Thursday, April 15, 2010

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?


Anonymous said...

Bad decision, should be reversed.

Jim Croce said...

Operator, well could you help me place this call?
See, the number on the local bar journal is old and faded.
There working in L. A. with my best old ex law partner Ray,
A lawyer they said they knew well and sometimes hated.

Anonymous said...


Anonymous said...



South Florida Lawyers said...

I did what I could. See latest post.

Anonymous said...

If the panel decision stands for what Wilson says it does (and it does, indeed, appear to) then it is a bad decision. But the only reason the full court should have heard it en banc is because it may create a circuit split. The court should never hear a case en banc simply because other members think the original decision was incorrect. That's not what en-banc review is for.