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Attorneys’ Fees and the Fair Labor Standards Act

December 3, 2018 By Satyen Gandhi

In Florida, if you bring a claim against your employer for not paying you for the hours you worked, or the right amount of overtime, your claim is governed by the Fair Labor Standards Act, or FLSA. When you file a claim, your attorneys can also make a claim for the fees they are owed for representing you. This means that you don’t have to pay your attorney from what you recover for what you weren’t paid. If your employer owed you $1,000.00 and you won, you would get your $1,000.00 in full. Your attorney would instead get paid for the time she spends representing you, which doesn’t come out of your recovery.

It doesn’t work the same way for the employer. Even if the employer wins the lawsuit, you don’t owe anything to your employer for its attorneys’ fees. FLSA is designed to protect employees from any potential of owing their employers money when they are suing to collect money they were owed in the first place. If you have a claim for unpaid wages or overtime, but you don’t win, you won’t owe anything in attorneys’ fees to the other side. The law is designed to help employees bring claims without fear of owing attorneys’ fees to their employers if they lose.

However, your attorneys may not always get all their fees. Recently, a decision came out of the United States Court of Appeals for the 11^th Circuit which reduced the amount of fees the attorneys representing the employer could collect. In Walker v. Iron Sushi, LLC, the 11^th Circuit affirmed the trial court’s order reducing the amount of attorneys’ fees sought by the employers attorneys from $27,627.99 to less than a third of that – $7,640. The fees were found to be largely duplicative as there were three firms representing the employees and all charging for the same work, or they charged for researching basic principles of law under FLSA that most attorneys familiar with FLSA would have already known. Most of the hours spent on settling the case were also cut by the court and deemed not to be things that were owed in attorney’s fees. This was because the employers offered to settle the amounts owed to the employees for unpaid wages originally in the amount of $4,260.16. Ultimately, the employees’ claims settled for $5,111.42. Given that there was less then a $1,000.00 difference between the original settlement amount and the actual settlement amount, the Court had a hard time believing that a reasonable amount of attorneys’ fees for the claim was over $27,000.00.

This is an example of a case where the attorneys would have been better off settling their fees rather than fight for more in court. The point is, claims for unpaid wages under FLSA can be tricky and come with many concerns, including attorneys’ fees. If you have questions about an unpaid wage claim, either as an employee or as an employer, you should speak to an attorney who is familiar with FLSA and knows how the attorney fees will play a role in settling any claim.

Social Media is the New Private Investigator

November 20, 2018 By Chase Carpenter

Depending on whether you’re suing or being sued, social media is either a friend or foe. For lawyers, if you are a Plaintiff’s attorney, social media is the enemy. However, if you are a civil defense attorney, it’s probably one of the best tools at your disposal. And the reason is simple, everyone is addicted to posting… and they post the minutia of their daily lives.

Lawyers used to have to go to the trouble of hiring a private investigator to follow you around and take pictures of you, for example, doing strenuous activities like hiking or swimming when you’re suing someone because you say you’re permanently injured. Now, you do the work for them! Selfies and status updates are a documentary of your life… or at least a version of it. And while most of us like to just post the highlights, doing so can paint a picture of a happy, healthy, you, when maybe the truth really is that you are injured and growing more depressed each day as the pain and financial strain weigh on you.

So, here are some tips on how to handle social media if you are ever in the unfortunate position of being in a personal injury claim or lawsuit.

Don’t Delete

In general, the advice is going to be not to go on a deleting rampage, but use your discretion here. If it is just routine page maintenance, probably not a big deal; however, if you walk into a lawyer’s office and then you start deleting, you’re probably doing something wrong. The main thing you want to do is stop posting or alter your posting habits – see #2 below. If something is already there, deleting it isn’t going to get rid of it, but it will make you look like you have something to hide. Even if you do have something to hide, in today’s tech-savvy world, it won’t stay hidden, so you need to just confront it. All this said, you CAN make your page private, and that’s advisable.

Don’t Talk About the Case

It’s sounds pretty simple, but if you are to the point of seeing a lawyer to pursue a claim, it is likely this is the forefront of your daily life. Resist the urge to update friends and family on any legal claims, pre-suit or a filed lawsuit. And, that urge will be tough to resist sometimes because social media gives us immediate feedback, and, often when dealing with injuries, it will give encouragement. Encouragement is good, but you have to resist talking about the case. If you talk about how you are feeling, just be aware that those words will 100% come back into play. If it is the truth, it’s the truth, but understand that 280 characters may not be enough to explain the context of having a good day while managing constant neck pain and headaches.

