Full opinion text
MEMORANDUM AND ORDER NINA GERSHON, District Judge: On March 14, 2008, Magistrate Judge Cheryl L. Poliak issued a detailed and comprehensive fifty-six page Report and Recommendation (“R & R”) on five separate motions made in this case. Judge Poliak advised the parties that any objections had to be filed within ten days and that “[fjailure to file objections within the specified time waives the right to appeal the District Court’s order. See 28 U.S.C. Section 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).” Defendant has filed what purport to be Objections to the R & R but which recite only that defendant objects to Judge Poliak’s conclusions adverse to the defendant (for example, “Defendant objects to the Recommended Ruling on Plaintiffs motion for an Order of contempt based upon Magistrate Judge Poliak’s December 6, 2006 Order, to the extent that it recommends that factual and legal findings adverse to Defendant be made, and Plaintiffs motion be granted”) and which refer the court only to defendant’s prior submissions and the transcripts. Plaintiffs, in response, state their disagreement with defendant’s “conclusory objections.” Under Rule 72(b) of the Federal Rules of Civil Procedure, a party may object to a magistrate judge’s report and recommendation by serving and filing “specific written objections.” An objection of the sort made here does not constitute a specific written objection within the meaning of Rule 72(b). See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). In Mario, the Court of Appeals found plaintiffs statement in his objections, with respect to his Title VII claim, “not specific enough to preserve this claim for review,” where plaintiff said only that it was error to deny his motion on the Title VII claim “for the reasons set forth in Plaintiffs Memorandum of Law in Support of Motion for Partial Summary Judgment.” Id. The Court held: This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title VII claim. Merely referring the court to previously filed papers or arguments does not constitute an adequate objection under ... Fed.R.Civ.P. 72(b).... Id. Thus, for the same reasons articulated by the Court of Appeals, I consider all objections by defendant to have been waived. Indeed, the wisdom of the Court of Appeals’ ruling is illustrated by the circumstances presented here. The magistrate judge’s R & R was based both upon evidentiary findings after hearing witnesses and upon detailed, sophisticated legal analyses on a multitude of issues. To allow a party to trigger full de novo review by the district judge on the basis of the type of objections made here would make a mockery of the role of magistrate judges in fulfilling their important and well-recognized responsibilities. As the Supreme Court has noted, “[gjiven the bloated dockets that district courts have now come to expect as ordinary, the role of [magistrate judges] in today’s federal judicial system is nothing less than indispensable.” Peretz v. United States, 501 U.S. 923, 928, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (quotation omitted). Rather than adding to the efficiency of the district courts, the magistrate judges’ labors would be largely wasted if Rule 72(b)’s requirements were ignored. Finally, while I do not waive the objections, cf. Mario, 313 F.3d at 766, I have reviewed the R & R for clear error on its face. See Urena v. People of the State of New York, 160 F.Supp.2d 606, 609-10 (S.D.N.Y.2001). Doing so, I find the R & R’s factual findings and conclusions of law to be thorough and soundly based. Not only has Judge Poliak engaged in a comprehensive analysis of the applicable legal principles but she has done so with sensitivity to the underlying issues and to the particular factual circumstances presented in this case. I adopt her R & R in its entirety and therefore make the following rulings: 1. Plaintiffs’ request for an order of contempt is denied but their request for sanctions is granted in that (a) to the extent that plaintiff Bowens or any other of the putative class members, with the exception of Marti, may have received payment from defendant, they are permitted to retain their payments; (b) defendant is directed to disclose to plaintiffs any documents relating to communications between defendant and the putative class members; and (c) plaintiffs’ counsel is awarded reasonable attorney’s fees and costs incurred in connection with their motion for sanctions. The amount to be awarded is to be determined by Judge Poliak, who may set a schedule for the resolution of this issue. 2. Defendant’s motion to dismiss the claims of plaintiff Bowens on grounds of mootness based upon defendant’s offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure is denied. 3. Plaintiffs’ motion to have their case certified for collective action notice is granted. In order to facilitate the giving of notice, the defendants are ordered, within 20 days, to provide to plaintiffs’ counsel the names, last known contact information, employment dates, and last four digits of the social security numbers of all current and former Atlantic employees who, during the past three years, held the position of janitorial or maintenance worker or performed such duties at any Atlantic Maintenance Corp. site. With respect to the plaintiffs’ proposed form of notice, Judge Poliak’s recommendations are adopted in their entirety. Thus, defendants’ objection to the language directing potential plaintiffs to contact plaintiffs’ counsel for further information is rejected. However, the notice should be revised to instruct that the Consent Forms be sent to the Clerk of Court. Also, potential plaintiffs should be given 60 days to opt-in. Within two weeks, in accordance with Judge Poliak’s direction at page 47 of the R & R, the parties are to meet and confer and propose to her a revised form of notice. 4. Defendant’s motion to disqualify Bowens’ attorneys from representing anyone in this action is denied. 5. Plaintiffs’ motion for a protective order to prevent defendant and its officers, agents, and employees from communicating with anyone involved in this case is granted. Judge Poliak is authorized to enforce this order. SO ORDERED. REPORT AND RECOMMENDATION CHERYL L. POLLAK, United States Magistrate Judge. On February 24, 2006, Luis Marti (“Marti”), individually and on behalf of all other persons similarly situated, commenced an action against defendant Atlantic Maintenance Corp. (“Atlantic”) pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), seeking unpaid wages for overtime work under the New York Labor Law, reimbursement for deductions improperly made by defendant from wages, and liquidated damages. Plaintiff Arquis D. Bowens (“Bowens”) initially filed a consent to join the action on July 17, 2006. On November 16, 2006, this Court issued a Report and Recommendation, recommending that Mr. Marti’s claim be dismissed based on his voluntary withdrawal from the action. Thereafter, on December 1, 2006, plaintiff Bowens filed a Second Amended Verified Complaint and Jury Demand, seeking to represent a class of non-exempt employees of defendant who provided janitorial and maintenance services and who did not receive overtime compensation or who had improper deductions made from their