Judges matter. The life experiences they bring to the bench matter. So, when I see a concurrence like the one written by Judge Jones of the Fifth Circuit, I become concerned. In Pineda v. JTCH Apartments, LLC, No. 15-10932 (5th Cir. 12/19/2016), the employee recovered some $5,000 in damages. Santiago Pineda was a maintenance worker for the apartments. He and his wife lived in the apartments. He sued to recover unpaid overtime. Three days after filing suit, the apartment owner evicted Mr. Pineda and his wife for nonpayment of rent. The eviction action sought repayment of the rent from Maria Pena, Mr. Pineda’s wife. After being evicted, Maria Pena joined the lawsuit and alleged retaliation. After a three day trial, the jury awarded the plaintiff $1400 in lost wages and $3700 for the retaliation claim. The judge awarded liquidated damages, which in effect doubled the lost wage award.

The judge then awarded the plaintiff’s attorney some $76,000 in attorney’s fees. The judge reduced the attorney fee request by 25% because, said the trial court, the amount sought was “grossly” disproportionate to the amount recovered.

Both parties appealed. The plaintiffs appealed because they believe the court should have allowed emotional damages. Many courts have allowed a claim for emotional distress damages under the Fair Labor Standards Act. This three-judge panel concluded there was no reason why the district court could not have done so. It found the lower court should have allowed a claim for emotional distress damages.

The defendant argued that the claim for attorney’s fees was too high. It claimed the plaintiff’s attorney did not settle the case when he could have. This is a claim unique to Texas state law, described as the “doctrine of excessive demand.” They also claimed the complaint was filed in bad faith. But, said the court, the defendant waived this argument by not bringing it before the trial court. The higher court then ordered the case be remanded to address the claim for emotional distress damages. But, cautioned the court, the attorney’s fees are already quite high. So, counsel should proceed expeditiously.

Judge Jones then dissented, accusing the plaintiff’s attorney of engaging in hardball tactics in freezing the bank account of the employer during the lawsuit. Judge Jones accused the plaintiff attorney of freezing the bank account ex parte – meaning it was done without notice to the defendant. She also claimed that testimony “implied” that Mr. Pineda may have sued for this “tiny” sum only because the apartment manager reported Mr. Pineda for possible child abuse. She described the attorney’s efforts as possible procedural abuse. My concern is that having done collections type legal work, I know that freezing bank accounts is exceedingly difficult. It is possible to freeze the account ex parte, but if so, one must provide notice to the defendant immediately. Too, this vase reflects the purpose of having a statute that allows for attorney fees. If there were no attorney’s fees available, then such smaller claims would not be pursued.

Too, I do not know how many maintenance workers Judge Jones has known throughout her lifetime, but at least to the maintenance workers I have known, $1400 is not a “tiny” sum. In truth, Judge Jones may have never spoken to an actual maintenance worker. Yes, a judge’s life experiences do matter.

As I review the Docket Sheet, I do not see anything out of the ordinary in this lawsuit. It was not over-worked in some way. Neither party seems to have filed unnecessary motions. The defendant did not seek dismissal or summary judgment. The reality is that even relatively small amounts require a great deal of attorney time. If there is a problem of some sort, it may be that the plaintiff did not accept the amount offered in settlement. But, that is not unusual. Judge Jones appears to be looking for issues with which to cast the plaintiff in a negative light.