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Making the Case for Mootness

Professor Ronald Mann heads to the high court Dec. 3 to argue in favor of mooting a plaintiff's collective action under the Fair Labor Standards Act.

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New York, November 26, 2012—Columbia Law School Professor Ronald Mann is no stranger to the U.S. Supreme Court.

He clerked for Justice Lewis F. Powell Jr. shortly after law school, argued eight cases and wrote briefs in dozens more as an assistant to the U.S. solicitor general, and represented independent counsel Ken Starr in an immunity case stemming from the infamous Whitewater investigations into President Clinton.
 
So when Mann makes his tenth appearance before the justices on December 3, he will be a known appellate commodity. Less familiar, however, will be the question at the heart of his case: whether a defendant can knock out a potential collective action by making an offer that would satisfy the claims of the lone named plaintiff.
 
The last time the high court addressed the issue was in 1980. Not a single justice who signed onto those opinions is still on the bench.
 
“There’s no one on the court that’s spoken to anything like this,” said Mann, the Albert E. Cinelli Enterprise Professor of Law and the Co-Director of the Charles E. Gerber Transactional Studies Program at the Law School. “They haven’t had a case like this in 30 years.”
 
The plaintiff in the case, Laura Symczyk, worked as a registered nurse at a facility in Philadelphia owned by Mann’s client, Genesis Healthcare Corp. Symczyk sued Genesis Healthcare in 2009 alleging that her employer violated the Fair Labor Standards Act by deducting meal breaks automatically, regardless of whether she took the breaks. Symczyk brought the case as a potential collective action, but before any other plaintiff could opt into the litigation, Genesis Healthcare offered $7,500—the full amount of her claimed damages—plus reasonable attorney fees and costs.
 
Symczyk did not respond to the offer, and, after a motion by Genesis Healthcare, the trial court dismissed her case as moot. The U.S. Court of Appeals for the 3rd Circuit reversed, finding that it would hinder the objective of class actions to allow a defendant’s offer to preemptively knock out the claims of as-yet unidentified plaintiffs. The appellate panel based its decision on two plaintiff-friendly rulings from 1980. Deposit Guar. Nat’l Bank of Jackson v. Roper, 445 U.S. 326, and United States Parole Comm’n v. Geraghty, 445 U.S. 388.
 
Mann, an expert in appellate advocacy, said his client doesn’t feel like it should have to keep paying to defend a case it has offered to settle in full.
 
The defense perspective is, “‘I’m willing to pay you everything you want, so you should have to stop suing me,’” he explained. “It’s a basic question about class litigation that the court hasn’t addressed.”
 
The case has garnered quite a bit of attention, with amicus briefs coming in on behalf of both sides. The U.S. Chamber of Commerce and other business groups support Genesis Healthcare while the United States, the National Employment Lawyers Association and the Service Employees International Union support the ruling in Symczyk’s favor.
 
One important nuance of Symczyk’s case that may narrow the scope of the court’s ultimate ruling is that it was brought as a collective action. Unlike in a class action, collective action plaintiffs must opt into the litigation to have their claims before the court. In a class action, plaintiffs often are assumed to be members of the class unless they opt out.
 
Mann predicts the justices will answer the question in a way that would apply to both collective and class actions.
 
“If they answer that question crisply, it’s a really big deal,” he said.
 
But even if they don’t, a narrow ruling on collective actions could be an indication of how the court might rule in a class-action context. Given the importance of class actions to the plaintiffs’ bar, the decision is likely to be big news either way.
 
In making his case to the high court, Mann was able to power his briefs with the arguments of his former boss. In both the Roper and Geraghty decisions, Justice Powell delivered the dissenting opinion in favor of mootness. 
 
“Apart from the persistence of the lawyers, this has been a noncase since the petitioner tendered full satisfaction of the respondents’ individual claims,” Powell wrote in Roper.
 
When he is not preparing for—and arguing—U.S. Supreme Court cases, Mann teaches courses at Columbia Law School in commercial finance, deals, and electronic commerce. He has written extensively about bankruptcy, credit cards and other electronic payment systems, the role of patents in financing innovation, and related topics. 

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