Dionne II Clarifies Earlier Eleventh Circuit Ruling

Charles R. Bridgers : February 21, 2012 9:32 pm 

In the summer of 2011, the Eleventh Circuit Court of Appeals decided Dionne v. Floormasters Enterprises, Inc., 647 F.3d 1109 (11th Cir. 2011) (Dionne I) Dionne I was read by some defense counsel (and judges) to allow a Defendant to moot an FLSA case at any time by paying claimed wages and liquidated damages but without paying attorney’s fees or costs.  We are aware of one District Court judge suggesting at the conclusion of a bench trial (during which the Defendant admitting keeping two separate sets of records to avoid overtime) that the Defendant could moot the case by paying only the claimed wages and liquidated damages. On January 13, 2012, the Eleventh Circuit vacated Dionne I and substituted Dionne II (No. 09-1540). Dionne II did not change the result in the case but issued a substantial clarification in a new footnote (fn5):

“Our decision in this matter addresses a very narrow question: whether an employee who conceded that his claim should be dismissed before trial as moot, when the full amount of back pay was tendered, was a prevailing party entitled to statutory attorney’s fees under § 216(b). It 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.”

A case may still be mooted “where the employee concedes that the claim for overtime should be dismissed as moot” but this is no longer–even arguably—the unilateral decision of the Defendant.