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And then there were questions…. by Robert B. Fitzpatrick, Esq. Robert B. Fitzpatrick, PLLC Universal Building South 1825 Connecticut Avenue, N.W. Suite 640 Washington, D.C. 20009-5728 (202) 588-5300 (202) 588-5023 (fax) fitzpatrick.law@verizon.net (e-mail)

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and then there were questions

And then there were questions…

by

Robert B. Fitzpatrick, Esq.

Robert B. Fitzpatrick, PLLC

Universal Building South

1825 Connecticut Avenue, N.W.

Suite 640

Washington, D.C. 20009-5728

(202) 588-5300

(202) 588-5023 (fax)

fitzpatrick.law@verizon.net (e-mail)

http://www.robertbfitzpatrick.com (website)

disclaimer of all liability and responsibility
DISCLAIMER OF ALL LIABILITY AND RESPONSIBILITY

THE INFORMATION CONTAINED HEREIN IS BASED UPON SOURCES BELIEVED TO BE ACCURATE AND RELIABLE – INCLUDING SECONDARY SOURCES.  DILIGENT EFFORT WAS MADE TO ENSURE THE ACCURACY OF THESE MATERIALS, BUT THE AUTHOR ASSUMES NO RESPONSIBILITY FOR ANY READER’S RELIANCE ON THEM AND ENCOURAGES READERS TO VERIFY ALL ITEMS BY REVIEWING PRIMARY SOURCES WHERE APPROPRIATE AND BY USING TRADITIONAL LEGAL RESEARCH TECHNIQUES TO ENSURE THAT THE INFORMATION HAS NOT BEEN AFFECTED OR CHANGED BY RECENT DEVELOPMENTS.

THIS PAPER IS PRESENTED AS AN INFORMATIONAL SOURCE ONLY. IT IS INTENDED TO ASSIST READERS AS A LEARNING AID; IT DOES NOT CONSTITUTE LEGAL, ACCOUNTING, OR OTHER PROFESSIONAL ADVICE. IT IS NOT WRITTEN (NOR IS IT INTENDED TO BE USED) FOR PURPOSES OF ASSISTING CLIENTS, NOR TO PROMOTE, MARKET, OR RECOMMEND ANY TRANSACTION OR MATTER ADDRESSED; AND, GIVEN THE PURPOSE OF THE PAPER, IT MAY OMIT DISCUSSION OF EXCEPTIONS, QUALIFICATIONS, OR OTHER RELEVANT INFORMATION THAT MAY AFFECT ITS UTILITY IN ANY LEGAL SITUATION. THIS PAPER DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY READER. DUE TO THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PAPER MAY BECOME OUTDATED.  IN NO EVENT WILL THE AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES RESULTING FROM AND/OR RELATED TO THE USE OF THIS MATERIAL.

slide5

Assuming an unaccepted Rule 68 offer moots plaintiff’s claim, would a lawyer-to-lawyer unaccepted settlement offer of full monetary relief, but not judgment, moot the claim as well?

slide7
Does the fact that a § 216 motion for conditional certification is pending change the mootness analysis?
slide8
Is best practice after Genesis for plaintiff’s counsel to file for conditional certification under § 216 along with the complaint?
slide9
Should the mootness outcome be different where it is not a § 216 collective action, but instead a Rule 23 class action?
slide12

What should be the outcome where a motion to certify a Rule 23 class action has not yet been filed, but plaintiff has not been dilatory? What if plaintiff has been dilatory?

Federal district court for the District of Columbia, Local Rule 23.1(b) requires claimants to file for class certification within 90 days of filing the complaint.

should the public policy concern be a factor to be considered by the courts
Should the public policy concern be a factor to be considered by the courts?

Some courts have expressed concern about the defense “picking off” individual representatives to defeat certification.

slide15
Can/Should the defense stipulate to liability? And, then move for summary judgment on plaintiff’s damages and fees?
slide17

What effect might these disputes have on the issue not reached during the 2012-2013 term in Marx, that is, whether Rule 68 shifts fees when, after an unaccepted offer, the plaintiff loses outright?