Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

The Eleventh Circuit Court of Appeals has affirmed a district court's entry of sanctions against the Shavitz Law Group, one of the leading plaintiff-side FLSA firms in Florida.  I reported on the district court decision in February.  The case is Hamm v. TBC Corp. and Tire Kingdom, Inc. (Case No. 09-11221, August 25, 2009) (unpublished). 

Shavitz apparently did not dispute that his assistant solicited two of the opt-in plaintiffs to join the case.  Shavitz argued that the sanctions were excessive because the solicitation was conducted by a non-attorney and there was no evidence of attorney knowledge or ratification of the solicitation. The Eleventh Circuit found these facts "irrelevant" and ruled that the sanctions imposed by Judge Ryskamp were appropriate.

But the decision is not as bad for Shavitz's firm as he might have thought.  The court notes that Shavitz interpreted the district court’s sanctions order as preventing Shavitz from representing any plaintiff in any case against any defendant, unless the plaintiff is one of the six named plaintiffs in the instant case or was first a co-worker of one of the named plaintiffs.  That seems like a strained interpretation of Judge Ryskamp's order, and I have to wonder whether Shavitz was being disingenuous. Did Shavitz make a straw man argument in order to make Judge Ryskamp's order seem more draconian than it really was, so that the order would be reversed? Regardless, the Eleventh Circuit interpreted the order as only limiting Shavitz from representing opt-in plaintiffs in this particular case.  "These were reasonable and limited sanctions that balanced the danger that current and future opt-in clients were impermissibly solicited against [Shavitz's] interest in representing lawfully-obtained clients," the court concluded.

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The Shavitz Law Group and Morgan & Morgan, two of the leading wage-hour firms in Florida, stand accused of soliciting clients in violation of state ethics rules for a case pending in the United States District Court for the Northern District of Texas.  The defendant in the case, Centex Homes, filed a Motion for Sanctions against the two firms on Friday.  

Centex's motion follows on the heels of a story I reported last month, Judge Ryskamp's order in the Hamm case granting sanctions against the Shavitz Law Group for soliciting clients by telephone in violation of Florida Bar Rules.  Centex alleges that the firms engaged in similar conduct in its case in violation of the Texas Disciplinary Rules of Professional Conduct. Centex cites Judge Ryskamp's decision in Hamm in support of its motion. Centex also alleges that the Shavitz firm failed to disclose the sanctions order in the Hamm case as required by the local rules of court.

Stay tuned for further developments.

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The Shavitz Law Group, one of the leading plaintiff-side FLSA firms in Florida, was sanctioned recently by U.S. District Judge Kenneth L. Ryskamp for soliciting plaintiffs in violation of Florida Bar rules.  The case is Hamm v. TBC Corp. and Tire Kingdom, Inc., Case No. 07-80829-CIV-RYSKAMP/VITUNAC.  The details of the case are laid out in a Report and Recommendation issued by Magistrate Judge Ann E. Vitunac. 

In his Order Adopting the Report and Recommendation, Judge Ryskamp made some telling remarks about the the nature of FLSA litigation in the Southern District of Florida:

This Court would also note that, according to the Administrative Office of the United
States Courts, for the past five years the Southern District of Florida has averaged 28.7% of all FLSA cases filed in the United States. This would cause one to wonder if the employers in the Southern District are willfully ignoring the FLSA. The more logical conclusion is that FLSA cases are heavily weighted in favor of the plaintiff. Most cases are filed against small businesses which quickly realize that it is cheaper to pay a small claim and the plaintiff’s attorney’s fee than it is to defend the claims. Very few FLSA cases go to trial. It is clear that the volume of cases in the Southern District is attorney-driven.

Attorney-driven or not, the flood in FLSA litigation continues.  I suspect that the Hamm decision will do little to stem the tide.

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A federal magistrate judge has recommended that three Plaintiffs' lawyers who specialize in handling Fair Labor Standards Act cases in the Middle District of Florida be reprimanded as a sanction for their routine failure to comply with the Court's pretrial orders. 

The magistrate's report and recommendation illustrates the growing pains these Plaintiffs' firms have experienced due to the high volume of FLSA cases they are handling.  

According to the R&R, two of the  lawyers, K.E. Pantas and Charles Scalise, responded to the show cause order in this case (which I reported  on in June) by saying that they were scaling back their practices and would be handling a smaller volume of FLSA cases. 

But it remains to be seen whether the overall volume of FLSA cases in the Middle District of Florida will decrease, or whether other firms will pick up the slack.  Since Plaintiffs' lawyers have figured out that there's money to be made in FLSA cases, I'd bet on the latter.  I'd also bet that with a smaller volume of cases, Plaintiffs' lawyers will litigate cases more aggressively, and that defense lawyers will be seeing more motions to certify collective actions.  

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Here's an interesting show cause order from the Middle District of Florida addressing the "routine failure" of the leading Plaintiffs' wage-hour firms in Central Florida "to abide by the Court’s standing orders." 

Anyone who practices employment law in Florida knows that these firms handle an extraordinary number of wage-hour cases.  So it's no surprise they don't find the time to comply with the court's standing orders.  Stay tuned to see what sanctions, if any, the court takes against these firms. 

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