Wednesday, December 5, 2012

SCOTUS Arguments in FLSA Pick-Off Case

On Monday, the Supreme Court heard oral arguments in Genesis Healthcare, Corp. v. Symczyk (SCOTUSblog coverage), aka the FLSA "pick-off" case. The Third Circuit opinion is an old Case of the Week - see here, and additional coverage here. Supreme Court oral argument transcripts here.

So, what's the case about? A plaintiff files an FLSA (wage and hour) complaint and intends to get other employees to opt in to make it an FLSA collective action. The employer immediately says, "we surrender, take everything you're asking for." Now, the only plaintiff in the case has no real case - there is no "case or controversy" because the employer is offering everything the plaintiff can possibly get. Nobody else has had a chance to join the collective action, so the case has no real plaintiffs . . . so, is the case over? Can the employer really get a collective action dismissed just by "picking off" the lead plaintiff?

At oral arguments, the more liberal Justices leaned pretty heavily in favor of allowing the case to proceed to identify more plaintiffs.

Justice Ginsburg
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
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
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.

Justice Kagan
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).

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