A Rule 68 Offer of Judgment as to the Named Plaintiff does not Preclude §216(b) Collective Action
Sandoz filed a purported §216(b) collective action against Cingular alleging that she and similarly situated contract sales consultants were not paid minimum wage. Sandoz filed her case, which was removed to federal court. Cingular then made a Rule 68 offer of settlement, and moved to strike Sandoz’s case for lack of subject matter jurisdiction (the make whole offer would divest the district court of jurisdiction). The trial court denied the motion, and the matter came to the Fifth Circuit on expedited appeal.
As a threshold matter, the Fifth Circuit concludes that, unless and until similarly situated employees opt in, a named plaintiff represents only herself. This would ordinarily render the case moot.
However, or “luckily” as the Court puts it, the relation back doctrine allows the motion for class certification to relate back to the filing of the complaint. The test is whether the named plaintiff timely seeks certification without undue delay. Then, if the trial court grants certification, the Rule 68 offer is void because it fails to account for the class. If the trial court denies certification, the Rule 68 applies and renders the named plaintiff’s case moot.
Finally, it is worth noting that footnote 2 appears to bless two-stage certification.
The case is Sandoz v. Cingular Wireless, LLC, --- F.3d ----, 2008 WL 5341434 (5th Cir. Dec. 23, 2008).
As a threshold matter, the Fifth Circuit concludes that, unless and until similarly situated employees opt in, a named plaintiff represents only herself. This would ordinarily render the case moot.
However, or “luckily” as the Court puts it, the relation back doctrine allows the motion for class certification to relate back to the filing of the complaint. The test is whether the named plaintiff timely seeks certification without undue delay. Then, if the trial court grants certification, the Rule 68 offer is void because it fails to account for the class. If the trial court denies certification, the Rule 68 applies and renders the named plaintiff’s case moot.
Finally, it is worth noting that footnote 2 appears to bless two-stage certification.
The case is Sandoz v. Cingular Wireless, LLC, --- F.3d ----, 2008 WL 5341434 (5th Cir. Dec. 23, 2008).
