A lurking question in some of my prior posts on Fisher v. University of Texas is whether Fisher could prevent Texas from mooting the case by refusing to accept Texas’s offer of full judgment ($100, or, to be safe, $101). To be clear, Texas has made no such offer and has not implied that it will. If it did, though, could Fisher keep her case going by declining to accept the money?
The best Supreme Court authority we have on that question is from 1893, and that ruling relied on a California statute for which there is no Texas counterpart. But the Court granted cert. in a Third Circuit case this morning that, at least at first glance, looks like it might shed some light. The question presented in Genesis HealthCare Corp. v. Symczyk is: “Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims.”
On closer inspection, the issue is a little more specific than that. In a prior case, the Third Circuit ruled that a defendant’s offer of judgment to a putative class’s lead plaintiff does not moot the case if there has not been an appropriate opportunity for class certification. That ruling was intended to “vindicate the policy aims” of Rule 23 by preventing defendants from picking off representative plaintiffs one by one, thereby thwarting any class action. In Symczyk, the Third Circuit extended its Rule 23 ruling to Fair Labor Standards Act (FLSA) collective actions, which are like class actions except that they have an opt-in procedure. That decision is what’s before the Court now.
My take is that Symczyk presents a pretty narrow mootness issue that arises only in the context of the FLSA and Rule 68 offers of judgment. That context bears little relation to Fisher. Even so, the Court might say something in passing like, “An unconditional offer of judgment to a representative plaintiff would ordinarily moot her case, even if she doesn’t accept it.” The Third Circuit did so, citing a Seventh Circuit case. A statement like that from the Supreme Court would cover the scenario I’ve been contemplating in Fisher.
With all that said, this discussion may itself be moot given that Symczyk will be argued after Fisher.