wages. (Am. Compl. ¶ 8). Currently pending before this Court are 1) plaintiffs’ motion for contempt and to disqualify defendant’s counsel; 2) defendant’s motion to dismiss; 3) plaintiffs’ motion for certification of this case as a collective action; 4) defendant’s motion for disqualification of plaintiffs’ counsel, which includes a motion to compel plaintiff Bow-ens to testify about his decision to remain in the case; and 5) plaintiffs’ motion to prevent defendant from communicating with anyone involved in the case. FACTUAL AND PROCEDURAL BACKGROUND According to the initial Complaint filed by former plaintiff Luis Marti, defendant Atlantic is a New York corporation with its principal place of business located in Brooklyn, New York, which provides janitorial and maintenance services to various clients. (Compl. ¶¶ 7, 22). Marti alleged that he was an employee of Atlantic who worked as a field supervisor for the defendant from approximately February 2005 until December 2005. {Id. ¶ 23). According to the Marti Complaint, Marti often worked in excess of 40 hours per week, and yet defendant did not pay overtime compensation of one and one-half times the regular hourly rate; further, defendant took improper deductions from plaintiffs wages, all in violation of the FLSA, New York Labor Law and New York State Department of Labor regulations. {Id. ¶ 25). Marti further alleged that, despite his title and position, he was a non-exempt employee with no managerial responsibilities or authority. {Id. ¶¶ 23, 25). Plaintiffs further alleged that defendant employed other individuals in positions that required little skill and no capital investment and who had no managerial duties or responsibilities. {Id. ¶ 26). Like plaintiff Marti, it was alleged that these non-exempt individuals worked in excess of 40 hours a week and yet were not paid the requisite overtime compensation and also had improper deductions taken from their wages. {Id. 1127). Plaintiffs further alleged that although the exact number of employees was unknown, it was estimated that there were approximately 200 prospective members of the class, most of whom would be unable to afford to bring their own individual action. {Id. ¶ 9). Following the commencement of the action by Marti, a number of additional employees of Atlantic filed consents to become parties in the action. Consents were filed by Michael Craig on March 27, 2006; by Jason Edwards on June 6, 2006; and by Anthony Carter and Dwelon Edwards, along with Mr. Bowens, on July 17, 2006. A stipulation extending the defendant’s time to answer was entered into by the parties on September 27, 2006 and thereafter, before any answer was filed, counsel for Atlantic submitted a letter to the Court transmitting a copy of a letter addressed to the Court from Marti. In this letter, dated November 6, 2006, Marti requested an adjournment of the initial conference set by the Court and indicated that he wished to withdraw his ease against Atlantic based on a settlement entered into with the company through the Wage and Hour Office in Trenton, N.J. Based on the letter from Mr. Marti, this Court then issued a recommendation, dated November 15, 2006, that his claims be dismissed. On November 20, 2006, the Court held a conference at which time Marti’s former counsel represented that there were other potential class members who wished to proceed with the case. Accordingly, the Court, rather than recommending dismissal of the entire action, granted counsel time to file an amended verified complaint with new plaintiffs or to notify the court that they were willing to dismiss the case. (Minute Entry dated November 20, 2006). Following the conference, this Court received a letter dated November 30, 2006, from plaintiffs’ counsel, requesting an “emergency in-person conference for a protective order prohibiting Defendant Atlantic Maintenance Corp., and its officers, agents and employees from directly contacting the named Plaintiffs and class members, including but not limited to Messrs. Marti and Craig, for the purpose of threatening or buying off class representatives or for the purpose of discussing the allegations made in this case without the involvement of Plaintiffs’ counsel and the Court.” (Pis.’ Nov. 30, 2006 Letter at 1). In their letter, plaintiffs’ counsel indicated that they had become aware of two class members who, “[a]lmost immediately after retaining counsel and approving the filing of court papers,” withdrew from the case by faxing letters discharging plaintiffs’ counsel. (Id.) Counsel’s letter went on to further assert that after Marti withdrew from the case, Michael Craig retained plaintiffs’ counsel, who then moved on November 27, 2006 to substitute Craig for Marti. (Id.) Two days later, on November 29, 2006, Mr. Craig sent a letter seeking to discharge plaintiffs’ counsel. (Id., Ex. B). Although plaintiffs’ counsel refrained from directly accusing defendant and its principals of making threats or improper settlement offers to the class members without conferring with their counsel, plaintiffs’ counsel felt that the conduct was such that an inquiry into defendant’s conduct should be held along with the issuance of an order prohibiting defendant from negotiating with the named plaintiffs and other absent class members. (Id. at 3). Based on the plaintiffs’ counsel’s representations, this Court, at a status conference held on December 6, 2006, issued a temporary Order. In that Order, the Court directed the parties to brief plaintiffs’ motion for a protective order and Ordered as follows: “Defendant agree[s] not to discuss litigation with putative class members in [interim.]” (Minute Entry dated December 6, 2006). Defendant’s counsel, Israel Kornstein, Esq., and Atlantic’s principals, Patrick DeSimone and David Goldberg, were present at that conference as well as at the January 30, 2007 conference at which the Court ordered that the temporary order was to remain in place as to both parties. (Minute Entry dated January 30, 2007). DISCUSSION A. THE CONTEMPT MOTION By letter dated February 17, 2007, plaintiffs move for an order of contempt based on defendant’s alleged violation of this Court’s Order of December 6, 2006. (Pis.’ Feb. 17, 2007 Letter at 1). Plaintiffs contend that DeSimone and Goldberg improperly directed one of their employees to offer money to plaintiff Bowens “to drop this case and discharge his attorneys.” (Id. at 2). 1. Standards for Contempt It is well established that “ ‘[t]he power to punish for contempts is inherent in all courts.’ ” Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (quoting Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1873)); see also People v. Terry, 45 F.3d 17, 23 (2d Cir.1995). The underlying concern is “ ‘disobedience to the orders of the [j]udiciary,’ ” not “ ‘merely the disruption of court proceedings.’ ” Chambers v. NASCO, Inc., 501 U.S. at 44, 111 S.Ct. 2123 (quoting Young v. United States, 481 U.S. 787, 798, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987)); see also People v. Terry, 45 F.3d at 23 (noting that the power of contempt is “ ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases’”) (quoting Chambers v. NASCO, Inc., 501 U.S. at 43, 111 S.Ct. 2123 (internal quotations omitted)); United States v. D-M Sales Corp., 903 F.Supp. 431, 433 (E.D.N.Y.1995). Thus, an individual who fails to obey a valid order of the court may be subject to both civil and criminal penalties for his actions. See United States v. Petito, 671 F.2d 68, 72 (2d Cir.) (citing Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957)), cert. denied, 459 U.S. 824, 103 S.Ct. 56, 74 L.Ed.2d 60 (1982). The primary difference between orders of civil and criminal contempt is their purpose. Criminal contempt is used to punish the contemnor or vindicate the court’s authority; civil contempt seeks to coerce the con-temnor into compliance with the court’s order or to compensate the complaining party for losses incurred as a result of the contemnor’s conduct. See Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 115 (2d Cir.1988); In re Grand Jury Witness, 835 F.2d 437, 440-41 (2d Cir.1987), cert. denied, 485 U.S. 1039, 108 S.Ct. 1602, 99 L.Ed.2d 917 (1988); In re Weiss, 703 F.2d 653, 661 (2d Cir.1983); New York State Nat’l Org. for Women v. Terry, 697 F.Supp. 1324, 1329 (S.D.N.Y. 1988). An order of civil contempt may issue pursuant to Title 18, United States Code, Section 401, which authorizes a federal court to punish “by fine or imprisonment, or both, at its discretion” any contempt of the court’s authority, such as “[m]isbehav-ior of any person in [the court’s] presence or so near thereto as to obstruct the administration of justice” or “[disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401 (2002). The court also “has the inherent power to hold a party in civil contempt in order ‘to enforce compliance with an order of the court or to compensate for losses or damages.’ ” Powell v. Ward, 648 F.2d 924, 931 (2d Cir.) (quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949)), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981); see also Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir.1979); United States v. D-M Sales Corp., 903 F.Supp. at 433; New York State Nat’l Org. For Women v. Terry, 697 F.Supp. at 1329. There are three essential elements which must be established before a party can be held in civil contempt: 1) there must be an order that is “clear and unambiguous,” Powell v. Ward, 643 F.2d at 931 (citing International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 75-76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967)); 2) the proof of noncompliance with that order must be “ ‘clear and convincing,’ ” id. (quoting NLRB v. Local m, 428 F.2d 994, 1001-02 (2d Cir. 1970)); and 3) it must be shown that the contemnor has not “ ‘been reasonably diligent and energetic in attempting to accomplish what was ordered.’ ” Id. (quoting Aspira of New York, Inc. v. Bd. of Educ., 423 F.Supp. 647, 654 (S.D.N.Y.1976)). See also King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir.1995) (holding that “[a] contempt order is warranted only where the moving party establishes by clear and convincing evidence that the alleged con-temnor violated the district court’s edict”); United States v. D-M Sales Corp., 903 F.Supp. at 433. The court’s order must leave “ ‘no uncertainty in the minds of those to whom it is addressed,’ ” and one “ ‘must be able to ascertain from the four corners of the order precisely what acts are forbidden.’” King v. Allied Vision, Ltd., 65 F.3d at 1058 (citations omitted). Moreover, in determining whether civil contempt sanctions should be imposed for the purpose of making a contemnor comply with an order, the Supreme Court has set forth several factors for the courts to consider: “(1) the character and magnitude of the harm threatened by continued contempt, (2) the probable effectiveness of the proposed sanction, and (3) the financial consequence of that sanction upon the contemnor.” In re Grand Jury Witness, 835 F.2d at 443 (citing United States v. United Mine Workers of Am., 330 U.S. 258, 304, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). Since a contempt order is a “potent weapon,” International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. at 76, 88 S.Ct. 201, courts should be cautious in imposing this sanction if “ ‘there is a fair ground of doubt as to the wrongfulness of the defendant’s conduct.’ ” King v. Allied Vision, Ltd., 65 F.3d at 1058 (quoting California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 28 L.Ed. 1106 (1885)). 2. The Contempt Hearing a. Bowens’s Testimony On March 12, 2007, plaintiff Arquis Bow-ens testified that on or about November 20, 2006, he was contacted by his former brother-in-law Leslie Johnson, a supervisor for defendant Atlantic. (Mar. 12 Tr. at 7, 10). He then went to the office of defendant, where he met with Patrick DeSimone, one of defendant’s principals, and another individual whose name he could not recall. (Id. at 7). They offered to give him back his job if he signed an affidavit. (Id.) He told them he would get back to them but he first wanted to consult someone; he then contacted Jeffrey Gottlieb, one of his current attorneys. (Id. at 7-8). Mr. Bowens also testified that on or about December 1, 2006, he signed a declaration reciting what had occurred in the Atlantic offices on or about November 20, 2006. (Id. at 9-10; Pis.’ Ex. 1 (Declaration of Arquis Bowens, dated December 1, 2006)). Bowens testified that thereafter, in February 2007, Leslie Johnson approached Bowens and indicated that Atlantic was willing to pay Bowens $700 if he would drop out of the lawsuit. (Id. at 10). Bow-ens told Johnson that he was out of work but was not willing to drop the case for $700 because he felt that the company owed him more than that. (Id.) Mr. Bow-ens identified a Declaration that he signed on February 11, 2007 reflecting what had transpired between Bowens and Johnson on February 8, 2007. (Id. at 13; Pls.’ Ex. 2 (Declaration of Arquis Bowens, dated February 11, 2007)). On or about February 15, 2007, Johnson contacted Bowens again and told him that defendant had “upped the price from $700 to $1,500.” (Id. at 13). Bowens, who needed the money, told Johnson to contact the defendant and indicate Bowens’s willingness to accept the offer of $1,500. (Id. at 14). Johnson told Bowens that if he was willing to drop the case, he should go to the office of defendant on February 16, 2007. (Id.) Bowens denied that he had done anything to contact Johnson; he claimed that it was Johnson who had approached Bowens. (Id.) On February 16, 2007, at 8:00 a.m., Bow-ens reported to Atlantic’s office to receive his $1,500 payment. (Id.) Mr. Goldberg met Bowens in the office and told Bowens to contact his counsel first and tell them that he was dropping out of the case. (Id.) Since Bowens was unable to get in touch with any of the attorneys, he left and “was at a standstill for a while.” (Id. at 15). Bowens testified that Johnson contacted him again and told Bowens to contact Goldberg, who gave Bowens the fax number for Brian Bromberg, another of Bow-ens’s attorneys. (Id. at 15-16). Bowens brought a letter to the office at 4:00 that evening, where Goldberg watched Bowens sign his name. (Id. at 16). Bowens brought a copy of the letter he had faxed to Bromberg’s office earlier that day to Atlantic, and a second copy of the letter was mailed to the court by Mr. Goldberg. (Id. at 15-16, 40). After Bowens sealed the envelope, Goldberg handed Bowens $1,500 in cash. (Id. at 