Expert witness fees are not recoverable under the FLSA. So held the Second Circuit in a decision that highlights a strategy we have previously discussed for employers to fend off class/collective actions.

In Gortat v. Capala Brothers, Inc., the plaintiffs alleged that they were denied wages, including overtime compensation, throughout their employment. After six years of litigation, the case went to trial and the plaintiffs prevailed, winning unpaid wages as well as $514,284.00 in attorney’s fees and $68,294.50 in costs. In support of their claims, the plaintiffs retained an economic expert to aid in establishing their alleged damages.

In their appeal to the Second Circuit of the fee award, the defendants argued that the expert fees (which constituted $10,425 of the attorney’s fee award ) are not recoverable under the FLSA. The court agreed. It relied on the text of the FLSA, which states that where a defendant has violated the Act, “the court … shall, in addition to any judgment awarded to the … plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” Based on this language, the court said that the plaintiffs were not entitled to be reimbursed for the expert fees, as the FLSA does not explicitly provide for such reimbursement. The Second Circuit then vacated the award and remanded the case to the District Court to determine if the New York Labor Law authorizes the award of such fees.

In isolation, this decision is hardly a game changer. However, we have previously written about the increasing importance of a trial plan for wage and hour class/collective actions to ensure that cases can effectively be tried on a multi-plaintiff basis rather than wind up as hundreds (or potentially thousands) of mini-trials. In Tyson Foods, Inc. v. Bouaphakeo, which the Supreme Court will hear next Term, one of the issues before the Court will be whether liability and damages may be determined by statistical techniques that presume all class or collective members are similar.

Plaintiffs often resist coming up with a trial plan during discovery or briefing on certification of the class/collective action, arguing that such details can be left until the eve of trial. Now, to the extent plaintiffs retain an expert to aid in formulating a trial plan earlier in the case, Gortat makes it clear that, at least in the Second Circuit, they will have to pay for the expert out of their own pocket. Having to foot the bill for such costs, with no chance of recouping them later on, may cause plaintiffs’ counsel to rethink the scope of the class/collective action they wish to pursue, or whether to pursue one at all.