Litigators gotta litigate

2014 saw my litigation practice suffer a bit. 2012 and 2013 were banner years, but last year it seemed that nobody was angry or cheated enough to sue. Or they just weren't interested in talking to a lawyer about it. This year? Much different.


Since January I have filed 4 unpaid overtime cases in federal court, and one, a mortgage loan officer case, is teed up to go. Mortgage loan officers are NOT exempt from minimum wage or overtime coverage.


Also in the just-about-to-be-filed pipeline is a clear failure-to-notify FMLA case. It amazes me how often the employers in these cases are health care providers. There is another FMLA case right behind this one, but its major claim is failure to reinstate. Either way, back wages, liquidated damages and attorney's fees are all available.


I haven't seen this much action in years and am grateful for my tax dollars being used to support a dispute resolution system for people who have few resources and little power.


If employers make employees angry enough or treat them unfairly long enough, then those employees will act. Employment laws passed by Congresses not so deeply in corporate pockets serve these underpaid or mistreated workers well.


Don't take it anymore. Call a lawyer.


Update:


Favorably settled the mortgage loan officer overtime case and both FMLA cases this year.  Still two more in play and I am looking for more. Merry Christmas and Happy New Year to all.

Your advice is always worth something

Look, friends, colleagues and others, a licensed, practicing lawyer knows a lot of valuable information. Sure, much of what they know is freely available on the Internet, at Legalzoom, Justia or Google. But how that information affects a person's life, business or money can't usually be determined by the average person.

Legal training makes it possible for a lawyer to determine what information actually matters in a situation, and how to make that info work. That skill is worth paying for and, above all, charging for.

All the information knowable about the workings of a modern automobile is published in shop manuals. Does that mean getting a car problem diagnosed or repaired is, or should be, free? Of course not. How about a pain in the back? There are diagnostic websites, anatomy texts, all the substance of modern medicine available to anyone with an internet connection. Does that mean a medical diagnosis should be had for nothing? Again, the answer is obvious.

The same is true for legal problems. Any person who has ever had a cold can tell if someone else has one. How many people can suggest a case of adverse possession off the top of their head?  Only a lawyer would know.

Please value your education, experience and training. If attorneys keep giving away "free initial consultations" they devalue every other piece of advice they may give, as well as the advice and effort of other lawyers, everywhere.

Good legal advice is worth paying for, and price tells clients that they are getting something of value. Be valuable from the moment you start listening to a set of facts. 

Service

Tony Robbins is a globally recognized author and motivational speaker. He has risen to, and has access to, the highest echelons of society. He appears as avid a student as he is a teacher. More than that, he seems to be a decent, sincere man.


In his recent book "Money: Master the Game" he infrequently and obliquely discusses his own path to success. It is in those passages one finds little nuggets of wisdom. There is no doubt that the success Robbins has had came with some difficulty and challenges. His offhand remarks in that book  provide some useful insight on how to become more valuable.  One observation of his was particularly resonant with me as a seeker of success in life, and in the practice of law.


"How do I serve the greatest number of people?" he asked himself. That is the question that woke me in the wee hours this morning. How can I serve more people as a lawyer?


I have been actively searching for opportunities to make money in my law practice and in other areas of business.  It is a difficult challenge to look for these "opportunities." They are like the fabled jackalopes. There are no obvious markers and they are not easily seen. They take on varying colors and are as wispy as smoke---until you understand what they are at their source. That is where Robbins made the connection and asked the right question: How do I serve the most people?


That is the heart of opportunity. It is providing a service to those in need of a solution.


This focus point makes it far easier to actively seek out opportunities and even stumble upon some. As you look around your practice and the needs of your clients,and those who could be your clients, ask yourself how can you best serve them. That may be all that you need to focus your advice, your marketing efforts and your capital. With this insight in mind, I am going to focus on casting all of my efforts as service. In this mindset, I will be providing value as a matter of course.