16). Out of the $1,500 he had received, Bowens gave $200 to Mr. Johnson. (Id. at 17). According to Bowens, he then went “down south” and only returned in order to attend the court hearing on March 12, 2007. (Id. at 17). He testified that on Saturday, March 10, 2007, Mr. Johnson approached him “kind of upset and angry ... trying to convince [Bowens] not to go to court.” (Id.) He accused Bowens of using him to get money from defendant, to which Bowens responded, “No.... They used me. I didn’t use you.” (Id.) Bowens then told him that if Atlantic really did not want him to come to court, they could pay him $600. (Id.) According to Bowens, he was approached by Johnson before he left for court that morning. (Id.) Johnson indicated that Atlantic was willing to pay the $600 but only after 5:00 that afternoon after it was clear he had not come to court. (Id. at 17-18). When asked if he wanted to continue as a plaintiff in the case, Mr. Bowens testified, “I mean, yes, I feel like that, you know, I was robbed out of my money. I worked hard for that company and then I feel that yeah, they owe me — I accepted money from them, yes, but I feel that I was fired after I signed on to this lawsuit....” (Id. at 18-19). He explained that he signed on to the lawsuit on July 13, 2006 (see Pis.’ Ex. 3 (Bowens’s Notice of Consent)), and then the company hired an individual named Greg Mayo to “weed” out and fire all of the employees of Atlantic who had joined the lawsuit. (Id. at 19). Indeed, Bowens was fired in September 2006. (Id.) Bowens testified that he could discern no other basis on which he was fired. He had worked for eight months when one day, his shirt was untucked at work and Mr. DeSimone “screamed” at him, “ ‘Tuck in your shirt’ ” and then tried to give Bowens a day suspension. (Id. at 21-22). Bowens indicated that Mr. DeSimone’s behavior demonstrated that “he knew that I was on the lawsuit.” {Id. at 22). On cross-examination, counsel for defendant noted that in his Declaration documenting the events of November 2006, submitted as Plaintiffs’ Exhibit 1, Bowens stated that he had received a telephone call from DeSimone, not that he was contacted by Johnson, as he had testified during the hearing. (Id. at 23). Bowens explained that the statement in the Declaration was a mistake because at around that time, he did have a meeting with DeSimone, but he conceded that he had not received a phone call from DeSimone. (Id.) When asked when he first saw the Declaration, Bowens testified that it was either on the 20th or 21st of November, 2006. (Id. at 25). The document, however, contains a date of December 1, 2006 and when shown the document, Mr. Bow-ens changed his testimony to indicate that that was actually the date that he signed the document. (Id. at 26-27). Mr. Bowens confirmed on cross-examination that he had been offered $700 and $1,500 to withdraw from the case. (Id. at 28). He also acknowledged that he had been informed of an offer of “$700 ... something dollars. But I turned the offer down.” (Id. at 29). He indicated that the offer, which counsel for defendant indicated was an offer of judgment made pursuant to Rule 68 of the Federal Rules of Civil Procedure, was conveyed by Johnson and not by Bowens’s attorneys. (Id. at 29-30). He testified that at different times, Johnson told him he was being offered both $700 and $772. (Id. at 30). He also clarified his earlier testimony that although he knew that some of the other opt-in plaintiffs had been fired, he did not know their specific employment histories. (Id. at 35). b. Goldberg’s Testimony David Goldberg, one of the principals of Atlantic, testified that Bowens was employed by Atlantic from January or February 2006 to August 2006. (Mar. 15 Tr. at 7). According to Goldberg, Bowens “basically quit” in August 2006 after he objected to having been assigned to work in a particular area of Jersey City, New Jersey. (Id.) His supervisor called Bowens at home to try to reconcile the situation, but Bowens refused to go back to work. (Id. at 7-8). Goldberg testified that the next time he saw Bowens was on November 22, 2006 when Bowens appeared at Atlantic’s Journal Square location looking for a job. (Id. at 8). At that time, Goldberg admitted speaking to Bowens about the case and told him that Marti was no longer part of the case. (Id. at 8). Goldberg asked Bow-ens if he would be interested in resigning as an opt-in plaintiff. (Id.) Bowens responded by asking, “ ‘What’s in it for me,’ ” to which Goldberg responded, “ ‘Nothing.’ ” (Id.) Goldberg told Bowens that he had reviewed Bowens’s pay stubs and payroll records and that Atlantic owed Bowens nothing. (Id.) Bowens indicated that if he was “going to put [his] pen to the paper [he would have] to get something for it.” (Id.) Goldberg told Bowens that he would take it into consideration but upon discussing it with DeSimone, they decided that “he was a terrible employee; he was never really following directions.” (Id. at 8-9). The next time Goldberg spoke to Bow-ens was on February 15, 2007 at the Journal Square office, when Bowens came in looking for his W-2 form. (Id.) Goldberg did not understand why Bowens did not simply contact the secretary in the main office in Brooklyn. (Id.) Goldberg had Mark Schuyler, an operations manager, call the Brooklyn office for Bowens and he confirmed that the W-2 would be mailed to Bowens that day. (Id. at 9-10). Goldberg testified that Bowens then told him that he really did not want to be part of the case. (Id. at 10). Goldberg responded that he had been instructed not to speak to Bow-ens about the case and testified that Bow-ens “actually thanked [Goldberg]” for hiring him. (Id.) Goldberg testified that on February 16, 2007, Bowens came to the Journal Square office again and mentioned that he had reviewed the W-2 form and thought there was something wrong with the federal withholding. (Id. at 11). He mentioned again that he wanted out of the case and that he had attempted to call his attorneys but they had not returned his phone call. (Id.) He told Goldberg that he was moving south and that he did not want to be part of the case. (Id.) Goldberg reiterated the fact that he could not speak about the case, but he gave Bowens the fax number for Bowens’s lawyer and the Court’s address. (Id. at 11-12). Goldberg denied having any contact with Bowens as alleged in Bowens’s December 1, 2006 affidavit, except he conceded that he was present for the November 22, 2006 meeting at which DeSimone was also present. (Id. at 15-16). He also denied Bow-ens’s claim that at the meeting, DeSimone and Goldberg offered to give Bowens back his job if he signed an affidavit agreeing to drop his claim. (Id. at 20). Goldberg also denied telling Leslie Johnson to speak to Bowens about the case (id. at 24), and he testified that both he and DeSimone made the decision that they would not contact former company employees. (Id. at 19). Mr. Goldberg also explained that it would make no sense for Johnson to offer Bow-ens $700 as Bowens claimed at that time because the company had, as of January 9, 2007, already made the Rule 68 Offer for $772.00. (Id. at 25-26; Def.’s Ex. A (Rule 68 Offer of Judgment)). On cross-examination, Bowens’s counsel confirmed that Goldberg and DeSimone were present in court on December 6, 2006 when this Court issued the order that neither of Atlantic’s principals or its employees were to communicate with any employees or former employees about this case. (Id. at 26-27). Goldberg denied sending Johnson to visit Bowens and denied making any payment to Bowens apart from his salary. (Id. at 51-52). Goldberg also acknowledged that on or about January 31, 2007, he had received the Court’s Order of January 30, 2007 extending the temporary Order of December 6, 2006. (Id. at 28-29; Pis.’ Ex. 4 (Email with Minute Entry of January 30, 2007 attached)). He testified that he believed that DeSimone also saw the Order and both were aware that they were not to speak about the case. (Id. at 29). He denied speaking to any employees or former employees about the lawsuit even prior to the Court’s December 6, 2006 Order (id. at 30-31), and he did not recall ever speaking to Johnson about the case. (Id. at 31). With respect to Marti, Goldberg testified that he had stopped working for Atlantic in December 2005 and Goldberg denied paying him any money to drop the case. (Id. at 32). Goldberg denied that he spoke to Marti about the case, except that during a separate court proceeding in Trenton, Marti expressed to Goldberg that he was glad he had worked for Atlantic and that the case was resolved for him. (Id.) Plaintiffs submitted four letters from Marti, Michael Craig, Jason Edwards and Dwelon Edwards discharging plaintiffs’ attorneys, and asked Goldberg if Atlantic had paid any of them to withdraw from the lawsuit or discharge their attorneys. (Id. at 43-47; Pis.’ Exs. 5, 6, 7, 8 (Letters of discharge from Luis Marti, Michael Craig, Jason Edwards and Dwelon Edwards, respectively)). Goldberg not only denied paying them any money, he also denied having any conversation with them regarding the lawsuit. (Id. at 48-49). Goldberg denied preparing the letters and denied having any knowledge as to who composed the language in the letters. (Id. at 49-50). When shown Defendant’s Exhibit C, a copy of the letter sent by Bowens to the Court indicating his desire to resign from the case, Goldberg testified that the first time he saw that letter was when it was shown to him by Atlantic’s attorney. (Id. at 57-58). He denied that he suggested the language and explained that he gave Mr. Bromberg’s fax number to Bowens because Bowens had complained that he was unable to get in touch with his attorneys. (Id. at 58). The witness denied any knowledge as to who mailed a copy of the letter to the Court, and he denied offering Bowens $600 in exchange for not appearing to testify in Court. (Id. at 59). In denying that there was a payment of $1,500 in cash to Bowens, Goldberg explained that the only people in the company with access to the company’s money are Goldberg and DeSimone. (Id. at 60). c. DeSimone’s Testimony Patrick DeSimone, the other principal of Atlantic, testified that the first time he spoke to Bowens after he left Atlantic’s employ was November 22, 2006. (Id. at 63). He denied calling Bowens on November 20, 2006 or at any other time thereafter. (Id. at 64-65). He also denied telling Bowens that the case was going nowhere because Marti had settled. (Id.) He denied being asked if the company would pay Bowens for all hours previously worked. (Id. at 66). He did acknowledge telling Bowens that Atlantic did not owe him any money (id.), but denied telling Bowens that unless he dropped the lawsuit, Atlantic would not re-hire him. (Id. at 67). He denied making an appointment to meet with Bowens on December 4, 2006 and he indicated that he did not believe that Johnson had a conversation with Bowens on February 8, 2007. (Id. at 68-69). He also denied having any conversation with Johnson about contacting Bowens (id. at 70-71), testifying that he never talked to Johnson about the case. (Id. at 86-87). According to DeSimone, he never “[a]t any time” discussed the case with Mr. Craig or either of the Edwards and he was not aware that any monies were paid to them to drop the case. (Id. at 72-73). He stated that he played no role in preparing and had no knowledge as to who prepared the letters submitted by the various employees seeking to withdraw from the case but he did acknowledge that Exhibits 7 and 8, the letters from Jason and Dwelon Edwards, were faxed from Atlantic’s Brooklyn office. (Id. at 74-75). He testified that only he, Goldberg, and the office manager, Sandra Batts, are authorized to use the fax machine, but acknowledged that “other people ... have access to our office.” (Id. at 76-77). DeSimone acknowledged being aware of the Court’s December 6, 2006 Order and he conceded that he received the January 30, 2007 Order extending the terms of the December 6 Order as well. (Id. at 81-83). He understood that he was not to discuss the case with any employees or former employees and he had no knowledge as to whether anyone asked Johnson to speak to Bowens. (Id. at 83-84). He flatly denied offering Bowens money not to appear (id. at 84), and he denied making any threats to get any of the other individuals to drop the case. (Id. at 85-86). d. Johnson’s Testimony Leslie Johnson, the final witness to appear at the hearing, testified that he is a supervisor for Atlantic assigned to the Journal Square office. (Id. at 92). He testified that he knows Bowens because he used to date Bowens’s sister and got Bow-ens the job at Atlantic. (Id.) He found out in late November 2006 that Bowens was involved in the lawsuit because Bowens came to the office and asked Johnson if he could get his job back. (Id. at 93). According to Johnson, Bowens then spoke to DeSimone and Goldberg, but Johnson was not present during the conversation. (Id. at 93-94). Johnson denied having any knowledge regarding the statements in Bowens’s declaration, denied ever speaking with Bowens about the lawsuit and denied being asked to talk to Bowens about the case. (Id. at 94-95). He further denied the truth of Bowens’s assertions in the February 11, 2007 Declaration, including the claims that he made offers of money to get Bowens to drop the case. (Id. at 96-97). He did admit to speaking to Bowens on February 8, 2007 when Bowens asked Johnson why he had not yet received his W-2 form, but Johnson simply told him to contact the main office in Brooklyn. (Id. at 97-98). About a week later, Bowens came back to the office, again inquiring about his W-2, and he spoke to Goldberg at that time. (Id. at 98). Johnson testified that he was told by Goldberg and DeSimone not to speak to any of the employees about the lawsuit (id.), and that he had never had any conversations with either of them about the case. (Id. at 107). On cross-examination, Johnson denied that he went to Bowens’s house on March 10, 2007 to convince him not to testify. (Id. at 99). After further reflection, however, Johnson conceded that he had spoken with Bowens that evening, on a corner near Bowens’s home. (Id. at 102, 109). According to Johnson, Bowens and Bow-ens’s mother drove past Johnson on their way home and Bowens then joined Johnson on the corner. (Id. at 102). He asked Johnson to share some of the beverage that Johnson was drinking and then, without further conversation, took the bottle back to his house. (Id. at 103). Johnson spoke to Bowens again in the evening of March 12, 