Glatt et al v. Fox Searchlight Pictures Inc.
MEMORANDUM & ORDER granting in part and denying in part 89 Motion for Partial Summary Judgment; granting in part and denying in part 93 Motion for Summary Judgment; granting 103 Motion to Certify Class. For the foregoing reasons, Defendants 9; motion for summary judgment that Gratts's CAUCL claim is time-barred is granted, and the remainder of its summary judgment motion is denied. Glatt and Footman's motion for summary judgment that they are "employees" covered by the FLSA and NYLL and that Searchlight is their joint employer is granted. Gratts's motion for summary judgment is denied. Antalik's motions for class certification of her NYLL claims and conditional certification of an FLSA collective action are granted and the law firm of Outten & Golden LLP is appointed as class counsel. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 89, 93, and 103. (Signed by Judge William H. Pauley, III on 6/11/2013) (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
11 Civ. 6784 (WHP)
ERIC GLATT, et al.,
MEMORANDUM & ORDER
-againstFOX SEARCHLIGHT PICTURES
INC., et ana.,
Plaintiffs Eric Glatt, Alexander Footman, Kanene Gratts, and Eden Antalik bring
this putative class action under the Fair Labor Standards Act ("FLSA"), New York Labor Law
("NYLL"), and California Unfair Competition Law ("CAUCL") against Defendants Fox
Searchlight Pictures Inc. ("Searchlight'') and Fox Entertainment Group, Inc. ("FEG"). Plaintiffs
contend that Searchlight and FEG violated federal and state labor laws by classifying them as
unpaid interns instead of paid employees.
Glatt, Footman, and Gratts move for summary judgment that (1) they were
"employees" covered by the FLSA and NYLL and (2) Searchlight was their employer. Antalik
moves for class certification of her NYLL claims and conditional certification of a collective
action for her FLSA claims. Defendants move for summary judgment that (1) Gratts's claims
are time-barred; (2) Searchlight did not employ Glatt, Footman, or Gratts; (3) FEG did not
employ Antalik; and (4) Searchlight did not employ any of the production interns on five films
financed by Searchlight. For the following reasons, Plaintiffs' summary judgment motion is
granted in part and denied in part, Defendants' summary judgment motion is granted in part and
denied in part, and Antalik's motions for class certification ofher NYLL claims and conditional
certification of an FLSA collective action are granted.
Glatt and Footman were unpaid interns who worked on production of the film
Black Swan in New York. After production ended, Glatt took a second unpaid internship
relating to Black Swan's post-production. Gratts was an unpaid intern who worked on
production of the film 500 Days of Summer in California. Antalik was an unpaid intern at
Searchlight's corporate offices in New York.
FEG is the parent corporation of approximately 800 subsidiaries, including co
defendant Searchlight. Searchlight produces and distributes feature films. Searchlight does not
produce the films itself. Rather, it enters into Production-Distribution-Finance Agreements
("Production Agreements") with corporations created for the sole purpose of producing
The Film Productions
Black Swan began as a collaboration between director Darren Aronofsky and
producer Scott Franklin. Aronofsky and Franklin incorporated Lake of Tears, Inc. for the
purpose of producing Black Swan. On November 2,2009, Searchlight and Lake of Tears
entered into a Production Agreement for Black Swan.
500 Days of Summer was produced by 500 DS Films, Inc., a corporation created
solely to produce that film. Searchlight entered into a Production Agreement with 500 DS Films
for 500 Days of Summer. The Production Agreements for Black Swan and 500 Days of Summer
do not differ materially from one another.1 They gave Searchlight the power to hire and fire
production personnel, set budgets, and monitor the progress of films.
FEG's Internship Program
Antalik claims she was part of a "centralized unpaid internship program" in which
unpaid interns at FEG's subsidiaries were subject to a single set of policies administered by a
small team of intern recruiters. She maintains that two employees oversaw FEG's internship
program during the relevant periods and their responsibilities included soliciting "intern request
forms" from supervisors at subsidiaries interested in hiring interns, approving those requests,
screening internship applicants, and processing interns' paperwork. According to Antalik, she
and the members of her proposed class and collective action were victims of a common policy of
using unpaid interns to perform work that required them to be paid.
Defendants deny there was any "centralized" internship program. They argue
internships varied considerably among various FEG subsidiaries and departments, and interns'
experiences were shaped by the particular supervisors they were matched with.
