Shortchanged Workers Demand Attorneys’ Fees and a Fair Test for Determining Prevailing Party Status

By: Elizabeth Soltan ’19 and Patricio Rossi, Clinical Instructor of the Harvard Legal Aid Bureau

HLAB students Kenneth Parreno ’19 and Elizabeth Soltan ’19 with Clinical Instructor Patricio Rossi after oral argument at the Massachusetts Supreme Judicial Court on December 4, 2018.

The average American worker earns $7,500 less than they should according to a 2017 analysis from Glassdoor. Low-wage immigrant workers, particularly immigrant women, are disproportionately susceptible to workplace violations such as underpayment. Litigation to combat illegal practices such as wage theft costs more than these workers can afford. The Harvard Legal Aid Bureau (HLAB), a student-led civil legal aid organization at Harvard Law School, provides free legal representation to low-income and disenfranchised communities in the Greater Boston area, advocating for rights that may not otherwise be enforced for marginalized populations. Under the supervision of Clinical Instructor Patricio Rossi, nearly 10 HLAB students have played a critical role in helping two immigrant women of color obtain relief for wage theft from their employer. Two current students have been fighting to ensure low-wage workers like the women in this case have access to attorney’s fees. The suit, Ferman, et. al. v. Sturgis Cleaners, Inc., was brought by two former employees of the South Boston dry cleaners who claimed they were underpaid for their labor, a violation of the Massachusetts Wage Act and Overtime Pay Act.

Kellie MacDonald ’15 originally filed the case in 2014 in Suffolk Superior Court on behalf of the two former employees of Sturgis Dry Cleaners and Tailors. The suit alleged that the employer failed to pay the workers for all of their hours worked, including overtime hours, totaling approximately $28,000 in unpaid wages. The case settled in 2016 for approximately $20,000. The parties could not, however, agree to terms on attorney’s fees, and agreed to let the court decide the issue.

Khyrstyn McGarry ’17 and Michele Hall ’17 filed a petition for attorney’s fees, arguing that, pursuant to the “Catalyst Theory”, the workers were the prevailing party. The catalyst theory involves a two-part test. For a plaintiff to prevail, his/her lawsuit must be “a necessary and important factor in achieving the [sought-after] relief” and cannot be “frivolous, unreasonable, or groundless.” The plaintiffs argued they met both of the requirements of the catalyst theory.  The employers argued that a party could not be a prevailing party without clear court intervention. In the spring of 2017, the Superior Court awarded HLAB approximately $16,000 in attorney’s fees. The employers appealed the decision and HLAB students Jag Singh ’18 and Lark Turner ’18 filed an application with the Supreme Judicial Court (“SJC”) for Direct Appellate Review, which was eventually granted.

Immediately after returning from summer break, Elizabeth Soltan ’19, Kenneth Parreno ’19, and Josephine Herman ’20 began work on the workers’ appeal brief. Under a tight timeline, they crafted a persuasive argument that the “Catalyst Theory” is the proper test in Massachusetts to determine prevailing party status. Nearly ten groups, including the American Civil Liberties Union of Massachusetts, the Massachusetts Law Reform Institute, and the Immigrant Worker Center Collaborative, filed amicus briefs in support of the plaintiff-appellees. On December 4, 2018, Soltan argued before the Massachusetts Supreme Judicial Court. She spent an intense few weeks preparing and mooting her argument. All of the practice paid off as Soltan delivered an incredibly poised argument to the SJC justices. The argument centered on how to determine “prevailing party” status, for the purpose of awarding attorney’s fees, under the Massachusetts Wage Act.

The decision could have a major impact on how Massachusetts courts determine prevailing party status. It is currently unclear how the courts determine the prevailing party status, and there are 66 fee shifting statues in Massachusetts. Should the SJC accept the catalyst theory, it will provide a liberal framework of fee-shifting provisions to help those without the means to pay lawyers out-of-pocket to obtain representation. Working-class people can be discouraged from accessing the courts because of their inability to pay a lawyer. However, a fair test for fee-shifting provisions can help close the gap between the civil legal needs of working-class people and the resources available to them.

A decision in the case is expected in late winter/early spring.