On Rehearing, Eleventh Circuit Still Denies Attorney’s Fees after Defendant Tenders Full Amount Claimed in FLSA Case

Back in July (here) I reported an Eleventh Circuit opinion refusing a plaintiff in an FLSA action attorneys’ fees when the defendant (after the filing of the FLSA complaint) simply tendered the full amount of unpaid overtime claimed (plus statutory liquidated damages) and moved to dismiss.  Upon the plaintiff’s petition for rehearing, the Eleventh Circuit withdrew its former opinion, but replaced it with one that is functionally identical.  Dionne v. Floormasters Enterprises, Inc., No. 09–15405 (11th Cir. Jan. 13, 2012).

The Eleventh Circuit has again upheld the district court’s denial of fees because “[t]he FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney's fees and costs.”

Despite its heavy reliance on the argument that there was no “judgment awarded to the plaintiff,” as seemingly required by the FLSA for a fees award, the court then added in an odd footnote:  “[Our ruling] should not be construed as authorizing the denial of attorney's fees, requested by an employee, solely because an employer tendered the full amount of back pay owing to an employee, prior to the time a jury has returned its verdict, or the trial court has entered judgment on the merits of the claim.”

PM