Don’t Post Pictures

This goes double for pictures – a picture may be worth 1000 words, but as soon as you post it, you have no control over what those 1000 words are… so just don’t do it. Pictures are one of the things people love most on social media, but when you post a picture, it can so easily be taken out of context. One smiling picture of you at the beach can easily sink a personal injury suit. And the reason is context – once a jury sees it, they make conclusions, and it doesn’t matter what your explanation may be. Pictures can be helpful in documenting injuries and recovery, but just keep them off social media.

Do – Continue to Live Your Life

You don’t have to disappear from social media, you just have to be very thoughtful about it. The legal rules and implications of posting have real-world consequences for any potential claim or suit. However, feel free to still participate on social media. You want to post or like pictures of babies, cat videos, and animals acting like people – go for it! Just keep away from posting about verdicts, conversations with your lawyer, or pretty much anything at all connected to your potential claim or lawsuit.

If you are injured, your attorney should address these issues in your initial consultation. If he or she doesn’t bring it up, you should. Ask questions and get a full understanding of the risks and understand the advice of your attorney – and follow that advice. Social media can be a wonderful thing, but when it comes to the social media world clashing with the legal world, it can really spell trouble for an injured person. Pictures and postings don’t come with further context… and once they are out, rarely does more context matter to a jury. So, don’t be your own private investigator – understand how to be thoughtful about your social media if you ever find yourself in the unfortunate position of being part of an injury claim or lawsuit.

6 Common Missteps When Buying a Business

November 8, 2018 By Chase Carpenter

So, you’re thinking of buying or selling a business. It’s exciting – and it’s a huge milestone in your life… but be careful, there are some common mistakes that are made in the rush of excitement and opportunity. Namely, it’s the rush part of the equation.

In today’s economy, businesses, particularly small businesses, are starting to see a renewed growth, and that means there’s opportunity for sellers to cash in on the equity they’ve built in their business ventures and an opportunity to take advantage of continued growth for buyers. However, given all this fervor, it also means that the details can get lost in the mix. No, it isn’t necessary to involve brokers and attorneys, but it can certainly be helpful. For the purpose of this article, we’ll let the brokers give their advice. But, from an attorney’s standpoint, there are 6 common missteps we see business buyers making – from the first-time buyers to the seasoned buyers.

Rush to Closing

The most common mistake we see as attorneys are buyers coming to us with unrealistic closing dates because they are afraid the seller will find someone else. Of course, the seller wants a quick closing date. And, they would really love it if you paid cash and asked no questions. But, that’s also how you end up in an attorney’s office months later wanting to sue the seller saying that you got swindled (when you probably didn’t). The buyer should plan for a realistic closing date that allows for due diligence to take place. Due diligence depends on the purchase and the industry, but generally, you want to allow at least 1-2 months on the short side with potentially 2-3 months if the due diligence is more complicated. You want to see financials, get records, dig into any potential liabilities (EVEN IF IT IS AN ASSET ONLY PURCHASE), check out the vendors, and look into as much about the business as possible. This is where a team consisting of an attorney, accountant, etc. can come in very handy. Importantly, to overcome the fear of losing out on the deal, you can create contracts that solidify the intent to purchase. This can be through a separate agreement or can be incorporated in the overarching purchase and sale agreement that details the timelines and events of the purchase, including the closing date.

Management transition

This is a common mistake of new buyers especially. But, even a seasoned buyer can fall into this trap if they are new to the industry or even the area of the business. To overcome this misstep, it is helpful to negotiate a transition period where management will provide some training and consultation to the new buyer. Often, this is thrown in as an incentive – usually for a short period of a couple weeks, maybe a month. If the buyer needs a longer transition, many will look to compensate the outgoing seller to keep them on as a consultant for a time period of any where from a couple months to a year.

Inventory/Relationship Management

Don’t make assumptions about what you are purchasing. If the business has inventory, it needs to be outlined and in an agreement as to what is included. The last thing you want is to close and find out you have no inventory when you assumed you purchased it. Likewise, in a service industry, if you are buying a business for the clientele, make sure it is included and make sure you have some sort of non-compete agreement in place so that you are protected from being sold a book of business only to have the seller open up down the block under a different name and start taking their old clients back.

