11th Circuit Denies En Banc Rehearing in Controversial FLSA Decision

Wow, the 11th upheld a panel decision denying fees to a prevailing party in an FLSA case because the defendant was a law firm and plaintiff’s counsel should have “picked up the phone” first before filing a suit against local lawyers.Question – I’m all in favor of collegiality, but other than in your dreams, how often have you resolved a case with a pre-suit phone call?

(“Sure, I’ll get Exxon on the line and we’ll cut you that check rightaway!”)

Judge Edmondson concurs in the denial, and writes at length about how useless to our country — yes, our country — dissents from en banc denials are. He then goes on to justify the panel decision in the exact manner he decried when done as a dissent.

Judge Barkett writes a blistering dissent, noting that the district judge’s personal view of local practice shouldn’t really trump a federal statute.Judge Wilson’s dissent focuses on courts giving lawyers special exceptions that are contrary to governing statutes, and the attendant precedential effect:

Although well intentioned, I doubt that the federal courts have the inherent authority to ignore and override a statutory mandate in the interest of promoting a professional courtesy. I also do not believe that Congress intended to single out lawyers for exclusive treatment under the FLSA. Since it is now within the inherent authority and discretion of the district courts in our Circuit to hold that no attorney’s fee is a reasonable fee when no pre-suit notice is extended to defendants who are lawyers, I would consider this case en banc before permitting this new Circuit precedent to stand.


Lawyers who do (or did) this kind of work — what say you?