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N.D.Cal.: Former DOL Wage and Hour Investigator Struck As Expert Because Cannot Testify As A “Legal Expert”
Valladon v. City of Oakland
Defendant sought to use a former DOL Wage and Hour Investigator as their expert to defend this FLSA claim. While working at the Department of Labor (“DOL”), Ms. Kramer gained expertise on Department of Labor regulations and federal case law interpreting FLSA.
She applied this expertise in her report and arrives at the following conclusion:
‘[I]t is my opinion that the City’s compensation practices with regard to donning and doffing of uniforms and equipment and the maintenance of uniforms and equipment, as well as its practices with regard to the use of compensatory time of, fully comply with the FLSA.’ Ms. Kramer also opined that if the Court nonetheless found that the Defendant’s practices violate FLSA, (1) those violations are not willful, so a two-year statute of limitations applies and (2) that the City is not liable for liquidated damages because it acted in good faith with a reasonable belief that its practices were lawful. Ms. Kramer reached these conclusions by analyzing DOL regulations and federal cases interpreting FLSA and determining whether the policies at issue here violate those laws. That is, she applied the facts of this case to the law. For example, after interpreting the text of FLSA, the DOL’s regulation concerning the “continuous workday rule,” two Supreme Court cases, a DOL advisory opinion, and the DOL’s “Wage and Hour Division’s Field Operations Handbook,” Ms. Kramer 2 concluded, ‘Thus, applying DOL’s interpretation of the FLSA and the agency’s own regulations, the time [p]laintiffs spent donning and doffing uniforms and equipment is not compensable because the City permits donning and doffing at home.’
Ms. Kramer used a similar method to reach her opinions about the statute of limitations and the reasonableness of the Defendant’s policies. She even opines that a particular district court reached the “incorrect” legal conclusion about whether a city must compensate its employees for the time spent donning and doffing uniforms.
Finding that, “Ms. Kramer’s “expert report” reads like a legal brief,” the Court found that because “[r]esolving doubtful questions of law is the distinct and exclusive province of the trial judge,” Nationwide, 523 F.3d at 1058 (citation omitted), Ms. Kramer’s report must be stricken. The Court reasoned that “her area of expertise is the law. She therefore purports not to “assist the trier of fact to understand the evidence or to determine a fact in issue,” but to help the jury understand the law itself. This is not permissible.
The Court further clarified its holding saying, “[h]ad Ms. Kramer offered opinions moored to the facts of this case, such opinions would not have been inadmissible merely because they included reference to legal terms or regulations. See, e.g., Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir.2004) (citation omitted) (“[A] witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms.”). However, Ms. Kramer’s report as drafted, and hence her anticipated testimony, was effectively a surrogate for legal instructions to the jury. This is not allowable.
D.Kan.: Plaintiff May Serve Amended Complaint Asserting Successor Liability In FLSA Case
Chao v. Concrete Management Resources, L.L.C.
Plaintiff filed this wage and hour suit against defendants alleging violations of the overtime and recordkeeping provisions of the Fair Labor Standards Act (FLSA). In her complaint, plaintiff alleged that defendant Concrete Management Resources, L.L.C. (CMR) was formerly known as Concrete Masonry & Restoration, L.L.C. Defendant CMR moved to dismiss the complaint on the grounds that it was not a proper party to the action. Specifically, CMR contended that it has never operated as Concrete Masonry & Restoration, L.L.C. and that CMR is a separate legal entity from Concrete Masonry & Restoration, L.L.C. CMR contended that any FLSA violations were committed by Concrete Masonry & Restoration., L.L.C. and that CMR has no relationship with that entity.
The Court entered an Order permitting Plaintiff leave to file an Amended Complaint, asserting successor liability, stating, “[t]he court believes that the Tenth Circuit, if faced with the issue, would conclude that successor liability exists under the FLSA. Indeed, the Circuit had little difficulty extending the doctrine to the Title VII context-long before the Ninth Circuit’s decision in Steinbach. Trujillo, 694 F.2d at 224-25. In doing so, the Circuit emphasized that the “same policy considerations” supporting the application of the doctrine in the labor law context mandated the application of the doctrine to remedy violations of Title VII. Id. at 224. The Circuit also cautioned, however, that “successor liability is not automatic but should be determined on a case by case basis” through application of the ” MacMillan factors,” including whether the successor company had notice of the charge; the ability of the predecessor to provide relief; and whether there has been a substantial continuity in operations, work force, location, management, working conditions and methods of production. Id. at 225 & n. 3. The court, then, rejects defendant’s suggestion that plaintiff’s amendment is futile because the Tenth Circuit has not recognized the theory of successor liability under the FLSA.”
