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Tenth Circuit Upholds $23M Fee Award in Au Pair Antitrust Wage Action

August 7, 2019 | Posted in : Fee Award, Fee Issues on Appeal, Practice Area: Class Action / Mass Tort / MDL

A recent Law 360 story by Khorri Atkinson, “Attys in Au Pair Antitrust Wage Dispute Get $22.9M in Fees,” reports that a recent Tenth Circuit ruling won't disturb a $65.5 million deal approved two weeks ago that resolved a class action accusing several sponsorship agencies for au pairs of colluding to suppress childcare workers' wages, including almost $23 million in fees for class counsel, a Colorado federal judge said.

U.S. District Judge Christine Arguello two weeks ago granted 35% of the total settlement for attorney fees, the amount counsel for the 11 class representatives sought in May.  The approval ended the case claiming that a group of agencies that sponsor au pairs to come to the U.S. conspired to set low wages to $4.35 per hour for a 45-hour week.

The attorneys are from Boies Schiller Flexner LLP and Alexander Hood of Towards Justice.  One agency had appealed to the Tenth Circuit seeking to force the au pairs to arbitrate their dispute, and the appeals court agreed last October, but by that time the settlement talks had made the order unnecessary, the Tenth Circuit said.

The suit was filed in 2014 by a group of au pairs who received visas under the J-1 cultural exchange program, which provides childcare for host families while attending school. The suit said that more than a dozen agencies violated federal antitrust laws, and that the $4.35 wage was the bare minimum allowed under the Fair Labor Standards Act.

In 2017, Judge Arguello certified 11 classes and subclasses as collective actions under the FLSA, with the different classes corresponding to different agencies.  Early last year, she certified another 18 classes and subclasses for class action claims under RICO, the Sherman Act and several state laws.

Under the settlement the judge greenlighted last month, the agencies must put statements on their websites and send communications to each host family and au pair stating that individuals can negotiate for a higher wage than the required minimum.  Also as part of the deal, the agencies would not acknowledge any wrongdoing.