This case presents the question whether parties can settle Fair Labor Standards Act (FLSA) claims without either judicial approval or Department of Labor supervision by using the offer-of-judgment procedure set forth in Federal Rule of Civil Procedure 68. The district court held that judicial approval is required of settlements reached through Rule 68, but certified its order for interlocutory appeal. Because the parties took the same position as each other in the district court—arguing that judicial approval is not required—Public Citizen Litigation Group moved to be appointed amicus curiae in support of the decision below. The U.S. Court of Appeals for the Second Circuit granted the motion, and PCLG participated in oral argument.
On December 6, 2019, the Court of Appeals held that judicial approval is not required of Rule 68 offers of judgment settling FLSA cases. Judge Calabresi “respectfully, but emphatically” dissented. We then filed a motion for leave to file a petition for rehearing en banc. On January 7, 2020, the court granted the motion and ordered the appellees to file a response.