2007, at the same location, after Bowens had already testified. (Id.) According to Johnson, Bowens informed him that Johnson would probably have to go to court because his name kept coming up. (Id.) Johnson, however, denied offering Bowens any money not to testify and denied speaking to him earlier in the day. (Id. at 103-04). He denied offering him any money at all related to the case and he denied paying Bowens $1,500. (Id. at 104-06). He also denied discussing the case with any of the other opt-in employees or with Goldberg or DeSimone. (Id. at 107,109). At the conclusion of the testimony, counsel for defendant noted that Bowens had never mentioned a conversation with Johnson at which his mother was present and therefore, before Bowens’s mother testified, he requested that Bowens be brought back to court for further questioning. (Id. at 117). Counsel also moved to inquire as to what, if anything, was said between Bowens and his counsel such that Bowens changed his mind and decided to remain in the case after seeking to withdraw, a line of questioning that the Court precluded on grounds of privilege. (Id. at 119-20). The Court urged defendant’s counsel that if he wish to pursue this line of questioning, he should submit case-law authority for breaching the attorney-client privilege in these circumstances. (Id. at 120). 3. Attorney-Client Privilege Dispute By letter dated March 30, 2007, defendant moves for an Order to compel the testimony of plaintiff Bowens on the subject of his change of opinion regarding his inclusion as a plaintiff in this case. (Def.’s March 30, 2007 Letter at 1-2). Specifically, defendant seeks information about any conversations between Bowens and his attorneys between February 16, 2007, when plaintiff sent his letter indicating his desire to resign from the case, and March 12, 2007, when plaintiff testified before this Court that he still wishes to be a plaintiff in the case. (Id. at 2). Defendant contends that “Bowens has been pressured by one or more of his three law firms to continue in a litigation from which he wants ‘to resign.’ ” (Id.) In support of its request, defendant argues that actions under the FLSA have become “ ‘cash cows’ ” for plaintiffs’ attorneys, and that these attorneys therefore have an interest in rejecting settlement offers so that they can recover fees and costs. (Id. at 2-3). Defendant alleges that the failure of Bowens’s attorneys’ to communicate defendant’s Rule 68 offer is an indication of their improper desire to extend this litigation against Bowens’s wishes. (Id. at 3). Defendant requests documents and all information relating to the fee arrangement between Bowens and his counsel, arguing that such information is not privileged. (Id. at 4). At the hearing before this Court on April 27, 2007, defendant requested the disclosure of the retainer agreement between plaintiff Arquis Bowens and his counsel. (Apr. 27 Tr. at 14, 16). Defendant again asserted that the agreement could be relevant to its argument that Mr. Bowens’s counsel did not convey a settlement offer made by defendants. (Id. at 16). The Court agreed to review the document in camera to assess whether it was relevant to the present proceedings (id. at 17), and Bowens’s counsel submitted the agreement under hard copy, attached to a letter dated May 1, 2007. Having carefully reviewed the document, which appears to be a standard retention agreement, the Court finds that it does not relate to the present proceeding. Plaintiffs’ counsel have already admitted during the hearing before this Court that they are to be paid on a contingency basis, and the document is unnecessary to defendant’s argument on the offer of settlement. Given the irrelevance of this retention agreement, and that it raises privilege concerns, this Court declines to make it available to defendant, and accordingly Orders it to be filed under seal. 4. Magistrate Judge’s Authority Under the Federal Magistrates Act, 28 U.S.C. § 636(e), federal magistrate judges are authorized to exercise contempt authority in certain limited circumstances. These include summary criminal contempt authority, which may be imposed by the magistrate judge for misbehavior “in the magistrate judge’s presence so as to obstruct the administration of justice,” 28 U.S.C. § 636(e)(2), as well as criminal contempt and civil contempt authority in misdemeanor cases and cases where the magistrate judge presides with the consent of the parties. 28 U.S.C. §§ 636(e)(3), (4). In all other instances where a person has committed an act constituting a contempt in a proceeding before the magistrate judge, the Act sets forth a certification procedure whereby: the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge. 28 U.S.C. § 636(e)(6)(B)(iii). Under the certification process, the magistrate judge may conduct a hearing, see, e.g., Church v. Steller, 35 F.Supp.2d 215, 217 (N.D.N.Y.1999); British Int’l Ins. Co. v. Seguros La Republica, S.A., No. 90 CV 2370, 2001 WL 958975, at *7 (S.D.N.Y. Aug. 22, 2001), but the magistrate judge “functions only to ‘certify the facts’ ” and not to issue an order of contempt. Church v. Steller, 35 F.Supp.2d at 217 (citing Litton Sys., Inc. v. AT & T, 700 F.2d 785, 827 (2d Cir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984)); see also Stein Indus., Inc. v. Jarco Indus., Inc., 33 F.Supp.2d 163, 165-66 (E.D.NY.1999); Gomez v. Scoma’s, Inc., No. C-94-4452, 1996 WL 723082, at *3 (N.D.Cal.1996) (holding that a magistrate judge’s duty “is simply to investigate whether further contempt proceedings are warranted, not to issue a contempt order”). In certifying the facts under Section 636(e), the magistrate judge’s role is “to determine whether the moving party can adduce sufficient evidence to establish a prima facie case of contempt.” Church v. Steller, 35 F.Supp.2d at 217 (citing Proctor v. State Gov’t of N.C., 830 F.2d 514, 521 (4th Cir.1987)). The district court, upon certification of the facts supporting a finding of contempt, is then required to conduct a de novo hearing at which issues of fact and credibility determinations are to be made. See Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 907-08 (3d Cir.1992) (holding that it was error for the district court not to conduct a de novo hearing after the magistrate judge issued a certification of contempt). Where, however, the magistrate judge declines to certify the conduct to the district court for a determination of contempt, the “district court may not proceed further on a motion for contempt where the conduct at issue occurred before a magistrate judge.” Church v. Steller, 35 F.Supp.2d at 217 (citing In re Nova Biomedical Corp. v. i-STAT Corp., 182 F.R.D. 419, 423-24 (S.D.N.Y.1998)); see also In re Kitterman, 696 F.Supp. 1366, 1370 (D.Nev.1988) (noting that magistrate’s decision not to certify to district court “disposes] of the matter”). 