Summary Judgment Motions
Summary judgment should be granted if the record shows that "there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
The burden of demonstrating the absence of any genuine dispute as to a material fact rests with
the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving
May 10,2013 Tr. at 52:23-53:4.
party has made an initial showing that there is no genuine dispute of material fact, the non
moving party cannot rely on the "mere existence of a scintilla of evidence" to defeat summary
judgment, Liberty Lobby, 477 U.S. at 252, but must set forth "specific facts showing that there is
a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (emphasis in original); see also Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315
F.3d 171, 175 (2d Cir. 2003) (citation omitted). "A dispute about a 'genuine issue' exists for
summary judgment purposes where the evidence is such that a reasonable jury could decide in
the non-movant's favor." Beyer v. Cnty. ofNassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting
Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). "Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue
for trial. '" Scott v. Harris, 550 U.S. 372,380 (2007) (quoting Matsushit~ 475 U.S. at 586-87).
The Court resolves all factual ambiguities and draws all inferences in favor ofthe
non-moving party. See Liberty Lobby, 477 U.S. at 255; see also Jeffreys v. City ofN.Y., 426
F.3d 549, 553 (2d Cir. 2005). A party opposing summary judgment "is not entitled to rely solely
on the allegations of her pleading, but must show that there is admissible evidence sufficient to
support a finding in her favor on the issue that is the basis for the motion." Fitzgerald v.
Henderson, 251 F.3d 345,361 (2d Cir. 2001). "Conc1usory allegations, conjecture, and
speculation ... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156
F.3d 396, 400 (2d Cir.1998).
Statute of Limitations for Gratts's CAUCL Claim
Defendants argue Gratts's CAUCL claim is time-barred. The CAUCL has a four
year statute oflimitations. Cal. Bus. & Prof. Code § 17208. Gratts was not a plaintiff when the
action was filed in September 2011. 2 Pursuant to this Court's individual practices, Plaintiffs
filed a pre-motion letter on August 2, 2012 requesting leave to move to file an amended
complaint. 3 The pre-motion letter attached a proposed amended complaint, adding Gratts as a
plaintiff. On September 5,2012, Plaintiffs filed a motion to amend the complaint. On October
19,2012, Plaintiffs filed their amended complaint.
Gratts's claims do not relate back to the filing of the original comp1aint. 5
Defendants contend that Gratts's action was "commenced" on September 5,2012 because "the
date of the filing of the motion to amend constitutes the date the action was commenced for
statute oflimitations purposes." Rothman v. Gregor, 220 F.3d 81, 96 (2d Cir. 2000); see also
Nw. Nat'l Ins. Co. v. Alberts, 769 F. Supp. 498, 510 (S.D.N.Y. 1991). But "[t]he theory
underlying this rule is that a ... defendant is on notice at the time a plaintiff files its motion
because the plaintiff attached the proposed amended complaint to the motion." In re Methyl
Tertiary Butyl Ether Prods. Liab. Litig., MDL No. 1358 (SAS), 2007 WL 2979642, at *4
(S.D.N.Y. Oct. 10,2007). Here, Defendants were on notice of Gratts's claims when Plaintiffs
submitted their pre-motion letter and included a draft amended complaint. See Reza v. Khatun,
No. 09 Civ. 233 (MKB), 2013 WL 596600, at *4 (E.D.N.V. Feb. 15,2013); Lekic v. 222 E. 8th
S1. LLC, No. 11 Civ. 1242,2012 WL 4447625, at *1,4 (B.D.N.V. Sept. 25, 2012). Thus, Gratts
commenced her claim on August 2,2012.
Accordingly, Gratts's claim is timely only if she worked on the 500 Days of
Summer production on or after August 2, 2008. The amended complaint alleges, somewhat
CompL (Docket Entry # 1).