It is not enough to ask how can I make money from this contract, dispute or transaction. It is the epitome of value to provide a useful service. If what you provide does not serve your client or customer, then it has little value and will likely be wasted time, or the source of dissatisfaction.

Serve first and serve many.

The low hanging fruit of the FLSA is gone.

I filed my first FLSA collective action in 2001. That was the boom time. The previously unsexy wage and hour claim had come to life. Plaintiffs' counsel were recognizing the great value of statutory attorney fees under a remedial statute coupled with a whole lot of unsuspecting employers.  Life was good and lucrative for more than a decade.


Now though, most employers of any size or sophistication are aware of the risks from unpaid OT or misclassification. Plaintiffs are relegated to rooting around in the cast-off theories of recovery. Big, valuable defendants are mostly gone.  


This well has been worked. Until there is a fracking analogue for FLSA claims, something that can pull more recoveries out of old theories, it is probably time to pull in the pipes and move on.


I know, I know. More than 8,400 FLSA cases were filed in 2012. It's popular. It's booming. How many were filed in 2001? Less than a 1,850. See, http://www.gao.gov/assets/670/660319.txt.  A 450% gain in a decade is quite a run.


But borrowing a phrase from the investment world: When everyone goes to one side of the ship, it's time to go to the other side. The Johnny-come-lately staffing by employer defense firms over the past two or three years seals it for me. By the time the Ogletree Deakins of the legal world got on board big time, the top in FLSA claims was near.


For lawyers looking for valuable practice areas, and I am speaking only from personal experience and my own observation-based opinion, the FLSA is played out. There are better opportunities elsewhere.

Seasons Greetings; and don't forget the time.

Seasons Greetings! I hope that during this holiday season you, your families, and your businesses are doing well. Here at Langendorf Law Firm we are all looking forward to 2015.

Often at the end of the year, when we are sitting around sipping egg nog and counting our blessings, we are reminded of events that make us wonder, “What if...?”.

If one of your “what if” events might require a trip to a court in Ohio, please remember these time limits:

● If you were hurt in an accident outside of work, you have 2 years from the date of the accident to file a lawsuit;
● If you had a written contract or agreement with someone and they broke the deal, then you have eight years to file;
● If you had an unwritten deal with someone and they broke it, then you have only six years;
● If someone tarnished your reputation publicly, causing you embarrassment, lost wages or other pain, you have only one year to file your suit;
● If you were harassed at work, or intimidated or retaliated against for reporting harassment, then you have 180 days to officially report that harassment;
● If you didn’t get paid overtime for weekly hours that you worked you worked in excess of forty, because your employer said you were a contractor, or were on salary, or were exempt, then you have a rolling two year limit on the period for which you can collect unpaid or underpaid wages.

THIS IS NOT A COMPLETE LIST OF TIME LIMITS FOR BRINGING LAWSUITS. There are other limits in state and federal law, specific to the states, or to the legal claims. If in doubt, then please call me at 513-705-4104.

If you miss a time limit, then your claim can never go forward. Don’t let a “what if” turn into an “If only I would have....”

When you think lawsuit, think Langendorf.

www.langendorflaw.com

WAGE AND HOUR LAWSUITS ARE GOOD FOR ETHICAL BUSINESSES

In my business, I help employees get paid what they were due by filing lawsuits against bad employers. Cases range in value from a few thousand to a few million dollars.

That being said, I am NOT an enemy to all businesses. Just to the bad ones.

When I file a lawsuit against a company for not paying overtime or minimum wages, a side effect on business is a leveling of the playing field for law abiding companies that pay legally acceptable wages.

By making bad employers responsible for underpaying their employees, I help the good employers do better. How? Well, if a weak company survives only by cheating its employees out of their wages, then my lawsuit will either make it go out of business, or make it less of a competitive threat when it has to pay up for past failures and pay legal wages in the future.

