When I defend a FLSA case, the plaintiff’s attorney always seems to want to hire an expert on “damages” or actually does hire such an expert. I usually am dumbfounded by that because I ask myself (and plaintiff’s counsel) why is there a need for an expert when “it’s just math” and no arcane or esoteric issues for such calculations ever exist? I also see it as a ploy for the adversary to add more to his fee petition. Well, I seem to have read the tea leaves correctly on this as the Second Circuit has just ruled that a winning plaintiff cannot be reimbursed for expert fees under the Fair Labor Standards Act. The case is entitled Gortat v. Capala Brothers Inc. et al., in the Court of Appeals for the Second Circuit.
The panel reversed the lower court’s decision to award the plaintiff more than $10,000 in costs for an accounting expert who testified for the workers. The Court made plain that a district court cannot award reimbursement for expert fees unless the statute under scrutiny explicitly references such awards.
The Court stated that “unlike other statutory provisions explicitly authorizing such reimbursement, 29 U.S.C. §216(b) of the FLSA does not expressly address awards reimbursing prevailing plaintiffs for expert fees.” The Court affirmed all other aspects of the lower court’s decision to award the plaintiffs $514,000 in attorneys’ fees and nearly $68,300 in costs.
The Court also looked to Supreme Court precedent for the basis of its decision and stated that the decision was consistent with those emanating from four other federal circuit courts. This was in direct contradiction to the district court which opined that “courts have awarded expert fees to prevailing parties in cases brought pursuant to the FLSA.”
Maybe this will start a trend. Hopefully. Maybe the FLSA plaintiffs’ bar will start to understand that hiring an expert is superfluous and, if they understand that they will have to bear the costs for the expert themselves, maybe they will stop using them. Or, maybe they will stop using the “threat” of utilizing an expert as leverage to extract a settlement. I have seen that tactic tried numerous times.
After all, why is an expert needed? It’s just math…