A recent Wage & Hour article by Mark Tabakman, “Plaintiff Attorney Fees in FLSA Cases: The Frustrating, Driving Force in These Cases,” reports on plaintiffs’ attorney fee requests in Fair Labor Standards Act (FLSA) litigation from a defense counsel perspective.  This article was posted with permission.  The article reads:

I read a very interesting article in the Epstein Becker Wage & Hour Defense Blog, whose sentiments I wholeheartedly agree with.  It concerns the issue of attorney fees for plaintiff lawyers in FLSA/wage cases.  The blog post notes that often, these lawyers get big dollar fee awards, while the allegedly victimized people they represent get “pennies.”

The posting notes, and I agree, that there are many, many plaintiff wage hour class (or single) action lawyers who believe in their clients and feel that their clients were “wronged” by not receiving proper payment (e.g. overtime).  With that said, there are also many who are more dedicated to their fees and maximizing those fees than they are in vindicating their clients’ position.

The posting notes that some plaintiff lawyers will announce that they “need” to get a certain sum as their fees for the case.  Then, the defendant’s lawyer (and a mediator, if it goes that far) know that they have to work back from that demanded fee award to get to a point where the case settles and the plaintiff(s) get something, whatever that “something” is.  That is, as the post correctly notes, the “tail wagging the dog.”

The posting notes, and again I agree, that the issue defaults to whether judges will try to do something about this disturbing trend, to stem this tide.  One example makes the point.  A Judge was presiding over a matter where the parties settled a wage-hour case, with small recoveries by the plaintiffs and where the plaintiff lawyers sought fees far greater than the recoveries that their clients would themselves receive.

The Judge could have easily approved the settlement, just to get it off the docket, but this Judge refused to take the easy way out.  She observed that these cases often are not about the employees or “justice” but rather the plaintiff lawyer’s fees.  She would not approve the settlement and hoped that other Judges would also not put up with these tactics.

 The Takeaway

I am so glad to hear a Judge express this sense of frustration.  I encounter it all the time and feel it all the time.  She is right.  Often times, I find myself settling so-called small cases because the portent of a large attorney fee demand makes the risk of defending too great, even if I know the client did nothing wrong.  That is wrong and very frustrating to me.

I hope the next Judge I get in a wage hour case is just like this one…

Mark E. Tabakman is a partner in the Labor & Employment Department of Fox Rothschild LLP who focuses his practice on advising and defending employers across the country in wage-hour matters. Based in the firm’s Princeton, NJ office.