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 §§ 148, 150) 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.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

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 responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.