Docket Number: 
Nos. 15-7003 and 15-7008
United States Court of Appeals for the District of Columbia Circuit
MWELA Amicus by Richard Talbot Seymour
Filing Date: 
October 27, 2015

The award of reasonably compensatory attorneys’ fees are essential to the ability of ordinary people to obtain competent counsel who will be able to overcome the hurdles and obstacles set up by employers who have misclassified employees and failed to pay them the proper amounts, and are equally essential to enforcing the other laws in which Congress or the Maryland General Assembly have provided fee-shifting provisions.

The legislative purpose of these provisions is to ensure access to the courts for persons harmed by violations of the statutes with these provisions. This purpose is particularly strong with the Fair Labor Standards Act, 29 U.S.C. § 216(b).

The purpose of these statutes will be frustrated unless fee awards are reasonably compensatory. Rules of decision that merely focus on the proportionality between the clients’ recovery and the fee claim violate the legislative purpose because they ignore the steps reasonably necessary to achieve that result.

In particular, it is critical that a fee-awarding court examine the aggressiveness of the defense that the plaintiff had to overcome. Defendants that leave no stone unturned, no obstacle unerected, and no hurdle ignored, act within their rights but cannot then complain that it cost much additional time and expense to overcome their efforts.

Similarly, rules of decision that pluck from the air a factor asserted without record support to have prolonged the litigation, such as the plaintiffs’ failure to provide a precise estimate of their losses until late in the litigation, is inherently speculative and flawed as a rule of decision. The lower court’s speculative assumption based on its experience in mediating cases runs counter to the experience of the attorneys pursuing such cases, which is that defendants refusing to make offers or making minimal offers, are the primary obstacles to settlement, and that the plaintiff’s inability to come up with a precise figure has no effect on the ability to settle a case where the low range of settlement values is clear. The lower court’s denial of a reasonably compensatory fee on that basis will drive competent counsel away from the representation of the low-wage workers with whom the Federal and State legislatures were primarily concerned, rather than attracting them as the fee-shifting provisions require.

In particular, it violates the purpose of fee-shifting provisions to deny a reasonably compensatory fee to plaintiffs because a case has not settled, without examining the evidence as to the defendants’ settlement offers, if any.

Is amicus brief

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