Overview
In opinion today reducing the attorney’s fees awarded to class counsel in an FLSA case, Judge Pauley criticized the plaintiffs’ attorneys for supporting their fees by citing “caselaw” suggesting that one-third of the recovery is an appropriate amount, when those cases were really signed orders drafted by counsel in other cases:
[T]here is reason to be wary of much of the caselaw awarding attorney's fees in FLSA cases in this circuit. Struck by extreme similarities in the wording of several decisions, this Court discovered that many of the authorities cited by Plaintiffs' counsel in support of their fee application are in fact proposed orders drafted by the class action plaintiffs' bar and entered with minimal, if any, edits by judges. Indeed, each of the four decisions mentioned above, the same authorities Plaintiffs cited in their brief, were proposed orders making findings of fact and conclusions of law drafted by plaintiffs' counsel requesting their own fees. . . . Orders drafted by counsel, especially those making findings of fact and conclusions of law that award counsel their own fees, should be given little precedential value By submitting proposed orders masquerading as judicial opinions, and then citing to them in fee applications, the class action bar is in fact creating its own caselaw on the fees it is entitled to. Because Westlaw and Lexis sweep every order of any significance into their databases, these form orders appear as if they were decisions by the judges who signed them. No wonder that "caselaw" is so generous to plaintiffs' attorneys. The mischief attendant to publishing proposed orders as judicial opinions is more vexing. Judges have wide latitude in deciding what to publish. But decisions of district judges are merely persuasive authority, not binding precedent, and publication should be the exception. Federal Judicial Center, Judicial Writing Manual: A Pocket Guide for Judges (2d ed.) at 7 (2013). A published opinion should signal "a novel or complex issue or a matter of public importance and thus may be useful to attorneys and judges or be of interest to the public." Judicial Writing Manual at 7. It is therefore particularly distressing when proposed orders drafted by Plaintiffs' counsel migrate into the Federal Supplement or Federal Rules Decisions as published opinions. Judges might heed the advice the Judicial Conference of the United States gave in 1964 and publish "only those opinions which are of general precedential value." See Donald R. Songer, Nonpublication of the United States District Courts: Official Criteria Versus Inferences from Appellate Review, 50 J. Politics 206,206 (1988).