IP/Name transfer

Again, no assumptions – if you are buying the business with the intent to use their systems and the goodwill of the name, make sure you are purchasing all of it, including things like licenses, the website, logos, etc. This is often overlooked and just assumed. Many successful businesses are successful because of their intellectual property and the systems they have in place. Make sure you have a written agreement as to what it is you are purchasing. And, with names, make sure the seller has the ability to sell the name and make sure you have preventions from the seller opening back up with the same or similar name.

Landlord-Tenant/Supplier Relations

Not all contracts just switch over because you buy the business. Likely, most will, but some may have things like personal guarantees where you will need approval of the other party to assume the terms of the contract. And, for some vendors and/or suppliers, you may want to renegotiate the terms depending on how you intend to run the business. These negotiations can be complicated, so it is helpful to have an attorney on your side that can review these agreements and advise you as to the terms and facilitate transfers. One of the most common transfers is getting the landlord to transfer the lease to the new buyer. Just as often, this is an opportunity to negotiate new terms. This is tricky territory so be careful, but just make sure it is addressed early because these transfers and negotiations take time.

Not reading the sales agreement

Finally, let’s say you’ve followed the overarching advice and hired an attorney to draft up a beautiful purchase agreement. So, what mistake can you make, right? Well, the big mistake is failing to actually read what the attorney wrote… and, more importantly, to ask questions where you may not understand what the agreement says. As attorneys, we tend to use jargon – if your attorney puts something in your purchase agreement you don’t understand, ask him/her to explain and see if there’s a simpler way they can word it. Also, make sure what is written is what you actually want in there. Your attorney is there to advise and to facilitate – at times, that means providing suggestions. Suggestions are just suggestions, you need to understand and agree to the substance.

In the end, buying a business is a very exciting event in your life. It should be a great experience, and it can be with some attention to detail. If you assemble the right team of advisors to guide you through the process, and you avoid the common missteps, you’re well on your way to a successful purchase and great new business venture.

Who Gets the Family Pet in a Divorce?

October 26, 2018 By Heather Cherepkai

The family pet is a member of the family and it is no surprise that it can be a very emotional and contentious issue in a divorce. Pets may feel like children, but sadly, in a divorce, pets are treated as property under Florida Law.

The Court will first look at whether the pet is marital property or if it is separate personal property wholly owned by one spouse. Generally, if one spouse individually had the pet prior to the marriage, then it is likely that ownership of the pet will be with that spouse. If the pet was acquired and shared by the couple, then it is considered marital property and subject to Florida’s equitable distribution process.

Just like any other asset, the Court will put a monetary value on the pet and the contributions made by each party. Contributions can include who paid for the pet, who took care of the pet, provided for the pet’s necessities, as well as each spouse’s physical and emotional health and ability to care for the pet.

It is always best to resolve all issues surrounding the family pet outside of Court, as the Court will not impose any pet visitation. If the spouses can work out an agreement without the Court’s intervention, it would be not only in their best interest, but their pet’s best interest as well. It is important to understand and look for signs of distress in the family pet, as the changes divorce brings is often an adjustment to many pets. The Court will not consider these issues and, thus, it is important for the spouses to consider their pet’s emotional health during this process.

Another important consideration is with children and their emotional and physical bond with the family pet. Therefore, consider having the pet included in the time-sharing plan to maintain consistency for the children and the family pet.

See Behind the Curtain – Attorney’s Fees

August 7, 2018 By Chase Carpenter

You can Google every legal topic out there and find a plethora of information – some good, some bad. What’s interesting is that you rarely can find out what you’ll actually pay for legal services. And the truth is that it’s a complicated subject because the Florida Bar has rules for what lawyers can charge for services… and for good reason: to protect you, the consumer. However, lawyers often use those same protections to protect their best secret – their fees. So, the point of this blog is to give real answers (to the best we can) to the question “what’s it going to cost?”

Personal Injury

Most personal injury cases are done on a contingency fee agreement that may or may not include costs. What does that mean? In Florida, we have to charge a reasonable fee that’s in line with our experience and the complexity of the case. Generally, that means a third of your recovery for pre-suit (before a lawsuit is filed) and 40% if a lawsuit is filed (and the other side defends that they did anything wrong… this one has a few details that your attorney should explain in detail and in writing). Any costs from the litigation will also be paid out of your recovery, and that means the costs for the experts who will need to testify for you, obtaining all of your medical records, the court reporter’s bills, and all the other costs as well. Now, that said, there are a lot of nuances to discuss with your attorney, but mainly just be aware that you need to know whether costs are included or in addition to the contingency fee and that the higher your recovery goes (e.g. in excess of a million dollars), the lower the attorney percentage of recovery can be. The long short, expect a contingency agreement where you pay nothing up front, but pay between one third to 40%, plus costs (which can be anywhere from hundreds of dollars to tens of thousands) of any recovery the attorney obtains for you.

