On July 29, 2015, the Second Circuit issued a decision in Gortat v. Capala Bros., 14‐CV-3304, reversing a decision by the EDNY and holding that expert fees may not be awarded to a prevailing plaintiff under the Fair Labor Standards Act.
In Gortat, the EDNY awarded the plaintiffs, who had prevailed on their FLSA claims against the defendant, not only attorneys’ fees, but also reimbursement of expert fees “beyond the allowances authorized by 28 U.S.C. § 1920.” The Second Circuit reversed the award of expert fees, explaining:
The Supreme Court has made clear on multiple occasions that, absent explicit statutory authorization, a district court may not award reimbursement for expert fees beyond the allowances authorized by 28 U.S.C. § 1920, as limited by 28 U.S.C. § 1821. Unlike other statutory provisions explicitly authorizing such reimbursement, 29 U.S.C. § 216(b) of the FLSA does not expressly address awards reimbursing prevailing plaintiffs for expert fees. In particular, § 216(b)’s reference to “costs” does not constitute explicit statutory authorization to award expert fees. [T]he Supreme Court [has] stated that the word costs is a term of art that generally does not include expert fees. In the context of a fee provision contained in the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 18 § 1415(i)(3)(B), that likewise referred to costs, the Supreme Court stated that the use of this term of art, rather than a term such as expenses, strongly suggests that § 1415(i)(3)(B) was not meant to be an open‐ended provision that makes participating States liable for all expenses incurred by prevailing parents in connection with an IDEA case.
[That] reasoning is applicable here. Because 29 U.S.C. § 216(b) of the FLSA does not explicitly authorize courts to award reimbursement for expert fees, it does not permit a court to award such fees beyond the allowances recoverable pursuant to 28 U.S.C. § 1920 as limited by 28 U.S.C. § 1821.3 8 For this reason, the district court erred in awarding $10,425 in costs for expert fees pursuant to this provision.
(Internal quotations and citations omitted) (emphasis added).