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 theory, as the Supreme Court did ten years earlier in a case under the Fair Housing Authority Act and the Americans with Disabilities Act, Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). And the court in Dionne seemed to suggest that a defendant could effectively moot an FLSA case at any stage in the proceedings by tendering full payment to the plaintiff. As the court noted, "[t]he FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney’s fees and costs." When a district court dismisses a case as moot, as the district court did in Dionne, the plaintiff has not received a judgment, and therefore is not a prevailing party entitled to his fees and costs.

Or so I thought. While the Eleventh Circuit's January 13th decision is nearly identical to the opinion it issued ast July, a new footnote 5 states:

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.

I'm not sure how to interpret footnote 5. Does it mean that a plaintiff who has received full payment will be entitled to his fees and costs unless he concedes that his claim is moot? If so, why should the determination of mootness depend on what the plaintiff says about his claim? Isn't mootness a question of law for the court?

One thing seems clear: Savvy plaintiff's lawyers who read footnote 5 of Dionne will avoid conceding that their client's claim is moot. And in such a case, if the defendant tenders full payment to the plaintiff, footnote 5 seems to suggest that plaintiff may still be entitled to an award of attorney's fees and costs.

On the other hand, maybe footnote 5 does not foreclose district courts from dismissing FLSA cases as moot where the plaintiff has received full payment but disputes that his claim is moot. Maybe the Eleventh Circuit is merely saying in footnote 5, "we're not addressing that situation in this case." If so, it seems safe to say district courts will soon be addressing that situation. Plaintiffs and employers alike need to know whether a tender of full payment to an plaintiff moots the case, or whether the plaintiff can still recover his fees and costs as the prevailing party.