By Marjorie Johnson, J.D.
An attorney representing two employees in a wage-hour collective action was ordered to pay defense counsel $10,000 in attorneys’ fees and costs as a sanction for making dishonest statements concerning why she belatedly filed the plaintiffs’ motion for conditional certification. Though the attorney claimed that she missed the deadline because she had to fly to Mexico City for a family emergency, the defendants submitted records of her Instagram account, which revealed that she was not in Mexico City when the motion was due. The court granted in part the defendants’ motion for sanctions, declining to hold her co-counsel liable (Ha v. Baumgart Cafe of Livingston, April 26, 2018, Hammer, M.).
Motion filed late. This putative collective action was filed by two cafe workers who alleged their employers violated the minimum wage and overtime provisions of the FLSA and the New Jersey State Wage and Hour Law. They were represented by local counsel and an attorney who was admitted pro hac vice. On October 7, 2016, the court granted plaintiffs’ request to file a motion for conditional certification with a deadline of November 23. On December 9—16 days past the deadline—local counsel filed a belated request for an extension of time as well as the motion for conditional certification.
A family emergency? In an attached letter, the attorney claimed that she had been “forced to leave the Country due to a family emergency in Mexico City” on November 21 and was unable to file “until today.” She also attached a flight itinerary which indicated that she had flown from New York to Mexico City on “Thursday, November 21″ and returned on December 8. On December 11, her co-counsel submitted a letter to the court explaining that he had emailed all motion papers to her on November 23 with the expectation that she would file the motion on that date. He also claimed that he was unaware of her family emergency and did know about the missed deadline until she told him about it on December 8.
Instagram posts reveal dishonesty. Defense counsel objected to the belated filing, pointing out numerous inconsistencies in the local counsel’s purported reason for the late submission and providing screenshots of her public Instagram account that revealed she was not in Mexico City when the motion was due. Rather, she was in New York City and then Miami. Defense counsel also observed that the “Thursday November 21, 2016″ date listed on her flight itinerary was not a real date since November 21 was a Monday.
On December 14, local counsel withdrew the motion for conditional certification with prejudice. Then, about a week later, she asked to change the withdrawal to be without prejudice. In attempting to explain the discrepancies regarding her alleged travel, she stated that she had gone to Mexico City earlier in November and that her mother’s medical diagnosis had sent her “into a tailspin” that caused her to miss the motion deadline. She also claimed that she gave the court an “erroneous itinerary” because she was suffering from the “emotional distraction” of her mother’s diagnosis. She also moved to withdraw as counsel.
Conditional certification granted. Meanwhile, her co-counsel sought reconsideration of the court’s order terminating with prejudice the motion for conditional certification, claiming he never sought to withdraw the motion. After a hearing, the court ultimately allowed plaintiffs to proceed with their motion for conditional certification, finding that the defendants were not irremediably prejudiced by the filing delay. The court also granted the local counsel’s motion to withdraw.
Sanctions warranted. Sanctions against the local counsel were appropriate since she deliberately misled the court and the other attorneys, including her co-counsel, about her failure to comply with the filing deadline. First, as exemplified by her social media posts, she misrepresented that she could not meet the filing deadline because she “was forced to leave the Country due to a family emergency in Mexico City.” Moreover, her misrepresentations were not made extemporaneously during a vigorously contested, fast-moving oral argument; rather, she made them in a letter that she drafted, had time to reflect on and review for accuracy, and submitted anyway, along with a flight itinerary that contained a day that never existed.
Indeed, she admitted at the January 2017 hearing that she was “not honest or forward” with the court and had undisputedly made no effort to correct or clarify the misrepresentations until well after the defendants pointed out the inaccuracies in their requests to strike. Her attempts to withdraw the belatedly filed motion, first with prejudice and then without prejudice, also were misleading and required both the court and the other attorneys, including her co-counsel, to expend time and resources to resolve the confusion. By representing that this was “as a result of discussions among Counsel,” she misleadingly created the distinct impression that she had discussed the request with her co-counsel when that was not actually the case.
Co-counsel not liable. However, sanctions were not warranted against her co-counsel because even if he had a duty to supervise her, any dereliction fell well short of the standard to impose sanctions. The record revealed that he provided her with the motion papers within the deadline, and when he learned that they had not been filed in time, he contacted the court to explain his actions. Furthermore, once aware of her dishonesty, he explained to the court that he had been unaware of the circumstances, asked to proceed with the motion, and urged the court not to punish his clients. He also made clear that he had not agreed to withdraw the motion with prejudice, and in fact had not been consulted before she asked the court to withdraw it.
Amount of sanctions. The court found that defendants’ bid for $44,283 in attorneys’ fees and costs was unreasonably high and that the billings were excessive. Reducing this amount, it awarded $10,000, to be divided equally among each of the defense attorneys.
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