More often though, my efforts result in a positive change. It may be impossible for an employer to pay lawful wages and still sell products or services at the prices it was charging before it got caught cheating. Labor is usually a primary or secondary expense to a company. If the bad company’s labor costs were artificially low as a result of unlawful pay practices, then the new requirement of lawfully paid overtime and benefits will require a company to make a better product more cheaply, or to charge a price more in line with that charged by law abiding competitors.

My lawsuits provide another benefit to ethical companies: I cause the disclosure of the bad actors in the industry. If a company mistreats and underpays its employees, one can be almost certain that the cheater is chiseling or cheating its suppliers and customers. Potential customers take note too.

Nobody learns anything from silent, poisonous success. It is only when the ill effects of wage theft are revealed does an industry or custom change in a meaningful way, usually for the better.

By making sure employees are properly paid, I make bad businesses change or close, and I make good businesses look better. If you know anyone who is being unpaid or underpaid, either minimum wage or overtime, then let them know they can contact me. If they take action, then the business world gets better for every business.

Process to settle a filed FLSA claim.

Lawsuits claiming unpaid minimum wages and unpaid overtime are bread and butter for many attorneys. Nonetheless, the process for settling them seems clumsy and unnecessarily unique each time. 

 Under the FLSA and a growing volume of case law, the presiding judge has to approve any settlement of an FLSA claim, be it individual, collective under §216(b) of the Act, or as a class. A failure to get judicial approval can lead to the settlement being busted and unenforceable. It is rare, but not unheard of. 

 Usually when a judge has to okay something, it is public and viewable. This is particularly true when the statute upon which the claims and settlement are based is a remedial statute intended to protect the public. Judges tend to honor the spirit of the FLSA with some fidelity and the case law is similarly positive toward that spirit of remediation. However, many judges are willing to allow parties in FLSA unpaid wage cases to settle confidentially. After all a settlement is good for parties and courts alike. The matter is concluded satisfactorily and it is off the judge's docket. A win-win. 

Whether the settlement approved by the court is kept confidential really depends where the case is situated. Normal practice in federal court is to advise the court when a case has been settled before trial. The court will gratefully put on a conditional dismissal entry to the effect that the case is settled and dismissed without prejudice for sixty days. After that time has elapsed, the dismissal is converted to one with prejudice, i.e., never to be filed again. If in the sixty day period a party advises the court that an agreement was not finalized, or won't be, then the case is renewed on the court's docket. 

 This is usually a fine way to proceed. A deal is reached in principle, and the parties tell the court. Court is happy to delete the matter from its crowded calendar. Lawyers breathe easier knowing they will be getting paid after a short time haggling over release agreement details. In FLSA cases though, reporting a settlement before an agreement is approved can be a disaster. Not an end of the world disaster, but one that is fraught with procedural hiccups and a general cart before the horse vibe. It causes delays and uncertainty that nobody wants. I know. Trust me.

 It is error for parties to an FLSA case report to the court that a matter is settled when that settlement is based only on an agreement between counsel. To be SETTLED, the terms of the settlement have to be approved by the court. So telling the court that the matter is resolved and can be taken off the docket, before the judge has approved the terms of the agreement, puts the parties in the painful position of having a dismissed case, but an unapproved settlement. Now the parties have a case that reads as terminated on a federal judge's docket. And you know how intensely they pay attention to terminated cases. 

 Now the parties have to attract the judge's attention (and not their ire) to the settlement agreement. And even if the matter was well negotiated and all the parties are on board, the judge may not approve. Don't report an FLSA case as settled to the court based on counsel's agreement alone.

 If counsel reach an agreement in principle, but have to hammer out a confidential release agreement, then just wait. Do it like this: 1) Reach an agreement in principle; 2) file a joint motion to stay proceedings pending release agreement negotiations; 3) after reaching agreement on the release details, file a joint motion to approve the release/settlement agreement at the same time you present it to court confidentially, e.g., judge's chambers email; then 4) on judicial approval of the agreement and upon receipt of the settlement payment(s), the plaintiffs file their voluntary dismissal with prejudice. This process avoids the cart before the horse problem that rears up in FLSA cases prematurely reported as settled.