As the volume of FLSA litigation remains high, an impediment to resolving such cases (even where the underlying claimant’s wage claim already has been resolved) is the issue of the appropriate fee to be paid to counsel representing the worker pursuant to the fee shifting provision of the FLSA and/or applicable state labor law. Central to this discussion is the appropriate hourly rate for such work. Brooklyn-based Eastern District of New York Judge Brian Cogan recently issued a second opinion on this issue. Encalada v. Baybridge Enters., 2014 U.S. Dist. LEXIS 122783 (E.D.N.Y. Sept. 2, 2014).
Judge Cogan’s opinion in Encalada joins his ruling last year in Fawzy v. Gendy, 2013 U.S. Dist. LEXIS 144323 (E.D.N.Y. Oct. 6, 2013) in observing that fee awards in judicially reviewed settlements where the defendant did not dispute the appropriate fee are not instructive as to what the prevailing market rate ought to be, because under that scenario “the degree of judicial scrutiny naturally declines.” Observing the high volume of FLSA cases in the District, and a relatively flat market for legal services in the last number of years, Judge Cogan opined that this “robust ‘buyers’ market’ for plaintiffs looking for FLSA lawyers will have a depressive effect on the reasonable hourly rate.” Thus the Court awarded $350/hour, a figure he deemed at the top of the range and attributable only to the plaintiff’s counsel’s “very substantial FLSA experience,” rejecting counsel’s request for $500 to $600/hour.
FLSA compliance remains the best tool for confronting and avoiding litigation issues.