Tag Archives: “Rule 68”

Eleventh Circuit Upholds Small Fee Award in FLSA Case

By Greg Mersol on December 8, 2020 Posted in FLSA

When is a win not a win? One ace in the hand of plaintiffs’ counsel in Fair Labor Standards Act (FLSA) litigation (as well as claims under Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment Act) is their ability to recover attorney fees should they prevail. While that is, indeed, … Continue Reading

Second Circuit Finds That Rule 68 Can Be Used To Settle FLSA Claims

By Greg Mersol on December 26, 2019 Posted in FLSA

Many litigants in FLSA cases find practical obstacles in settling the matters, particularly when there are disputes regarding what exactly has happened or when the underlying claim turns out to be very small. This process is made more difficult by the judicial interpretation of the FLSA’s enforcement provision, section 16, which permits the Department of … Continue Reading

Seventh Circuit Rejects Rule 67 Deposit Into Court Account as Easier Alternative to Rule 68 Offer of Judgment

By Greg Mersol on June 30, 2017 Posted in Rule 68

Over the years, Rule 68 offers of judgment have been touted as a means of picking off class representatives and a potentially easy way to terminate a class or collective action before it starts. It rarely really works that way, as many courts, particularly those that are disposed to class actions, have found endless ways … Continue Reading

Rule 68 Offer That Excludes Individual Claim Does Not Moot Putative FLSA Collective Action

By Todd Dawson on December 12, 2013 Posted in FLSA, Rule 68

“The Last Inch Is The One That Counts” The recent decision in Silva v. Tegrity Personnel Svcs., Inc., Case No. 4:13-cv-00860 (S.D. Tex. 12/5/2013), suggests that some district courts haven’t fully embraced the Supreme Court’s holding in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013). The plaintiff in Silva filed a proposed … Continue Reading

Supreme Court Upholds Use of Rule 68 Offers of Judgment in FLSA Collective Actions

By Greg Mersol on April 16, 2013 Posted in FLSA, Rule 68

Today the United States Supreme Court delivered an unexpected present to employers facing FLSA collective actions and held that a defendant may moot such a case by making a Rule 68 offer of judgment to the named plaintiff. Genesis Healthcare Corp. v. Symczyk, Case No. 11-1059 (Apr. 16, 2013). We wrote about the lower court’s … Continue Reading

Supreme Court Grants Certiorari On Issue Of Rule 68 Offers Of Judgment In Collective Actions

By Greg Mersol on June 27, 2012 Posted in FLSA

Rule 68 offers of judgment have often been rendered almost meaningless in employment class and collective actions amidst criticism by some courts that they would permit employers to “pick off plaintiffs” and to avoid class litigation altogether. As we have noted previously, these courts express little or no sensitivity towards the cost of class or … Continue Reading

Unaccepted Offers of Judgment Ineffective in FLSA Collective Cases

By Greg Mersol on September 8, 2011 Posted in Class Certification, FLSA, Meal and Rest Periods

Plaintiffs frequently include collective action allegations in even run-of-the-mill FLSA cases. What if an employer concludes, however, that no matter how frivolous the underlying claim, the defense costs will be more than even an oversized settlement? In theory, an offer of judgment under Federal Rule 68 would be one avenue. By offering the plaintiff all … Continue Reading