COMMENT - Houston Law Revie€¦ · · 2015-10-16to Moot Claims ... withdrawn.25 Courts will...

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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.


2015] MOOTING THE FLSA 305

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.



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)).



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).



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)).



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



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).


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”).



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).



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



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.



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).


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).



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”).



(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).



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).



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.



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.



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).



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).



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).



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”).



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.



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



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).



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).



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).



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


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).


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



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).



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).



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).


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.




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

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