TO TENDER OR NOT TO TENDER?

If an employer tenders a check to a suing employee for the amount in controversy, and no other class members have yet been certified, is it still a “case or controversy” under Article III of the Constitution? 

According to James N. Boudreau, a shareholder with Greenberg Traurig, LLP in Philadelphia, that is the big question posed by U.S. Supreme Court Chief Justice John Roberts in his dissent in Campbell-Ewald Co. v. Gomez, 2016 BL 14352 (2016). 

In my last blog entry discussing the outcome of the case, Boudreau argued that the answer as to whether an employer could moot a Rule 23 class or FLSA collective action against it by tendering the amount in controversy to the named plaintiff or plaintiffs before a class had been certified post- Campbell-Ewald would be determined by how the federal court interpreted such an action in relation to the “cases and controversies” requirement under Article III, Sec. 2 of the U.S. Constitution.

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Bloomberg BNA: How did Chief Justice Roberts lay out the argument in his dissent for employers being able to potentially “pick off” named plaintiffs in class and collective actions under Article III of the Constitution?

Boudreau : In his dissent, Chief Justice Roberts argued that the Campbell-Ewald majority was mis-focused, thereby rendering an opinion that is largely inapplicable to the broader, more fundamental question. In essence, he states that the majority’s focus on contract law when determining that an unaccepted offer of judgment cannot moot a claim misses the essential mark.  Rather, according to Chief Justice Roberts, a court’s focus should be on whether the offer of relief is sufficiently concrete and complete that there is no longer a cognizable case or controversy under Article III of the Constitution.

By focusing on the existence of an Article III case or controversy in contrast to the details of offer and acceptance, Chief Justice Roberts posits a far simpler solution – has the defendant offered what the plaintiff is entitled to receive in sufficiently concrete form that the plaintiff’s “entitlement to relief [is] already there for the taking.”  If so, “there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end.”  Notably, Chief Justice Roberts goes further than Justices Alito and Thomas in explaining that an entry of judgment in favor of the plaintiff is not necessary to moot a case because a plaintiff has no right to have a federal court “say he is right.”

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