Will Offering Full Monetary Relief Without a Judgment Moot an FLSA Case?

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As has been widely reported, it appears that the Supreme Court, by granting certiorari in Genesis HealthCare Corp. v. Symczyk, 656 F.3d 189 (3d Cir. 2011), may soon be deciding whether an offer of judgment for full relief under Rule 68 moots an FLSA case; or, alternatively, whether the case should survive to allow the collective action certification process to play out. 

In the meantime, employment lawyers in the Eleventh Circuit should be aware of a recent case decided under the Fair Debt Collection Practices Act ("FDCPA") that appears to answer a related question that has been brewing in the Eleventh Circuit since the court's 2011 decision in Dionne v. Floormasters (11th Cir., July 28, 2011): whether an offer of full monetary relief to a plaintiff, without an offer of judgment, moots the case and deprives the plaintiff of an award of attorney's fees and costs. The Eleventh Circuit's decision In Zinni v. ER Solutions, Inc. (11th Cir., August 27, 2012), signals that the answer is no. 

In Dionne, the Eleventh Circuit held that an employer who denies liability in an overtime case is not liable for the plaintiff's attorney's fees under 29 U.S.C. § 216(b) if the employer tenders the full amount of overtime pay claimed by the plaintiff (without making an offer of judgment) and moves to dismiss on mootness grounds, where the employee has conceded that the claim for overtime should be dismissed as moot. Under such circumstances, the court held, dismissal of the employee's complaint, without an award of attorney's fees and costs, is not erroneous under §216(b) because the district court has not awarded judgment to the employee as the prevailing party.  As the court noted, "[t]he FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney's fees and costs."  Thus, Dionne seemed to suggest that a defendant could moot an FLSA case and deprive the plaintiff of an award of fees and costs at any stage in the case merely by tendering full payment to the plaintiff.  However, on January 13, 2012, the Eleventh Circuit issued a revised decision in Dionne with  a new footnote 5 that stated that its holding applied only to the situation where the employee "conceded that his claim should be dismissed before trial as moot."  "It should not be construed," said the court, "as authorizing the denial of attorney's fees, requested by an employee, solely because an employer tendered the full amount of back pay owing to an employee, prior to the time a jury has returned its verdict, or the trial court has entered judgment on the merits of the claim."

In Zinni, the court appears to have come full circle.  The court held that the defendant's settlement offer, while purporting to offer full relief, did not moot the case because it did include an offer of judgment against the defendants.  Though the case was decided under the FDCPA, the court cited approvingly to the Fourth Circuit's decision in an FLSA case, Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 766 (4th Cir. 2011), in which the court found under similar facts that the case was not mooted merely by an offer of full monetary relief. 

In short, it now appears that in the Eleventh Circuit, an offer of full monetary relief in an FLSA case, without an offer of judgment against the defendant, will not moot the case. An offer of full monetary relief with a corresponding offer of judgment will moot the case, but will also entitle the plaintiff to his fees and costs as the prevailing party. And that may be the final word on the matter – at least until the Supreme Court issues its decision in Symczyk.