August 15, 2020

Volume X, Number 228

August 14, 2020

Subscribe to Latest Legal News and Analysis

August 13, 2020

Subscribe to Latest Legal News and Analysis

August 12, 2020

Subscribe to Latest Legal News and Analysis

Massachusetts Supreme Judicial Court OK’s Attorneys’ Fees for Wage Act Settlements

As has been long anticipated, the Massachusetts Supreme Judicial Court recently gave a green light to plaintiffs’ attorneys seeking a fee award under the Commonwealth’s Payment of Wages Act, even where an action ends in settlement.  The Wage Act (Mass. General Laws ch. 149 §§ 148150) awards costs and fees when an employee “prevails” in an action arising under the statute.  In Ferman v. Sturgis Cleaners, Inc., No. SJC-12602, decided Feb. 19, 2019, the highest court in the Commonwealth was faced with the question of whether an employee “prevails” when the parties settle the litigation.  The parties had agreed on a settlement amount to be paid to the plaintiff, but agreed to leave the question of fees to the court.  Defendants argued that the federal standard, which requires judicial approval of a private settlement in order for there to be a clear prevailing party, should apply.  Plaintiffs asserted that the “catalyst test” should control the outcome, under which plaintiffs who reach a settlement may qualify as a prevailing party, even without court involvement, so long as their lawsuit was a “necessary and important factor in causing the defendant to provide a material portion of the relief demanded in the plaintiff’s complaint.” The SJC, examining the underlying purposes of fee-shifting provisions (such as discouraging unlawful employer conduct and encouraging attorneys to represent employees) adopted the Plaintiffs’ approach.

Accordingly, in Massachusetts, employers should anticipate that Plaintiffs’ counsel may be entitled to costs and fees even when the parties reach an extrajudicial resolution.  Since a payment in respect of fees is already an integral component of most settlements, however, the decision should have little effect on current practice.  Nothing in the Court’s decision prohibits parties from reaching agreement on the amount of fees to be paid as part of the settlement.

© 2020 Proskauer Rose LLP. National Law Review, Volume IX, Number 51


About this Author

Mark W Batten, Labor & Employment Attorney, Proskauer Law Firm

Mark Batten is a Partner in the Labor & Employment Law Department and co-head of the Class/Collective Action Group, resident in the Boston office.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is...

Samantha L. Regenbogen, Labor & Employment, Proskauer Law Firm

Samantha Regenbogen is a law clerk in the Labor & Employment Department. 

Samantha was a summer associate in Proskauer's New York Office, and was involved in drafting briefs and memorandums for both wage and hour class actions and single-plaintiff discrimination cases. Before joining Proskauer, Samantha was an intern with the Enforcement Unit of the Massachusetts Commission Against Discrimination, where she investigated complaints and drafted dispositions.

During her time at Harvard Law School, Samantha served as a board member of the Women's Law Association and was a cast member and artistic director of the HLS Parody.

Thomas Fiascone Labor Employment Attorney

Thomas Fiascone is an associate in the Labor & Employment Law Department.

Tom earned his J.D. from Boston College Law School, where he was a senior editor and staff writer on the Boston College Law Review. During law school, Tom served as a judicial intern in the U.S. District Court for the District of Massachusetts and was a tutor in BC Law’s Academic Success Program.

Prior to law school, Tom was a paralegal in Proskauer’s Labor and Employment Law Department.