5. Analysis Turning to the three elements that must be established before an Order of contempt issues, this Court finds that the Court’s December 6, 2006 Order not to discuss the pending litigation with past or current employees was “clear and unambiguous.” Not only was the basis for the Order discussed at length in the presence of the principals of Atlantic, but counsel for Atlantic agreed voluntarily, in the presence of his clients, that there would be no discussion of the case with any employee pending this Court’s review and decision on plaintiffs’ motion for injunctive relief. Thus, the Court finds that the first element necessary to certify a contempt has been established. However, the proof of non-compliance must be “clear and convincing.” Given the testimony before the Court, the Court cannot find that plaintiffs have met this standard. Although there were certain aspects of the testimony of defendants’ witnesses that were less than credible, the Court also finds that Mr. Bowens’s testimony contained a number of inconsistencies. While the Court finds incredible Mr. Goldberg’s testimony that he gave Mr. Bromberg’s fax number and the Court’s contact information to Mr. Bowens without any discussion of the pending litigation, the Court also finds less than credible Mr. Bowens’ testimony that the company, through Mr. Johnson, paid him $1,500 to drop the case. There has been nothing presented to corroborate that testimony. In light of the fact that plaintiffs have failed to show by clear and convincing evidence that defendant violated this Court’s Order, the Court finds it unnecessary to reach the third element necessary for civil contempt, whether the alleged contemnor has been diligent in attempting to comply with the court’s orders. Given the foregoing, the Court declines to certify facts to the district court for a determination of contempt. The Court finds, however, that although plaintiffs have not sufficiently demonstrated that a certification for contempt should issue, it is apparent that there has been at least a technical violation of this Court’s Order of December 6, 2006, directing defendant not to discuss the case with any “putative class members.” (Minute Entry dated December 6, 2006). As noted above, the Court finds it difficult to believe that Mr. Goldberg, by his own admission, gave Mr. Bromberg’s fax number and the Court’s contact information to Mr. Bowens without discussing the case at all. While Mr. Goldberg’s actions may not have violated the precise purposes of the Court’s Order — namely, prohibiting defendant from influencing putative class members— they certainly violated the actual terms of the Order. In plaintiffs’ motion for an order of contempt, plaintiffs request several remedies for defendant’s perceived violation of the December 6 Order. Specifically, in addition to a request for a contempt order, plaintiffs’ requests include: that any funds paid to plaintiff Bowens and the other individuals who filed notices of consent be retained by those individuals as sanctions; that Atlantic deliver to plaintiffs all documents concerning any communications between Atlantic and any putative class member; and that plaintiffs’ counsel be awarded attorneys’ fees and costs incurred in connection with the motion for contempt. (Pis.’ Feb. 17, 2007 Letter at 3^4). The Court has the authority to sanction improper conduct simply as a matter of the court’s inherent power. This power stems from the very nature of courts and their need to be able “ ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ” Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir.2000) (citing Chambers v. NASCO, Inc., 501 U.S. at 43, 111 S.Ct. 2123). Sanctions may be imposed upon counsel or parties to a case “for bad-faith conduct or for disobeying the court’s orders” as long as the attorney or party receives a hearing. Mickle v. Morin, 297 F.3d 114, 125 (2d Cir.2002) (citing Chambers v. NASCO, Inc., 501 U.S. at 43, 49-50, 57, 111 S.Ct. 2123). Furthermore, “[a]n award of sanctions under the court’s inherent power must be based on ‘clear evidence’ and must be accompanied by ‘a high degree of specificity in the factual findings.’ ” Id. at 125-26 (citing Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir.1986)). The Court finds that, having provided defendant and defendant’s attorney with an adequate hearing in this case, and having set forth the relevant “specific[ ] factual findings,” plaintiffs’ request for sanctions should be granted. Accordingly, it is respectfully recommended that: 1) to the extent that plaintiff Bowens or any other of the putative class members, with the exception of Marti, may have received payment from defendant, they shall be permitted to retain their payments; 2) defendant be directed to disclose to plaintiffs any documents relating to communications between defendant and the putative class members; and 3) plaintiffs’ counsel be awarded reasonable attorney’s fees and costs incurred in connection with their motion for sanctions. B. DEFENDANTS’ MOTION TO DISMISS By motion filed May 14, 2007, defendant Atlantic moves to dismiss the claims brought by plaintiff Bowens on grounds of mootness based on defendant’s offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure. (Def.’s Mem. at 1). 1. The Rule 68 Offer On January 9, 2007, defendant served an offer of judgment on all counsel to plaintiff Bowens (the “Rule 68 Offer”). (See Kornstein Aff. ¶ 2, Ex. A). Defendant indicated in an accompanying letter to counsel that Atlantic arrived at the amount set forth in the Rule 68 Offer by reviewing the company’s attendance records and payroll register sheets for Mr. Bowens’ entire employment history. Based on that calculation, defendant made its Rule 68 Offer in an amount that “exceeds that to which Plaintiff could possibly recover at trial— indeed, by a significant multiple.” (Kornstein Aff., Ex. B). By letter dated January 16, 2007, counsel for plaintiff informed the district court that plaintiff intended to reject the Rule 68 Offer. (Kornstein Aff., Ex. E). Defendant now moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the plaintiffs claims on the grounds that regardless of whether plaintiff accepts the Rule 68 Offer, Bowens’s claims are moot. (Def.’s Mem. at 3). In support of the motion, defendant cites several cases in this Circuit where FLSA actions have been dismissed after a Rule 68 offer of judgment has been made. (Id. (citing Darboe v. Goodwill Indus. of Greater N.Y. & N. N.J., Inc., No. 05 CV 4732, 2007 WL 1120468, at *3 (E.D.N.Y. Apr. 16, 2007) (holding that a “Rule 68 offer of full damages ... deprives the plaintiff of his personal stake in the litigation and renders it moot”); Briggs v. Arthur T. Mott Real Estate LLC, No. 06 CV 0468, 2006 WL 3314624 (E.D.N.Y. Nov. 14, 2006); Ward v. Bank of New York, 455 F.Supp.2d 262 (S.D.N.Y.2006); Vogel v. Am. Kiosk Mgmt., 371 F.Supp.2d 122 (D.Conn.2005))). Plaintiffs, in opposing defendant’s motion, acknowledge that some courts in this district have “permitted the ‘buying off of putative FLSA class representatives through Rule 68 offers of judgment.” (Pis.’ Opp. at 1). However, plaintiffs contend that this case is distinguishable because 1) the plaintiffs requested permission to move for class certification prior to the filing of the Rule 68 Offer; and 2) other collective class members had opted-in to the action. (Id. at 10). Moreover, plaintiffs argue that in any event, the cases cited by defendant were wrongly decided. (Id. at 8-9). As an initial matter, plaintiffs argue that following the filing of the initial complaint by Mr. Marti, a number of individuals, including Dwelon Edwards, Jason Edwards, Michael Craig, and Anthony Carter, filed complaints or consents to opt-in. (Id. at 2). Plaintiffs contend that in each of these instances, including in Mr. Marti’s case, defendant either “bought off or intimidated [the] individuals into dropping their cases or discharging their attorneys.” (Id.) Indeed, plaintiffs presented several similarly or identically worded letters from the various opt-in members discharging plaintiffs’ counsel, two of which were faxed from defendant’s office fax machine. (See Mar. 15 Tr., Exs. 6-8). With respect to Mr. Bowens, plaintiffs allege that defendant attempted to buy him off with a payment of $1,500 in cash. (Pis.’ Opp. at 3). Although Bowens accepted the $1,500 after writing a letter of discharge, he later changed his mind and decided to continue with the case. (Id.) Plaintiffs argue that by “picking off’ each opt-in representative plaintiff through payments or Rule 68 offers of judgment, defendant is attempting to “eviscerate Congress’ provision permitting collective actions.” (Id. at 4). Plaintiffs urge this Court to follow the reasoning in Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004), where the court held that a defendant cannot render class claims moot by offering the named plaintiff the full amount requested in his individual claim. Defendant notes in reply that Weiss involved a class action brought under Rule 23 of the Federal Rules and not a collective action under the FLSA. (Def.’s Reply at 6). Defendant contends that the application of the Rule 23 case law to collective actions has been consistently rejected by the courts. (Id. (citing Darboe v. Goodwill Indus. Of Greater N. Y., N. N.J., Inc., 2007 WL 1120468, at *3)). 2. Analysis The Court’s jurisdiction is limited to actual cases and controversies. U.S. Const. Art. Ill, Sec. 2. When the defendant offers all of the relief sought by a plaintiff, the issues presented by the litigation are resolved and there is no longer a live controversy presented. See Rubery v. Buth-Na-Bodhaige, Inc., 494 F.Supp.2d 178, 179-80 (W.D.N.Y.2007) (citing Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir.1994)). Although the Second Circuit has not addressed the specific issue presented here, a number of courts have held that an offer of judgment for full damages renders the case moot and merits dismissal. See, e.g., Darboe v. Goodwill Indus. Of Greater N.Y. & N. N.J. Inc., 2007 WL 1120468, at *3. The doctrine of mootness is “based upon the case or controversy requirement of Article III of the Constitution.” Fox v. Bd. of Trs. of the State Univ. of N.Y., 42 F.3d at 140 n. 2 (citing Honig v. Doe, 484 U.S. 305, 317-18, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)), cert. denied, 515 U.S. 1169, 115 S.Ct. 2634, 132 L.Ed.2d 873 (1995). Once the case is moot, “the federal courts ‘lack[] subject matter jurisdiction over the action.’ ” Id. at 140 (quoting New York City Employees’ Ret. Sys. v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir.1992)) (alteration in original). The doctrine of mootness requires that the litigants maintain a “ ‘legally cognizable interest in the outcome’ ” of the litigation. Id. (quoting County of L.A. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). In the absence of such an interest, “federal courts are without power to decide questions that cannot affect the litigants in the case before them.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam). Any such defect in subject matter jurisdiction cannot be waived. See Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d at 140 (citing Alston v. Coughlin, 109 F.R.D. 609, 612 (S.D.N.Y.1986), and Fed. R.Civ.P. 12(h)(3)). In the context of class actions brought pursuant to Rule 23 of the Federal Rules of Civil Procedure, the same general principles of mootness apply where the case involves a potential, but yet uncertified, class action. “[I]n general, if the claims of the named plaintiffs become moot prior to class certification, the entire action becomes moot.” Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir.1994) (citing Board of Sch. Comm’rs of Indianapolis v. Jacobs, 420 U.S. 128, 129-30, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975)); see also Brown v. Philadelphia Hous. Auth., 350 F.3d 338, 343-46 (3d Cir.2003) (applying general rule that “ ‘when claims of the named plaintiffs become moot before class certification, dismissal of the action is required’ ” and holding that “no implied class certification doctrine can take the place of, or be deemed a substitute for, an appropriate grant of class certification”) (quoting Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992)). That is because in the absence of certification, there is no class action under Rule 28. See Fed.R.Civ.P. 23(c)(1); see also Baxter v. Palmigiano, 425 U.S. 308, 310 n. 1, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) (noting that even though the court had treated case as class action, the court had not certified the class under Rule 23 and therefore it was not a class action). The unnamed class members are not technically part of the action until the court has certified the class; therefore, once the named plaintiffs’ claims are dismissed, there is no one who has a justiciable claim that may be asserted. See Board of Sch. Comm’rs of Indianapolis v. Jacobs, 420 U.S. at 129, 95 S.Ct. 848 (holding action moot when named plaintiffs challenging school newspaper rules graduated and no class had been properly certified by the district court). Since there is no “case or controversy,” see id., the court is without jurisdiction to proceed further. See Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d at 140, n. 2. The circumstances are different, however, where the class has been certified in accordance with the Federal Rules. See Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (finding that certification of the class “significantly affects the mootness determination”). It is settled law that once a class has been certified, the entire action is not mooted simply because the class representative’s claim is mooted. See County of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (holding, “ ‘the termination of a class representative’s claim does not moot the claims of the unnamed members of the class’ ”) (quoting Gerstein v. Pugh, 420 U.S. 103, 110-11, n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)); Comer v. Cisneros, 37 F.3d at 798 (holding that “class certification will preserve an otherwise moot claim”). The courts have recognized the “special problems associated with class action mootness,” Comer v. Cisneros, 37 F.3d at 798-99, and held that “ ‘[s]pecial mootness rules apply in the class action context, where the named plaintiff purports to represent an interest that extends beyond his own.’ ” Weiss v. Regal Collections, 385 F.3d at 342 (quoting Lusardi v. Xerox Corp., 975 F.2d at 974). One instance in which the Supreme Court has suggested that courts take a “flexible” approach to questions of mootness in the context of a class action is where there are claims that are “so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 399-400, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Such “inherently transitory” claims will not be held moot. See id. at 400, 100 S.Ct. 1202; see also County of Riverside v. McLaughlin, 500 U.S. a