Did The Eleventh Circuit Just Kill The Mootness Defense In FLSA Cases?

Last week, the Eleventh Circuit issued a revised opinion in an important Fair Labor Standards Act case, Dionne v. Floormasters, that calls into question the continued viability of the mootness defense in Fair Labor Standards Act cases. The court's January 13, 2012 decision replaced the decision it issued on July 28th of last year.

In the original decision, the Eleventh Circuit held that an employer who denies liability for nonpayment for overtime work is not liable for the plaintiff's attorney's fees and costs under 29 U.S.C. § 216(b) if the employer tenders the full amount of overtime pay claimed by the employee, and moves to dismiss on mootness grounds, where the employee has conceded that the claim for overtime should be dismissed as moot. Under such circumstances, the court held, dismissal of the employee's complaint, without an award of attorney's fees, is not erroneous under § 216(b) because the district court did not award judgment to the employee as the prevailing party.

Many employment lawyers, including myself, viewed Dionne as a groundbreaking decision. The opinion rejected the catalyst...

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