“Sometimes surrender is the best option.” That is how Judge Raymond J. Dearie of the Eastern District of New York begins his opinion in Anjum v. J.C. Penney Co., Inc., before denying J.C. Penney’s motion to dismiss a putative Fair Labor Standards Act (FLSA) collective action based on the company’s offer to pay the claims of four named plaintiffs with offers of judgment under Federal Rule of Civil Procedure 68—a strategy often referred to as “picking off.” Even though the court rejected J.C. Penney’s picking off attempt in this case, the judge’s opinion in Anjum recognizes the validity of this tactic and provides some practical lessons for defense counsel looking to successfully pick off an FLSA collective in the Second Circuit.
Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold that an unaccepted offer of judgment fully satisfies and renders moot a plaintiff’s individual claim, a defendant can moot a collective action brought under the FLSA by simply tendering the named plaintiff a Federal Rule of Civil Procedure 68 offer of judgment. Read More
Earlier this month, the U.S. Supreme Court began a new term that is anticipated to include decisions on hot-button issues such as affirmative action, same-sex marriage and national security. The Court will also hear several significant cases in the employment context Read More