3 Docket Entry #24.
4 Docket Entry #27.
5 Oct. 9, 2012 Tr. at 14:17-15:4 (Docket Entry # 51).
unconfidently, that Gratts's internship lasted from May 1, 2008 "through approximately August
2008.,,6 The only evidence that Gratts's internship in fact continued into August is her testimony
that when she performed her last internship task, taking down movie sets, "the weather was
really hot. It was warm and it was at the end of summer. It was in August.,,7 When asked
whether she would have any basis to dispute records indicating her internship ended earlier, she
conceded "I'm just going by what I remember, so if your records say one thing, I'm going by ...
the way I remember it ... It was in the first week of August.,,8
Defendants have produced records demonstrating Gratts' s internship ended before
August. Gratts testified there were approximately six weeks of shooting followed by a "wrap
party," about a two week break, and then about five days of taking down sets. 9 Charles Varga,
the art director for 500 Days of Summer, maintains that shooting wrapped on June 21,2008. 10
And the invitation to the wrap party announces June 22, 2008 as the event date. 11 Giving full
credit to Gratts's testimony that she worked for five days two weeks after shooting wrapped, her
internship would have ended July 9,2008.
But there is reason to believe Gratts' s internship may have ended even sooner.
Steven Fox, head of the construction department for 500 Days of Summer, claims that his
involvement with the film did not end until the sets were dismantled. I2 His time sheets show that
June 25, 2008 was the last date he worked on the film.I3 And Varga moved to other proj ects in
Am. Compl. ~ 148 (Docket Entry #58).
Dep. of Kanene Gratts dated Dec. 5, 2012 ("Gratts Tr.") at 45:7-9.
8 Gratts Tr. 45:19-23.
9 Gratts Tr. 93: 19-22,95: 17-97:6.
to Declaration of Charles Varga ("Varga Decl."), dated Feb. 13, 2013 ~ 5 (Docket Entry #100).
11 Varga Decl. Ex. A.
Declaration of Steven Fox ("Fox Decl."), dated Feb. 14, 2013 ~ 9 (Docket Entry #101).
Fox Decl. ~ 5, Ex. A.
July 2008. 14 As art director, all set work-including dismantling sets-was completed before he
moved on. 15
Moreover, Gratts testified that she only worked at one film location during her
internship, where she helped to build sets and then dismantle them. 16 She recalled that they built
cubicles and other rooms to create an office for a greeting card company and built an apartment
upstairs. 17 That construction occurred at the historic Fenton Building, at 833 South Spring Street
in Los Angeles. 18 The call sheets for 500 Days of Summer show that filming at the Fenton
Building was completed on May 17, 2008. 19 The location rental agreement shows that the
building was rented by the production only until May 23,2008. 20
In sum, the only evidence that Gratts worked in August 2008 is her recollection,
four years later, that when her internship ended, "the weather was really hot ... it was in
August.'.2l This "scintilla of evidence" is not "evidence on which the jury could reasonably [md
for the plaintiff" Liberty Lobby, 477 U.S. at 252. This conclusion does not require a credibility
determination, given her concession that she could be persuaded by documentary evidence,z2
Plaintiffs argue that even if Gratts's internship ended before August 2008, her
claims should be saved by the doctrine of equitable tolling. "[E]quitable tolling is only
appropriate 'in rare and exceptional circumstances in which a party is prevented in some
extraordinary way from exercising [her] rights." Zerilli-Edelglass v. N.Y.C. Transit Auth., 333
14 Varga Decl. ~ 7, Exs. B-C.
15 Varga Decl. ~ 6.
16 Gratts Tr. 74:24-78:3.
17 Gratts. Tr. 76:1-10.
18 Fox Decl. ~~ 6-7.
19DecI. of Elise M. Bloom, Esq. ("Bloom 8J Decl.") dated Feb. 15,2013 (Docket Entry #109), Ex. DO.
20 Decl. of8teven Wolfe ("Wolfe Decl."), dated Feb. 13,2013 (Docket Entry #99), Ex. A.
21 Gratts Tr. 45:7-9.
22 Gratts Tr. 45:19-23.
F.3d 74,80 (2d Cir. 2003) (internal quotations and alterations omitted). Equitable tolling is
appropriate when the plaintiff (1) filed a defective pleading that otherwise would have been
timely, (2) was unaware ofher cause of action due to the misleading conduct of the defendant, or
(3) has a medical or mental condition preventing her from proceeding in a timely fashion.
Zerilli-Edelglass, 333 F.3d at 80. If one ofthose conditions applies, the plaintiff must show she
"(1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2)
has proved that the circumstances are so extraordinary that the doctrine should apply." ZerilliEdelglass, 333 F.3d at 80-81 (internal quotation omitted).
Gratts has a weaker claim to equitable tolling than her co-plaintiffs because she is
the only plaintiff who was aware ofher potential wage claim nearly from the day it accrued.
