FLSA RIP?

I don't do employment cases, but if I did I would be mystified at this 11th Circuit opinion constructing the statute dealing with fees to basically eliminate the role of the attorney in obtaining full relief for her client.

In a nutshell, the plaintiff -- through counsel -- filed an FLSA complaint for unpaid overtime wages.

The defendant ultimately did a full tender of the amount sought (excluding fees and costs) and then moved to dismiss on mootness grounds.

Plaintiff acknowledged the tender was correct as to the amount of overtime owed, but asked the court to retain jurisdiction to consider fees and costs.  The court did as requested but otherwise dismissed the case.

Regarding fees and costs, however, the district court held that plaintiff's counsel was not entitled to fees as a "prevailing party" because there was no "judgment" awarded to plaintiff as required by the statute.

On appeal, the 11th affirmed:

Dionne has failed to cite to any case that supports his contention that the entry of a defendant’s motion to dismiss a plaintiff’s claims as moot because the trial court no longer has subject matter jurisdiction constituted a judgment in favor of the plaintiff.

The 11th also rejected the notion that plaintiff's counsel -- through preparing the complaint and paying the filing fee and serving the defendant -- was the "catalyst" in plaintiff's recovery:

In the present case, the District Court did not approve any agreement or retain jurisdiction to enforce any settlement or order; the parties did not even reach a formal settlement agreement to present to the court.

Does this make sense?

The 11th's reasoning is contrary to my understanding of Florida's interpretation of similar statutes, and also runs counter to the public policy expressed in FLSA.

So now the defendant can bitterly contest the case for years and, on the eve of trial, tender the amount of overtime sought and walk away?

Plaintiff's counsel doesn't even get its filing fee under this logic.

What lawyer would bring such a case when the rug can be pulled out at the last minute?

Magistrate Judge Torres Explains the Legal Caste System!

This is a great R&R from Judge Torres awarding fees pursuant to 28 U.S.C. § 1920 to H&K in defending an "objectively unreasonable" copyright suit.

There are so many interesting things in this order I don't know where to begin.

Let's start with the fact that it took 19(!) H&K lawyers in four cities (Miami, Atlanta, DC, and Boston) to handle an objectively unreasonable lawsuit.

Then there's the whole billing rate problem:

To be fair, the record shows that various Florida lawyers were indeed involved and billed extensively on the file, including highly experienced and respected lawyers like Sandy Bohrer and Chris Bellows, who are seeking even higher rates. But that then leads to the question whether their billable rates are necessary to attract competent counsel in this community to represent Coca-Cola. Clearly they are not.

Judge Torres continues by way of analogy:

In other words, one can drive from point A to point B in a Ferrari, a BMW, or a Ford Fusion. Which car one chooses is ordinarily a matter of personal style coupled with financial freedom. The successful personal injury or criminal defense lawyer may choose the Ferrari. The average corporate defense lawyer will wisely choose the BMW. But a successful attorney fee applicant can only choose the Ford Fusion. It is quite reliable, consistent, and effective for the task at hand, and will not break the bank. And because of that only the cost of a Ford Fusion is compensable under an attorneys’ fee statute based on the American Rule that governs federal litigation.

A few questions:

1)  Why is the successful PI and criminal defense lawyer lumped together, both driving a Ferrari?

2)  What is "wise" about the average corporate defense lawyer's choice of a BMW, and don't some (many) also drive fancy sports cars or even Ferraris?

3)  This is not good publicity for Ford Fusions.

The Judge is not done:

That is why premium-rate lawyers who work at large high-powered law firms like H&K exist. They are lawyers who graduated from the best law schools like Georgetown, at the top of their classes at schools like Columbia or the University of Miami, who clerked for distinguished federal judges, who work night and day, 365 days a year, in the interest of that corporate client that demands perfection 100 percent of the time. These lawyers are (in very rare cases) the Ferraris and (in most cases) the BMWs of their profession who would never market themselves as merely “competent” or “average” or “reasonably priced.” These lawyers market premium legal service, which carries with it premium hourly rates.

Hmm, that's an awful lot of assumptions in one paragraph.

Georgetown, heh?

Hey, I know a Magistrate Judge who graduated from there!

BTW, I'm sure Coke's shareholders are happy they hired a firm who put 19 lawyers from around the country (plus another firm out of LA) on a case that had absolutely no merit whatsoever.

Oh well, $425 an hour's not bad for the ham-and-schleppers stuck driving around the South Florida legal community in their crappy Ford Fusions.

Beats the Ford Pinto, I guess.