheduling powers to just schedule a mootness hearing after scheduling a hearing to determine certification of a collective action. I'm going with 5-4 employee-side (maybe CJ can drag Justice Kennedy or Justice Alito along with him).