frcp 68

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Issuing its second sharply divided procedural opinion in as many months with ramifications for wage-and-hour practitioners, the Supreme Court yesterday ruled that a Pennsylvania nursing facility’s “offer of judgment,” which would have provided full relief to the sole putative collective action representative, effectively “mooted” her case.  Accordingly, no collective action could proceed even though the…

Employers who find themselves confronted with a putative collective action lawsuit under the FLSA typically take immediate steps to limit exposure, both within and outside the litigation. One procedural tool employers seek to avail themselves of is the Offer of Judgment, authorized by Federal Rule of Civil Procedure 68. Using this mechanism, an employer seeks to…

One oft-invoked disincentive to employers’ litigating FLSA claims (specifically non-class or collective claims) is the statute’s fee shifting provision: when a plaintiff prevails (however nominally), he is entitled to have his “reasonable” attorneys’ fees paid by the employer defendant (however the principle does not apply to a defense victory). In such cases, the individual plaintiff’s damages may…