In so doing, the Court joined other Courts, namely the Ninth Circuit in expressly recognizing the existence of successor liability in an FLSA context.
11th Cir.: Plaintiff Not Entitled To Prevailing Attorneys’ Fees, Although She Prevailed, Because Plaintiff’s Attorney Owed A Greater Duty To The Defendant, Who Violated The FLSA, Than His Own Client
Sahyers v. Prugh, Holliday & Karatinos, P.L.
In a decision, which is widely being questioned in legal and scholarly circles, the 11th Circuit affirmed the lower Court’s decision that Plaintiff’s attorney was not entitled to any attorney’s fee, despite the fact that Plaintiff was the prevailing party in this FLSA case.
The Court stated: “The district court’s inherent powers support its decision here. Defendants are lawyers and their law firm. And the lawyer for Plaintiff made absolutely no effort-no phone call; no email; no letter-to inform them of Plaintiff’s impending claim much less to resolve this dispute before filing suit. Plaintiff’s lawyer slavishly followed his client’s instructions and-without a word to Defendants in advance-just sued his fellow lawyers. As the district court saw it, this conscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things) the judiciary to waste significant time and resources on unnecessary litigation and stood in stark contrast to the behavior expected of an officer of the court. The district court refused to reward-and thereby to encourage-uncivil conduct by awarding Plaintiff attorney’s fees or costs. Given the district court’s power of oversight for the bar, we cannot say that this decision was outside of the bounds of the district court’s discretion.”
Perhaps recognizing that its decision held starkly against black letter law and over 70 years of nationwide jurisprudence, the Court limited its decision by stating, “[w]e strongly caution against inferring too much from our decision today. These kinds of decisions are fact-intensive. We put aside cases in which lawyers are not parties. We do not say that pre-suit notice is usually required or even often required under the FLSA to receive an award of attorney’s fees or costs. Nor do we now recommend that courts use their inherent powers to deny prevailing parties attorney’s fees or costs. We declare no judicial duty. We create no presumptions. We conclude only that the district court did not abuse its discretion in declining to award some attorney’s fees and costs based on the facts of this case.”
While it remains to be seen what, if any, precedential value this decision will have, given the language clearly limiting the scope of the decision, it is clear that the 11th Circuit thinks that attorney Defendants should be treated differently from other Defendants in FLSA cases. In fact, the Court went to great lengths to make it clear that it believes an attorney owes a greater duty to a fellow member of the bar, than to his or her own client. Interestingly, while recognizing that the FLSA does not require a pre-suit notice letter, apparently the Court has created such a requirement if the Defendant is an attorney.
5th Cir.: Relation Back Principle Applies to Ensure That Defendants Cannot Unilaterally “Pick Off” Collective Action Representatives and Thwart Availability of Collective Actions Under FLSA by Paying Employee’s Claim in Full
Sandoz v. Cingular Wireless LLC
Although, in theory, FLSA claim could become moot when purported representative of collective action receives offer that would satisfy his or her individual claim and no other plaintiffs have opted in, when FLSA plaintiff files timely motion for certification of collective action, that motion relates back to date plaintiff filed initial complaint; relation back is warranted only when plaintiff files for certification without undue delay.
S.D.Fla.: “Offensive” Collateral Estoppel Appropriate Where Defendant’s Exemption Argument Previously Rejected By 11th Circuit
Schulman v. Southern Shuttle Services Inc.
Defendant, a company which provides bus shuttle transportation to and from airports for a fee filed a motion for summary judgment, asserting that Plaintiffs were exempt under the so-called taxicab exemption to the FLSA of § 213(b)(17). Plaintiffs, drivers for Defendant, opposed the motion, primarily by pointing to a recent decision by the 11th Circuit, which held such drivers not to be taxi cab exempt.