Family Law/Divorce

This area can be widely varied, but tends to be a retainer that is billed against for attorney’s hourly rate fees (generally $250-$500 per hour… depends on several facts like the attorney’s experience, knowledge, case load and area in which they practice), and, of course, any costs, like filing fees. The retainer can vary, but you will usually be looking at $1,500 – $5,000 upfront. Sometimes you will see “non-refundable” retainers – that just means that the initial retainer is deemed earned immediately. If the attorney doesn’t do the work or doesn’t bill anything significant against it, they still may have to return it to you. The other form of a retainer is an advance against fees where they will just apply their invoices against the retainer and you will likely have to keep a certain amount in the attorney’s trust account. Non-refundable v. refundable trust account retainers have pros and cons. Again, you need to discuss this with your attorney and find out what you will have to pay for a retainer upfront, what that will likely cover, and if there will be anything extra owed, for instance if your case goes to trial.

Wills

A will or an estate package generally consists of a few documents meant to protect your wishes and your loved ones upon your incapacity or death. It is certainly not a happy subject, but a necessary one. The fees are usually a flat fee – usually $400 – $1,000 depending on the complexity. The more complex, the more components, so the more expensive, but that range gives a pretty good idea of what to expect.

Contract/Lease/Document Review or Drafting

It’s a good idea to have a contract reviewed by an attorney, but it is a big unknown what it will cost – and that goes doubly for drafting a contract. Generally, it is done on a flat fee, but it varies depending on complexity of the particular contract. So, use the attorney’s hourly wage as a basic rubric – $250 – $500 per hour. If it is a flat fee, the attorney will have to estimate their expected time so expect that you will be paying somewhere between $500 – $2,000 for a review and $750 – $3,000 for drafting. Those numbers are very elastic so discuss your goals and budget with an attorney before hiring one.

Lawsuits – Bringing them or Defending them

For the most part, if it isn’t a personal injury case, like an auto accident, or property damage, like following hurricane damage, you are looking at paying the lawyer by the hour. Generally, if you are looking for an attorney to defend you against a lawsuit, you are looking at paying that attorney by the hour. And, if that lawyer doesn’t know you, you will probably be paying a retainer of $3,000 – $5,000. The attorney will then bill against it at the hourly rate of $250 – $500 per hour. So, yes, it is expensive. Some cases, like defamation, may be done on a flat fee around $5,000, but that is the exception and not the norm. You may also find something like a non-refundable retainer around $1,500 – $2,500 that is billed against at the attorney’s hourly rate. Finally, there’s a chance you may find the ability to just get billed a flat fee per month at something like $300 – $500 per month. Generally, this will be involve only a few areas of law like mortgage foreclosure defense, but some attorneys use this fee structure for other cases. Litigation is complicated and expensive, but may be worth it – talk to your attorney and make sure you understand what you are looking at.

Business Representation

In this area, you will find many variations of fee structure, but the most common is a retainer against which the attorney will bill his or her hourly rate. That retainer usually varies with the industry or size of the business or, put differently, with the amount of work an attorney expects to come in from the business. Occasionally, you will see a smaller non-refundable retainer that gets billed against by the attorney. Now, the big businesses hire the biggest law firms and pay really big retainers. However, for most small businesses they likely don’t need that much legal consultation and they certainly can’t afford to spend tens of thousands on legal fees. For most, it is a good idea to have a lawyer that is familiar with them and can quickly handle any questions or needs, but it doesn’t have to be overly expensive. For retainers, you are likely looking at $3,500 – $7,500 and for non-refundable retainers, you are probably looking in the area of $2,500 – $5,000. And, a structure that is becoming more popular is a monthly flat fee set-up where the business pays a lump sum per month, whether services are used or not. The plus is that the fee is predictable, but, of course the downside is keeping track of the cost-benefit because you will be paying each month no matter what was done.

Conclusion – Find a Free Consultation

Here’s the point … most attorneys offer a free consultation and you should take advantage. Whether you meet with one or ten, meet with an attorney to know your options. Once you know the options, you can make the decision that fits best with your situation. Understand that law is a service and a business, but if you find the right attorney it will be worth the investment. Take the time to understand the costs and fees you will be paying… and, most importantly, what to expect in return.