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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)

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And then there were questions…

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  1. 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)

  2. 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 DUE TO THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PAPER MAY BECOME OUTDATED.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.

  3. Is Justice Kagan’s dissent persuasive?

  4. Circuits are split as to whether an unaccepted Rule 68 offer moots Plaintiff’s claims

  5. 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?

  6. In the lawyer-to-lawyer settlement offer, should defense counsel actually tender a check?

  7. Does the fact that a § 216 motion for conditional certification is pending change the mootness analysis?

  8. Is best practice after Genesis for plaintiff’s counsel to file for conditional certification under § 216 along with the complaint?

  9. Should the mootness outcome be different where it is not a § 216 collective action, but instead a Rule 23 class action?

  10. What about hybrid cases where there are both class and collective action components?

  11. Is a federal district court empowered to compel a plaintiff to accept an offer?

  12. 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.

  13. 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.

  14. What happened to Evidence Rule 408?

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

  16. What about a default judgment?

  17. 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?

  18. A Rule 68 offer must offer full relief, and ought not place conditions on the judgment.

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