Update: Fisher/Sinclair counters FLSA class action with claim for prevailing party attorney’s fees

In February, I told you about a class action suit against Fisher and Sinclair over alleged FLSA violations.  At issue in that suit, and of concern to many broadcast groups, is whether certain classes of journalists are exempt under the FLSA’s overtime requirements.

You can read my original post here.

In March, the broadcast groups answered the Complaint and responded with two short, but meaningful Counterclaims.  You can read the Answer and Counterclaims here.  Simply put, Sinclair and Fisher are asking for prevailing party’s attorney’s fees under Oregon Statute, if the Plaintiff class loses its case.

The Counterclaims:

1. Defendants incorporate all of the matters admitted and alleged above. Defendants are entitled to their reasonable attorney’s fees under ORS 653.055(4), to the extent that
 ORS 653.055 applies, and to the extent Defendants are the prevailing party on claims under 
ORS 653.055.

2. Defendants are entitled to reasonable attorney’s fees under ORS 20.105, to the extent it is the prevailing party on claims and grounds asserted by Plaintiff without an objectively reasonable basis.

This is significant because it effectively shifts the behind-the-scenes burden back to the Plaintiffs to make sure their suit is not frivolous.  Often, plaintiffs’ attorneys will take cases like these on a contingency basis (NB:  I know NOTHING about the nature of the payment arrangement in this case).  As a result of the Counterclaims, the Plaintiffs now have real exposure of having to actually spend significant amounts of money if they lose.

Of the above two statutes cited, the second one is far more broad (and subjective):

Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis

(1) In any civil action, suit or other proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party willfully disobeyed a court order or that there was no objectively reasonable basis for asserting the claim, defense or ground for appeal.

(emphasis added).

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