In denying Defendant summary judgment the Court stated:
“[We] find that offensive collateral estoppel is appropriate. Defendant, Southern Shuttle, has previously litigated unsuccessfully the issue of whether it qualifies for the taxicab exemption. See Abel v. Southern Shuttle Services, Inc., 2008 WL 5047626 (11th Cir. Nov.28, 2008. The Eleventh Circuit held that, while Defendant’s airport shuttle vans share some characteristics with taxicabs, they are not “taxicabs” under the narrow interpretation required of an FLSA exemption. Id. Since Defendant received a “full and fair” opportunity to litigate its taxicab exemption claim in the Abel action, the law of collateral estoppel leads inescapably to the conclusion that Defendant is collaterally estopped from relitib Exemption, Collateral Estoppel, Summary Judgmentgating the question of whether it qualifies for the taxicab exemption under the FLSA. See Blonder-Tongue Laboratories, 402 U.S. at 328. The Court is unconvinced that the factual distinctions alleged between this case and Abel v. Southern Shuttle Services, Inc. (07-80584-KLR) are sufficient to prevent the exercise of collateral estoppel here.”
E.D.La.: Defendant Permitted To Move For Summary Judgment Against One Plaintiff Rather Than Entire Class
Lindsley v. Bellsouth Telecommunications, Inc.
Plaintiff sued Defendants, claiming that he and the putative class were misclassified as independent contractors, when they were, in fact employees under the FLSA. The Court had previously granted Plaintiff’s Motion to Permit Notice pursuant to 216(b). Following the deposition of the named Plaintiff, but before any other members of the putative class had been deposed, the Defendants moved for Summary Judgment, as to the named Plaintiff. Denying the Plaintiff’s Motion to Strike Defendant’s Motion for Summary Judgment as premature, the Court rejected Plaintiff’s argument that Defendants had to move for summary judgment on a classwide basis, until such time as the class had been decertified.
The Court reasoned, “[b]ecause of the allegation that they were employees, the completion of discovery as to Lindsley, and the filing of the motion for summary judgment, the court finds that it is appropriate to choose Lindsley as a test plaintiff to resolve the issue of employee versus independent-contractor status. Resolution of the issue regarding Lindsley, which may be common to the other plaintiffs, does not hinder the purpose of the collective action to aid the “unprotected” in an efficient and effective manner.”
S.D.Ala.: Court Strikes 245 Declarations From Potential Class Members Obtained By Defendant Pre-Certification By Ruse
Longcrier v. HL-A Co., Inc.
Knowing that this lawsuit was pending and that it was styled as a 216(b) opt-in proceeding, Defendant called each of its hourly workers into a one-on-one meeting during work hours with its attorney(s), creating an inherently coercive and intimidating environment for interviews and execution of paperwork concerning pay practices, under the guise of conducting a “survey.” Defendant’s attorneys asked general questions about pay practices and placed a largely form document in front of each employee to be signed. “While that inherently coercive setting is not itself grounds for relief, Defendant’s misleading statements to these potential plaintiffs about the reasons for the interview and declaration process, and their suppression of the truth, were obviously designed to lull prospective plaintiffs into a false sense of security and to effectuate their complete cooperation with minimal resistance.” Such manipulation of unrepresented parties to secure Declarations that HL-A now uses for the purpose of preventing the very people it misled from being able to litigate their FLSA rights herein is improper.
Therefore, the Court determined that the appropriate remedy was to strike the 245 declarations improperly obtained by Defendant, which would have made it difficult for the potential class members to pursue claims in the instant case.
E.D.N.Y.: Plaintiff’s Prevailing Fees Not Subject to Reduction Because of Low Opt-in Rate
Estrella v. P.R. Painting Corp.
The E.D.N.Y. joined Courts from around the Country, (see, e.g. Prater v. Commerce Equities Management Co., Inc., 2008 WL 5140045 (S.D.Tex. 2008)), and found that where, as here, the Plaintiffs recovered their full unpaid overtime compensation, the prevailing Plaintiff’s attorney’s fees were not subject to reduction, based on a low opt-in rate to Plaintiff’s Court-approved Notice. Additionally, the Court reiterated that an attorney’s travel time is compensible at 50% their normal rate.
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