In Genesis Healthcare v. Symczyk, Supreme Court ducks actual mootness issue raised by Rule 68 offers

Federal Rule of Civil Procedure 68 allows a defendant to pony up the dough to resolve a claim and avoid the expense of litigation so long as the amount to fully resolve the claim can be clearly calculated in full and is offered in full (more can be offered if the defendant wants to be sure that the full claim under any method of calculation is fully resolved by the offer).  In Genesis Healthcare v. Symczyk, 569 U. S. ____ (April 16, 2013), the Supreme Court entirely ducked the issue of whether a Rule 68 offer moots a collective action filed under the FLSA, instead resting on a concession by the plaintiff in the court below.  And thanks for nothing.

To sum up, the plaintiff brought a collective action under the Fair Labor Standards Act of 1938 (FLSA) on behalf of herself and “other employees similarly situated.”  She ignored defendant’s offer of judgment under Rule 68.  The District Court, finding that no other individuals had joined and that the Rule 68 offer fully satisfied her claim, concluded that the suit was moot and dismissed it for lack of subject-matter jurisdiction. The Third Circuit reversed. It held that her individual claim was moot but that her collective action was not, explaining that allowing defendants to “pick off” named plaintiffs before certification with calculated Rule 68 offers would frustrate the goals of collective actions. The case was remanded to the District Court to allow the plaintiff to seek “conditional certification,” which, if successful, would relate back to the date of her complaint.

Relying on the case or controversy requirement, the Court ducked the entire "pick off" issue:​

While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff ’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us. The Third Circuit clearly held in this case that respondent’s individual claim was moot. 656 F. 3d, at 201. Acceptance of respondent’s argument to the contrary now would alter the Court of Appeals’ judgment, which is impermissible in the absence of a cross-petition from respondent. See Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 364 (1994); Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 119, n. 14 (1985). Moreover, even if the cross-petition rule did not apply, respondent’s waiver of the issue would still prevent us from reaching it.  In the District Court, respondent conceded that “[a]n offer of complete relief will generally moot the [plaintiff ’s] claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation.” App. 93; 2010 WL 2038676, at *4. Respondent made a similar concession in her brief to the Court of Appeals, see App. 193, and failed to raise the argument in her brief in opposition to the petition for certiorari. We, therefore, assume, without deciding, that petitioners’ Rule 68 offer mooted respondent’s individual claim. See Baldwin v. Reese, 541 U. S. 27, 34 (2004).

Slip op., at 5.​  So, given that the Supreme Court said that it is refusing to consider the "pick off" issue, what has been the general reaction of the defense bar?  Naturally they have already written that this means the "pick off" is completely acceptable.  I happen to think that this means you shouldn't concede anything ever, even if the court you are before thinks you are a punk for holding fast to your view of the law.

Justice Kagan had a few choice words for the 5-4 majority in her dissent.​  She wrote:

The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it. The issue here, the majority tells us, is whether a “ ‘ collective action’ ” brought under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., “is justiciable when the lone plaintiff's individual claim becomes moot.” Ante, at ––––. Embedded within that question is a crucial premise: that the individual claim has become moot, as the lower courts held and the majority assumes without deciding. But what if that premise is bogus? What if the plaintiff's individual claim here never became moot? And what if, in addition, no similar claim for damages will ever become moot? In that event, the majority's decision—founded as it is on an unfounded assumption—would have no real-world meaning or application. The decision would turn out to be the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so. That is the case here, for reasons I'll describe. Feel free to relegate the majority's decision to the furthest reaches of your mind: The situation it addresses should never again arise. ​

Slip diss. op., at ​1-2.  Justice Kagan then observed that the underlying issue was already answered indirectly by the Supreme Court recently:

We made clear earlier this Term that “[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568 U.S. ––––, ––––, 133 S.Ct. 1017, 1023, –––L.Ed.2d –––– (2012) (internal quotation marks omitted). “[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Ibid. (internal quotation marks omitted). By those measures, an unaccepted offer of judgment cannot moot a case. When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before. And so too does the court's ability to grant her relief. An unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first-year law student learns, the recipient's rejection of an offer “leaves the matter as if no offer had ever been made.” Minneapolis & St. Louis R. Co. v. Columbus Rolling Mill, 119 U.S. 149, 151, 7 S.Ct. 168, 30 L.Ed. 376 (1886). Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that “[a]n unaccepted offer is considered withdrawn.” Fed. Rule Civ. Proc. 68(b). So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, unmooted.

Slip diss. op., at 3.​  Don't forget this admonition from Justice Kagan when you receive the inevitable pick-off attempt, followed by a motion to dismiss.