I don’t do employment cases, but if I did I would be mystified at this 11th Circuit opinion constructing the statute dealing with fees to basically eliminate the role of the attorney in obtaining full relief for her client.

In a nutshell, the plaintiff — through counsel — filed an FLSA complaint for unpaid overtime wages. The defendant ultimately did a full tender of the amount sought (excluding fees and costs) and then moved to dismiss on mootness grounds. Plaintiff acknowledged the tender was correct as to the amount of overtime owed, but asked the court to retain jurisdiction to consider fees and costs.  The court did as requested but otherwise dismissed the case. Regarding fees and costs, however, the district court held that plaintiff’s counsel was not entitled to fees as a “prevailing party” because there was no “judgment” awarded to plaintiff as required by the statute. On appeal, the 11th affirmed:

Dionne has failed to cite to any case that supports his contention that the entry of a defendant’s motion to dismiss a plaintiff’s claims as moot because the trial court no longer has subject matter jurisdiction constituted a judgment in favor of the plaintiff.

The 11th also rejected the notion that plaintiff’s counsel — through preparing the complaint and paying the filing fee and serving the defendant — was the “catalyst” in plaintiff’s recovery:

In the present case, the District Court did not approve any agreement or retain jurisdiction to enforce any settlement or order; the parties did not even reach a formal settlement agreement to present to the court.

Does this make sense? The 11th’s reasoning is contrary to my understanding of Florida’s interpretation of similar statutes, and also runs counter to the public policy expressed in FLSA. So now the defendant can bitterly contest the case for years and, on the eve of trial, tender the amount of overtime sought and walk away? Plaintiff’s counsel doesn’t even get its filing fee under this logic.

What lawyer would bring such a case when the rug can be pulled out at the last minute?