Make Him an Offer He Can’t Refuse: The Concerning Practice That Effectively Ends Collective Litigation and How to Fix It (Without the Supreme Court)

INTRODUCTIONLaura Symczyk worked as a nurse at the Pennypack Center ("Pennypack"), a medical and rehabilitative facility in Philadelphia, Pennsylvania.1 Pennypack automatically deducted one half hour's worth of pay daily from Symczyk's paycheck so that her meal break was unpaid, as statutorily permitted.2 Pennypack, however, often made Symczyk work during her meal breaks, meaning she should have received compensation for this time, as is required under the Fair Labor Standards Act (FLSA).3 Despite the fact that her employer did not contest that this practice of withholding pay violated her rights, the nature of litigation makes a legal remedy difficult and costly for Symczyk to pursue alone.4Symczyk was not the only one who had been wronged: Pennypack and its corporate relatives, Genesis Healthcare Corporation and Genesis Eldercare (collectively "Genesis"), used the same unlawful system to automatically deduct pay for working meal times from thousands of its employees.5 In this situation, each wronged employee could have the same claim against his or her employer for the same unlawful practice.6 Fortunately for these workers, similarly situated parties may litigate a claim collectively as a class rather than individually, avoiding what would ordinarily be a costprohibitive attempt at litigation for each individual employee.7 A collective lawsuit makes justice more accessible for these employees and is more efficient for the court.8Symczyk filed a complaint on behalf of herself and all other FLSAcovered employees whom Genesis subjected to the illegal automatic pay deductions.9 Simultaneous with its answer to the complaint, Genesis offered a settlement to only Symczyk, which would compensate her for her previously unpaid lunch breaks and any litigation costs she incurred.10 This offer would do nothing for the claims of the other wronged employees.11 Two weeks later, and without a response from Symczyk, Genesis withdrew its offer and moved to have the case dismissed for a lack of subject matter jurisdiction.12 Genesis argued that, because its offer would have provided Symczyk the complete relief sought in her suit, she now lacked a personal stake in the outcome, which rendered the action moot.13 Symczyk objected to Genesis's motion, arguing that it was an attempt to "pick off" the named plaintiff before any class action began.14 However, since no other class members had been able to join Symczyk as a plaintiff yet, the U.S. District Court for the District of Eastern Pennsylvania rejected Symczyk's objection, finding that Genesis's offer fully satisfied her individual claim.15 Consequently, the District Court concluded that the settlement offer mooted Symczyk's claim.16With the claim mooted, the court dismissed the case for lack of subject matter jurisdiction.17 After the U.S. Court of Appeals for the Third Circuit reversed the dismissal, the U.S. Supreme Court granted certiorari. 18 U.S. Supreme Court Justice Thomas's majority opinion assumed that the mooting of Symczyk's case was proper and held that, because she had no personal interest in representing the remaining class members, the case was properly dismissed.19 The Court accordingly reversed the Third Circuit rul8 ing, thereby affirming the District Court ruling, and leaving Symczyk and the rest of the class without a case or settlement.20A defendant's ability to moot representative plaintiffs' cases with an unaccepted settlement offer before a class certification motion essentially erases the ability to litigate claims collectively.21 Doing so incapacitates social justice movements led by civil rights groups and environmentalists, for instance, as well as groups of individuals seeking justice against large, well-financed opponents.22 Part I of this Note discusses collective litigation and its history, procedure, and policy, and the critical role it has played in achieving social justice. Part II examines the current split amongst the U. …