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Litigation
Lawyers who turned minor case into nasty standoff rebuked
By: Julie
April 25, 2007
Kay

he chief judge of the South Florida federal courts has blasted

attorneys on both sides in an unusually ugly overtime wage case,
describing their name-calling and refusal to settle “an abuse of the
judicial process” and an act of bad faith.

On April 9, Southern District of Florida Chief Judge

Web Extra: William J. Zloch denied Fort Lauderdale attorney
Magistrate's report Peter Mavrick’s request for attorney fees of
$150,000. Instead, Zloch awarded just $4,900 in
Final Order fees to Mavrick, the plaintiff attorney, and barred
him from receiving additional funds from his
Plaintiff motion to client’s settlement.
alter order Zloch said the case, which lasted nearly three
years and produced thousands of pages of court
files, should have been resolved with 19 hours of William J. Zloch
legal work. Legal experts not involved in the case say a six-figure attorney fee
request in a simple overtime case is extraordinary.

In 2004, Trina Carlson, formerly of Weston, sued her former employer, Dr. Marc Bosem, a Weston
ophthalmologist, for $11,000 in unpaid overtime wages. Bosem, who acknowledged he owed Carlson overtime
pay, was represented by Plantation lawyer Jeffrey Norkin. The case was settled in January 2006 for $11,000.

On the attorney fee request, Zloch this month overturned U.S. Magistrate Judge Lurana Snow’s award of
$142,000 in fees for 455 hours of work at $300 an hour, plus paralegal fees and costs.

“The parties allowed this relatively simple matter to erupt into a prolonged and bitter fight that occupies 276 filings,
hundreds of thousands of dollars in litigation fees, and an untold burden on the court’s scarce judicial resources,”
Zloch wrote.

He said Mavrick’s “unwillingness or inability to settle this matter was an unreasonable course of behavior in a
direct attempt to garner greater fees from this action.” But he also wrote that “Bosem and his attorney Norkin’s
unreasonable conduct exacerbated Mavrick’s bad-faith conduct, which further multiplied the proceedings and
abused the judicial process.”

In an interview, Mavrick denied that he acted in bad faith and said he plans to appeal Zloch’s fee ruling. “I
recovered the full amount for [Carlson] and she’s happy,” Mavrick said. “I did what I was supposed to do. The
defense fought every step of the way to get the case dismissed or removed.”

But Norkin said in an interview that Mavrick never offered a settlement amount and that the relationship between
the two sides soured from the start of the case when Mavrick accused Norkin of destroying time sheets. He said
he plans to appeal Judge Zloch’s decision not to issue sanctions against Mavrick.

For several years, defense attorneys have complained that plaintiff attorneys are filing overtime claims under the
federal Fair Labor Standards Act for small dollar amounts that require little litigation, then claiming attorney fees in
the tens of thousands of dollars. They complain these cases are clogging the federal courts and angering judges.

In 2003, Judge Federico A. Moreno rejected attorney Donald Jaret’s request for $16,000 in fees on a $315 claim
that was settled weeks after the claim was filed. In his order, Moreno wrote that the claim “shocks the conscience

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of the court. … This strategy of ‘shaking down’ defendants with nightmarishly expensive litigation in pursuit of
attorney fees must not be rewarded.”

Joseph Santoro, an employment lawyer at Gunster Yoakley & Stewart in West Palm Beach who is not involved in
the Carlson case, said judges here are more closely scrutinizing large attorney fees requests in simple overtime
cases.

“These single cases are not particularly novel cases and don’t require great skill,” Santoro said. “Typically they are
for a small amount of damages. It’s the attorney fees that are the issue. Because of the flood of these cases,
judges are looking at them with more of a strict eye.”

Knocked over court reporter

After the overtime pay suit was filed, the relationship between Mavrick and Norkin quickly deteriorated. Norkin
claimed that when Mavrick called him to schedule a deposition, Mavrick started the conversation by saying,
“Dickhead, when can we do this deposition?”

“I went around the office, stunned, telling everyone, this guy just called me a dickhead,” Norkin said.

But Mavrick claimed that Norkin called him a dickhead, and put the accusation in court papers. He also said
Norkin called his client “a bitch.”

At that point, Mavrick said, he refused to communicate orally with Norkin and insisted all communication be done
in writing. So the two sides did not speak for many months.

Then came an incident involving a court reporter. According to a report and recommendation filed by Magistrate
Judge Snow, defendant Bosem asked court reporter Ellen Fehr to close the door during a deposition at Bosem’s
office so they could have privacy.

But Mavrick told her to keep the door open. Bosem abruptly closed the door, which knocked Fehr, an older
woman, out of her chair.

When Fehr commented that she had never been treated this way in her 30 years of being a court reporter, Norkin
acknowledged telling her, “Maybe you’ve been doing this too long.” Fehr started crying and left the proceedings.

The court reporting agency, Esquire, refused to send a replacement court reporter, citing “danger.”

Snow sanctioned Bosem and Norkin, ordering them to pay for rescheduling the deposition, this time before a
special master.

But in an interview, Norkin defended his conduct, saying that Fehr “showed a total lack of decorum.” He also
denied that she fell. “She only stumbled slightly,” he said.

After repeatedly losing motions before Zloch, Norkin said he realized it would be in his clients’ best interest for him
to withdraw from the case. He did so in November 2005, allowing co-counsel Shawn Birken of Fort Lauderdale to
take over.

During the course of the case, Norkin filed several Florida Bar complaints against Mavrick. They were dismissed
by the Bar on the grounds that Norkin and Mavrick were in the middle of litigation.

Norkin said he may have erred by taking offense at being called “a liar” by Mavrick and then filing a Bar complaint
against him. Norkin also acknowledged that he is not experienced in handling employment cases and took the
case as a favor to his friend Bosem.

The underlying wage-and-hour case was resolved in 2005, after Carlson accepted a settlement for more than she
was seeking. But the litigation continued, with the lawyers seeking sanctions against each other and both
attempting to collect attorney fees.

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“This case was not a complex matter,” Zloch wrote, noting that Bosem acknowledged that he owed Carlson
overtime. “The only question that remained for litigation was Carlson’s damages, with a variance of a couple
thousand dollars between the parties. “

Norkin said he ran up $110,000 in legal fees and, without sanctions imposed on Mavrick, will have to eat the cost.

For his part, Mavrick said he fully litigated the case because that’s what his client wanted and because the
defendant did not offer the full settlement of $11,000 until three weeks before trial.

Mavrick claims that Judge Zloch’s order contained inaccuracies. He has filed motions to have Zloch alter or
correct the judgment, and plans to appeal if the order is not changed.

Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.

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