right, since forty percent of the damages judgment was awarded at that time. The implementation of the Court of Special Appeals’ test thus creates an unnecessary, chilling constraint on the legislature’s at- torneys’ fees remedy that certainly would not enhance vindication of the public policy behind the wage payment and overtime statutes.
Shifted Attorneys’ Fees Are An Essential Element Of A Plaintiff ’s Make-Whole Relief, Not A Mere Windfall For Attorneys
The Court of Special Appeals’ opinion
misapprehends the nature and purpose of shifted attorneys’ fees. The text of L&E § 3-507.1 clarifies that shifted fees are in fact a central part of the plaintiff ’s remedy, by authorizing an award of attorneys’ fees to a prevailing plaintiff in the very same sentence in which it discusses the remedy of additional damages “not exceeding 3 times the wage.” In Friolo I, the Court of Appeals clari-
fied that the purposes of those provisions are consistent with the fee-shifting provi- sions of the federal civil rights statutes. In Evans v. Jeff D., 475 U.S. 717, 730 (1986), the United States Supreme Court held that Congress enacted the federal fee-shifting provisions as “an integral part
of the remedies necessary to obtain” com- pliance with civil rights laws, to further the same general purpose -- promotion of respect for civil rights -- that led it to provide the other remedies including damages and injunctive relief. Id; Venegas v. Mitchell, 495 U.S. 82, 87 (U.S. 1990). Thus, shifted fees are a critical part of the relief that is integral to making a plaintiff whole, and indeed, it is the party, rather than the lawyer, who obtains the entitle- ment to a shifted fee.
The Court of Special Appeals’ decision in Friolo II appears to have negated this central principle, by asserting that the payment of the damages judgment had already made Friolo—the client-- “whole” at the time of the appeal in Friolo I. Thus, the Court declined to acknowledge that it was not even correcting the Circuit Court’s original failure to award the at- torneys’ fees and costs incurred by Friolo in bringing her suit to trial on liability and damages, much less making her whole with regard to the cost of mounting her successful appeal of the Circuit Court’s original error. The Court of Special Appeals mis- characterized Friolo’s successful litigation before the Court of Appeals in Friolo I as a matter of “counsel’s dissatisfaction with the trial court’s fee award” (emphasis
added). Slip Op. at 13. However, the Friolo I appeal was no mere matter of a lawyer not liking his fee, but rather re- flected an effort to persuade the Court as to the principles and methods (lodestar) to be applied in determining Friolo’s overall relief for having been cheated out of her rightful wages and overtime. The Court of Appeals agreed and held that the principles and methods sought by Friolo apply generally under the wage payment and overtime statutes, and other remedial Maryland statutes that include fee-shift- ing provisions.
The Court Of Special Appeals’ Decision Places Too Little Importance On The Advancement Of The Law Achieved By Friolo In Friolo I
The Court of Special Appeals’ Friolo
II holding has the anomalous impact of precluding a plaintiff who was denied rightful wages from recovering compensa- tory attorneys’ fees for the very appellate litigation in which her efforts led to reversal of the Trial Court’s prior adverse decision. It also prospectively prevents Friolo from obtaining any fees for seek- ing implementation on remand of the fee issues to the Trial Court. Significantly, it renders Friolo unable to recover compen- satory fees even though the risk she took
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Winter 2007 Trial Reporter 49
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