As we look forward to Spring Training, the Fourth Circuit recently analyzed what courts sometimes refer to as “picking off” collective action plaintiffs. In Simmons v. United Mortgage Co.pdf., ___F.3d____No. 09-2147, 2011 WL 184356 (Jan. 21, 2011), the Court discussed the interplay of FLSA collective action procedure, Federal Rule of Civil Procedure 68 offers of judgment, and standing. The Constitution requires that litigants have standing (i.e., a live legal dispute) in order for the federal Court to decide a case. In other words, the rulebook does not permit lawsuits that are mere exhibition games. A timely and properly worded offer of judgment may moot a collective action and potentially result in no recovery to the plaintiff. But, as Simmons demonstrates, an offer of judgment that fails to follow the rules may result in no outs and additional opt-in plaintiffs on base.

In Simmons, former junior asset managers of United Mortgage filed a collective action alleging that they were improperly classified as salaried exempt and not paid for overtime hours worked. After nine additional plaintiffs opted-in, counsel for Defendants sent a letter to the Plaintiffs’ counsel offering each “full relief” contingent upon acceptance within five days. Specifically, the letter to plaintiffs’ counsel stated that each opt-in plaintiff would be compensated fully upon receipt of an affidavit stating the dates on which overtime was worked, the total hours worked up to the date of their termination, the total amount of back pay claimed, and a statement detailing their calculation of overtime amounts owed. The letter also offered to pay taxable costs and reasonable attorney’s fees as agreed upon by the parties or as determined by the court. The letter finally required the parties to enter into a confidential settlement agreement and release. At the request of plaintiffs’ counsel, defense counsel clarified in writing that the offer included liquidated damages and applied to both the named plaintiffs and all opt-in plaintiffs.

After paintiffs failed to accept the offer within the five-day period, United Mortgage moved to dismiss the entire case for lack of subject matter jurisdiction. United Mortgage contended that the offer to satisfy plaintiffs’ claims in their entirety meant that the case was moot, or no longer live. The District Court agreed, finding that the Defendant’s “offer of judgment” was for full relief to all plaintiffs and included attorney’s fees and taxable costs. The District Court also found that the plaintiffs’ motion for conditional certification and request for court-facilitated notice to potential collective action members was likewise moot.

The Fourth Circuit reversed, finding that the defendant’s offer did not constitute an offer of judgment in accordance with Federal Rule of Civil Procedure 68 and did not moot the case. As the primary reasons for finding the case still live, Simmons stated that the offer of a confidential settlement—instead of a judgment—coupled with the affidavit requirement, could result in additional legal wrangling instead of finality. Simmons also recognized that the offer provided only five days to accept, instead of the ten days required by Rule 68. But, the opinion implies that the time for acceptance of the offer was not critical in determining whether a live case or controversy existed.

The impact of an offer of judgment is fact and court-specific. A plaintiff in the Seventh Circuit who rejects a properly worded offer of judgment that satisfies his entire demand is barred from recovering damages or attorneys’ fees. See Greisz v. Household Bank, 176 F.3d 1012, 1015 (7th Cir. 1999). Other Courts lament that offers of judgment improperly allow Defendants to pick off a named plaintiff for a relatively nominal amount, thereby mooting the lawsuit and avoiding class notice and certification. As a consequence, some courts permit a timely motion for certification to relate back to the date plaintiff filed the initial complaint. See, e.g., Sandoz v. Cingular Wireless, LLC, 553 F.3d 913 (5th Cir. 2008). If the motion to certify is denied, then the offer of judgment moots the case. But, if the motion to certify is granted, then the offer does not satisfy the claims of all those in the collective action. The Simmons District Court was not troubled that the offer improperly picked off’ plaintiffs because the offer was made to actual plaintiffs and would be opt-in plaintiffs.

The Bottom Line: If an employer decides that an offer of judgment is the correct strategy, care must be taken to properly structure the terms and timing of the offer. Obtaining an early settlement demand and/or quantification of damages by plaintiff’s counsel could serve to alleviate the ambiguity created by the affidavit requirement in the Simmons offer. Offers of judgment and motions to dismiss constitute important litigation tools that should be considered alongside other strategies such as early depositions and a summary judgment motion before the plaintiff files a motion for conditional certification. These tools should be analyzed based on the individualized facts in the case, local law, and the judge’s proclivities.