Earlier this month, the United States Supreme Court heard oral arguments in the Genesis Healthcare case, which will likely decide whether employers may use Rule 68 Offers of Judgment to “pick off” the claims of lead plaintiffs. This would result in employers being able to use a procedural device for a purpose it was clearly not intended: to deprive putative class members from the opportunity to join FLSA collective actions. To read my previous post on the case, you can follow this link: http://www.tennesseeworkplacelaw.com/2012/10/18/rule-68-offers-of-judgment-in-flsa-collective-actions-is-it-really-an-offer/
At oral argument, the justices seemed predictably split. The progressive justices appeared hesitant to allow an employer to manipulate the judicial process by making a Rule 68 Offer of Judgment which would eliminate its liability to the larger class. The conservative block appeared sympathetic to the employer’s argument. This will likely leave the swing vote with Justice Kennedy and, perhaps, Chief Justice Roberts.
It will be interesting to see how judicial philosophies will play into this decision. Because this deals with a Rule of Civil Procedure rather than a statute, there will likely be less discussion of “intent,” as Congress played no role it the drafting of the text. Rather, the courts are the guardians of their own procedures.
On a personal note, the employee’s case was argued by Neal Katyal. If you’ll forgive my shameless name-dropping, I had the great pleasure of meeting Neal at the Sixth Circuit Judicial Conference last April. We had lunch together, and I was immediately impressed by his intellect and grasp of Supreme Court jurisprudence. Neal is a graduate of Dartmouth and Yale Law School. He previously served as acting Solicitor General and successfully argued the constitutionality of the Affordable Care Act before the Sixth Circuit. He has argued many cases before the U.S. Supreme Court and is likely the most preeminent legal mind of my generation.
The Genesis Healthcare case is crucially important for employee rights advocates. Regardless of the outcome, we were fortunate to be able to trust Neal with the stewardship of this case. Neal and I exchanged emails following his oral argument. Nothing is left to do now but wait. Or, as Neal said in his email, “Fingers crossed, my friend.”