by Michael Fox
I had hoped, although without any real basis, that when the Supreme Court dealt with a collective action case this term, by deciding whether or not an offer that would completely resolve an individual plaintiff's claim prevented a collective action from going forward, that they might somehow wander into what seems to be an issue never subject to review, what is the standard for conditional certification of a collective action under 29 U.S.C. 216(b).
Instead, what we got, at least according to Justice Kagan's dissent, which had the odd character of being both casual and derisive of the reasoning of both the majority and the 3rd Circuit, was a decision that can be "relegated ... to the furthest reaches of your mind: The situation it addresses should never again arise." Genesis Healthcare Corp. v. Symczyk (U.S. 4/16/13).
That holding was assuming, as it said the employee had conceded, the offer made her by the company, did moot her claim, then she had no right to proceed with her collective action on the part of others. Justice Kagan said making that concession was a mistake made by both the plaintiff and the 3rd Circuit, and was in fact something that should never happen again.
What would have made this a precedential case was addressed by Justice Thomas this way:
While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.
Given that, I think Justice Kagan is close to correct, this is a case that is the "most one-off of one-offs." And she makes a fairly decent argument, joined by the other three members of the liberal wing of the Court, that the answer to the question left open above would be, no.
One wild guess would be that Justice Kennedy was undecided on that issue, and so this was a way for the Court to punt, until he makes up his mind.
In the 5th Circuit, it does undermine the validity of Sandoz v. Cingular Wireless, LLC (5th Cir. 2008), which had undermined the defense strategy in this circuit. So it presents the opportunity to try it again, and see how the 5th Circuit comes out on the question left unanswered by today's decision.
But ultimately, we really are talking about a relatively small number of cases, when the big question is the standard to apply in conditional certification Is the "lenient standard" really the correct one?
It seems so wrong, that with little substance, plaintiffs can invoke the powers of the court to help them summon a group of fellow would be plaintiffs, who would never have brought a claim on their own. Then there is either a settlement or a costly course of discovery, after which if there is no settlement, often the court decertifies the class that it conditionally certified.
There was really no basis for the Supreme Court to have addressed that today, but the question remains.