This is great! A FLSA collective action filed against an amusement park company. A lead plaintiff and other plaintiffs added. So far, so good. Then, one of the lead plaintiffs settles independently with the employer and now the plaintiffs’ lawyer, this person’s lawyer (former lawyer) wants to depose his own client. The company is strongly fighting what it contends is a “bizarre” bid and one “riddled with ethical landmines.” The case is entitled Pilar Garcia et al. v. E.J. Amusements of NH Inc.and was filed in federal court in Massachusetts.

The Company argued that the plaintiff (Jennifer Merrill) reached a deal with the Company without her attorneys present and then requested that the lawyers dismiss her claims. The Company stated that Merrill had not reneged on her agreement and the opposition has not pointed to any precedent or legal authority to show that it can depose Ms. Merrill under these circumstances.

The case was filed in June 2013 by the single named plaintiff, with Merrill and several other named plaintiffs later added. The workers claimed that they were paid a flat rate for a forty hour week, but they claimed they “usually” worked 70-80 hours per week, much of it off-the-clock. Their work involved the assembling/dismantling and operation of amusement park rides all over New England. In papers filed with the court, the Company advised that Merrill settled “after growing weary of the slow pace of this action.” The Company took pains to point out that Merrill herself instigated the negotiations and although the Company advised that she consult with her lawyers, she did not want to do so.

The Company contends that the possibility of a lawyer deposing his own client “runs contrary to fundamental principles of legal ethics.” Obviously, the lawyers have confidential information about Merrill that they only secured through their representation of her. There was a great likelihood that this confidential information would/could be used against Merrill at her deposition. Thus, the Company argued that it would be improper for these lawyers to depose (i.e. cross-examine) Merrill for reasons adverse to her interests.

The Takeaway

Maybe because her lawyers did not act (in her mind) with sufficient alacrity in prosecuting the case was why Ms. Merrill settled. That does not matter. To me, this proposed action is one of desperation by plaintiff counsel. I concur as well that, ethically, there are boulder-like problems and obstacles to allow this. That should not, however, detract from the fundamental issue at stake here—whether these clearly non-exempt workers were compelled to work way beyond forty hours without overtime.