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The “Reasonable Hourly Rate” Debate

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The federal act states that a prevailing plaintiff is entitled to an award of reasonable attorney’s fees, but it does not allow for prevailing party fees for the defendant.

That’s what Florida’s Second District Court of Appeal said, last year, illustrating one way the deck is stacked in favor of plaintiffs in lawsuits alleging a violation of the federal minimum-wage and overtime laws.1Of course, there are strong policy reasons to construe the law this way.  Benshoff v. City of Virginia Beach, (4th Cir. 1999) (in keeping with the remedial purposes of the Fair Labor Standards Act (FLSA), courts construe FLSA in favor of workers whom it was designed to protect.) Is this asymmetry a big deal?  Oh, absolutely.  As Christopher M. Pardo wrote in a 2009 edition of the Michigan State Journal of Business and Securities Law, “the Fair Labor Standards Act has recently been rediscovered as a law with ‘teeth,’ making it increasingly attractive to both aggrieved employees and plaintiffs’ lawyers alike.”  What constitutes a “reasonable attorney’s fee”?

A reasonable attorney’s fee consists of a reasonable hourly rate times a reasonable number of hours spent by plaintiff’s counsel in the case.  Earlier this month, the Southern District of Florida analyzed what constitutes a “reasonable hourly rate” for a plaintiff’s lawyer prosecuting an FLSA case in South Florida in 2014.  In Picado v. Lafise Corp.,  plaintiff accepted defendant’s $6,595.34 “offer of judgment” on the FLSA portion of plaintiff’s claim.  In the offer, defendant agreed to pay whatever the Court deemed to be reasonable attorney’s fees and costs.  The Court entered the agreed-upon judgment, and reserved jurisdiction to award fees to plaintiff.

Plaintiff asked for an award of $7,565.00 in fees and costs.  Much of the requested award was based on the work of Plaintiff’s lead counsel.  That lawyer had litigated many FLSA claims over the past seven years, and billed at an hourly rate of $350.00.  Defendant argued that rate was excessive, and pointed to another recent case awarding fees to a different attorney based on an hourly rate of $295.00.  Despite some reservations, the Court ruled in Plaintiff’s favor.

The Undersigned rejects Lafise’s contention that the hourly rates sought are overly excessive.  To be sure, the rates sought are at the high end of reasonable.  They are, however, not significantly out of line with rates recently approved in other FLSA cases in this district.  See, e.g., De Armas v. Miabraz, LLC, No. 12 — 20063 — CIV, 2013 WL 4455699, at *4 (S.D. Fla. Aug. 16, 2013) (awarding $350.00/hour to counsel for trial time); Reppert v. Mint Leaf, Inc., No. 11 — 21551 — CIV, ECF No. 114 (S.D. Fla. Jan. 31, 2013) (awarding $375.00/hour to lead attorney and $325.00/hour to senior associate in FLSA case); Medrano v. Mi Colombia Bakery, Inc., No. 11 — 23916 — CIV, 2013 WL 1748403, at *2 (S.D. Fla. Jan. 10, 2013) (awarding $375.00/hour).

(italics in original).  So: $350.00 an hour?  Well, similar results were obtained, in August, in two other federal court cases arising out of Tampa.  In McMillan v. Masrtech Group, Inc., the Middle District of Florida — again, with some reservations — found a $350.00 hourly rate reasonable for prevailing Plaintiff’s counsel in an FLSA case.  And, in Martinez v. Hernando County Sheriff’s Office, the Eleventh Circuit affirmed the award of a $300.00 hourly rate to a prevailing Plaintiff’s counsel in an FLSA case.2There’s a lot of good news for employers in the Martinez decision.  The plaintiff won an overtime compensation award of only $1,075.44.  His counsel requested $79,850.63 in fees and costs, with the fee award based on an hourly rate of $500.00.  The Court lowered the hourly rate to $300.00; disallowed 38 hours of travel time for plaintiff’s counsel traveling to the Tampa Courthouse from his office in Weston, Florida; and made a downward adjustment of the fees, in light of plaintiff’s “limited success” on the claim.  Of course, YMMV, as the kids say; each case is different, and courts routinely make adjustments to requested fee awards.  In a forthcoming post, we’ll examine arguments an employer can make against a plaintiff’s fee petition.

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