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News | Sep 09, 2018

An Important Tip for Pennsylvania Employment and Civil Rights Lawyers: Arbitrators Participating in the EDPA’s Arbitration Program are Neither Expected Nor Permitted to Award Attorney’s Fees; So File Your Fee Petition with the Judge

As many of the readers of this website know, the Eastern District of Pennsylvania has an arbitration program whereby certain cases with a total potential value of under $150,000 proceed to non-binding arbitration before a panel of three arbitrators.  This is an excellent program.  The arbitrators rule quickly and, unless the losing party objects and seeks a trial de novo, the arbitrators’ ruling is converted to a binding judgment.

Many of the cases in the program arise under federal employment and civil rights statues like the FLSA, the ADA, and Title VII.  These statutes contain provisions requiring that a prevailing plaintiff recover attorney’s fees and costs.  Over the years, lawyers have been a little confused about whether, in addition to awarding damages to a prevailing plaintiff, arbitrators are expected to also award fees and costs to the plaintiff’s lawyer.

I recently came across a very thoughtful 016 decision issued by Judge Mark Kearney in Saddler v. Pennsbury Racquet & Athletic Club LLC, 2016 U.S. Dist. LEXIS 165317 (E.D. Pa. Nov. 30, 2016).  Therein, Judge Kearney explains that the assigned judge — not the arbitrators — award fees and expenses to the prevailing plaintiff’s lawyer.  Thus, at arbitration, the parties and arbitrators can limit their analysis to liability and the plaintiff’s alleged damages.  Then, if plaintiff wins and neither party objects to the arbitration award, the Clerk will enter judgment in plaintiff’s favor and the plaintiff’s lawyer can file his/her fee petition with the assigned district court judge under the generally applicable procedures.  See generally Fed. R. Civ. P. 54.

In my opinion, Saddler makes a lot of sense and clears up any confusion that lawyers may have the interplay between the EDPA’s arbitration program and statutory fee-shifting.

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