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

by Akerman LLP - HR Defense

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.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Akerman LLP - HR Defense | Attorney Advertising

Written by:

Akerman LLP - HR Defense

Akerman LLP - HR Defense on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.