Kentucky Employment Law Blog

Attorney's Fees & the FLSA: the Sixth Circuit Firmly Rejects Limiting Attorney's Fees to a Percentage of the Recovery

Attorney's fees are recoverable in suits for unpaid overtime under the Fair Labor Standards Act (FLSA), and "a district court abuses its discretion if it limits the fees awardable under hte FLSA to a percentage of the plaintiff's recovery" the Sixth Circuit has held in Rembert v. A Plus Home Health Care Agency. 

The case is a pretty straightforward overtime case, remarkable mainly because (a) the plaintiffs got some good help from the Department of Labor; and, (b) defense counsel's general recalcitrance and failure to "act in accordance with his representations to the court or his obligations under the Rules." Eventually, the plaintiffs' counsel submitted a fee petition requesting an award for 119.9 hours, totaling $38,190 plus $575 in costs. The district court, after sitting on the petition for six months, "reduced counsel's total compensable hours from  a total of 119.9 to 46.2 -- a 61% reduction in compensable hours, and almost twice the reduction that defense counsel had sought." To add insult to injury, the district court, Hon. James E. Graham of the Southern District of Ohio, "cut the fee award an additional $1,660 on the ground that judges in the Southern District of Ohio 'typically approved' fee awards of no more than 35% of the 'total settlement amount' (meaning the amount of the judgment plus the amount of fees and costs awarded)," which left a total of $13,790. Plaintiffs appealed.

After reciting the lodestar calculation method, the Sixth Circuit turned to the district court's capping of the awardable fees at 35% of the total settlement amount. Capping the fees at a percentage of the recovery is an abuse of discretion, as "neither the text nor the purpose of the FLSA supports imposing a proportionality limit on recoverable attorney's fees." 

The Sixth Circuit also faulted the district court for failing to explain adequately why it had cut some of the hours submitted by the plaintiffs' counsel, especially in view of the fact that many "obtained 100% recovery due to them under the Act." First, the Sixth Circuit found it improper to exclude time devoted to gathering information from clients, since "attorneys may communicate directly with their clients" and "the law refers to an attorney-client privilege, not a paralegal-client one." Second, it was error to exclude as duplicative time devoted to communications between the plaintiffs' co-counsel, since "co-counsel may consult each other to avoid duplicative work and otherwise to maximize their efficiency and effectiveness." Third, the district court did not adequately consider to 100% recovery success rate "or that the actions and omissions of defense counsel indisputably prolonged this litigation and rendered it much less efficient than it could have been." 

The Sixth Circuit then did something extraordinary. It reviewed "both the district court's docket in this case, document-by-document, and the billing records of [plaintiffs'] counsel, line-by-line" and concluded that the "district court abused its discretion when it did not grant in full the amounts requested in counsel's fee petition." The Sixth Circuit remanded the case with instructions that plaintiffs' counsel be awarded the full requested amount and noted they were "also entitled to a reasonable fee and costs for this appeal ... which for everyone's sake we hope is not the subject of another appeal." 

Judge Raymond Kethledge authored the Sixth Circuit's opinion and was joined by Judges Eugene Siler and Julia Gibbons. 

Robert L. Abell
www.RobertAbellLaw.com

Proving a Lifting Restriction is a Disability Covered by the ADA

Although the case ultimately went south for the plaintiff and the Sixth Circuit affirmed a summary judgment, the Sixth Circuit's recent decision in Thompson v. Fresh Products is instructive regarding the proof necessary to at least create a fact issue as to whether a lifting restriction is a disability covered by the Americans With Disabilities Act (ADA). 

The plaintiff advanced a number of claims including a disability discrimination claim under the ADA. The district court, Hon. Jack Zouhary of the Northern District of Ohio, ruled that she had failed to establish "that she has a disability because she relied on 'conclusory statements,' did not have any lifting restrictions while at Fresh Products, and continued to work full-time until she was laid off." 

The Sixth Circuit disagreed on this point, citing "Thompson's testimony that her arthritis causes her pain and restricts her ability to do heavy lifting, which, in turn, affects her ability to do some jobs. Although she was not doing heavy lifting at Fresh Products, her doctor gave her lifting restrictions at a previous job. The evidence is sufficient to establish a fact dispute regarding whether Thompson has an impairment that substantially limits one or more of her major life activities, and therefore whether she is disabled under the ADA."

There's two elements here: (1) testimony by the individual as to the condition's tangible limiting and painful effects; and, (2) some medical history documenting the problem. It is not required that the condition come into play in the course of the individual's job. 

Circuit Judges Danny Boggs and Ralph Guy, as would be expected, joined to affirm the summary judgment on Thompson's disability discrimination claim; Judge Helene White dissented and would have reversed on this claim.

Robert L. Abell
www.RobertAbellLaw.com