Gratts testified that she understood she would earn minimum wage at her internship.23 After her
internship, she left several messages at the production office and even went to the Fox Studios
lot to try to get her paycheck,24 Unlike an unpaid intern who does not realize she may be entitled
to compensation, Gratts was aware of her claim since 2008 and did not act with reasonable
diligence in the time period she seeks to have tolled.
Gratts's CAUCL claim is time-barred because her internship ended before August
2008 and she is not entitled to equitable tolling.
Was Searchlight the Employer of Glatt and Footman?
Plaintiffs and Defendants each move for summary judgment on the issue of
whether Searchlight was the "employer" of Glatt and Footman as that term is defined in the
FLSA and NYLL. The FLSA defines "employ" as "to suffer or permit to work." 29 U.S.c. §
Gratts Tr. at 66: 12-19; 69:12-70:8; 149:19-25.
Gratts Tr. 74:6-19; 185:6-186:5.
203(g). The law allows for the possibility ofjoint employers, and "all joint employers are
responsible, both individually and jointly, with all the applicable provisions of the [FLSA]." 29
C.F.R. § 791.2(a).
"[T]he 'striking breadth' of the FLSA's definition of 'employ' 'stretches the
meaning of 'employee' to cover some parties who might not qualify as such under a strict
application of traditional agency law principles.'" Barfield v. N.Y.C. Health & Hosps. Corp.,
537 F.3d 132, 141 (2d Cir. 2008) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
326 (1992)). "[W]hether an employer-employee relationship exists for purposes of the FLSA
should be grounded in 'economic reality rather than technical concepts.'" B(!rfield, 537 F.3d at
141 (quoting Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961)). "Employment"
under the FLSA is "to be determined on a case-by-case basis by review of the totality of the
circumstances." Barfield, 537 F.3d at 141-42. "Above and beyond the plain language,
moreover, the remedial nature of the statute further warrants an expansive interpretation of its
provisions so that they will have 'the widest possible impact in the national economy.'" Herman
v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (quoting Carter v. Dutchess Cmty.
ColI., 735 F.2d 8, 12 (2d Cir. 1984)).
"When it comes to 'employer' status under the FLSA, control is key." Lopez v.
Acme Am. Envtl. Co., No. 12 Civ. 511(WHP), 2012 WL 6062501, at *3 (S.D.N.Y. Dec. 6,
2012). The Second Circuit has set out different tests to aid in determining whether an
employment relationship exists under the FLSA. Carter adopted a four-factor test to determine
whether an alleged joint employer exercised "formal control" over an employee: "whether the
alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records." 735 F.2d at 12 (quoting Bonnette v. Cal.
Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983».
Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003) articulated another set
of factors for determining whether an alleged employer exercised "functional control" over an
employee even ifit lacked formal control: "(1) whether the [alleged employer's] premises and
equipment were used for the plaintiffs' work; (2) whether the [subcontractors] had a business
that could or did shift as a unit from one putative joint employer to another; (3) the extent to
which plaintiffs performed a discrete line-job that was integral to [the alleged employer's]
process ofproduction; (4) whether responsibility under the contracts could pass from one
subcontractor to another without material changes; (5) the degree to which the [alleged
employer] or [its] agents supervised plaintiffs' work; and (6) whether plaintiffs worked
exclusively or predominantly for the [alleged employer]." 355 F.3d at 72.
The NYLL's definitions are nearly identical to the FLSA's. See N.Y. Lab. Law §
2(7); see also Garcia v. La Revise Assocs. LLC, No. 08 Civ. 9356 (LTS) (THK), 2011 WL
135009, at *5 (S.D.N.Y. Jan. 13,2011). Courts use the same tests to determine joint
employment under both the NYLL and the FLSA. See paz v. Piedra, No. 09 Civ. 03977 (LAK)
(GWG), 2012 WL 121103, at *5 (S.D.N.Y. Jan. 12,2012); Ansoumana v. Gristede's Operating
Corp., 255 F. Supp. 2d 184, 189 (S.D.N.Y. 2003).
A. Formal Control Test
1. Hiring and Firing Power
This factor focuses on the "the power to hire and fire," not whether that power
was exercised. See Carter, 735 F.2d at 12. The Black Swan Production Agreement required
Searchlight's approval to hire key production staff, including the department heads where Glatt
and Footman interned?S Though Searchlight did not hire the line producers or department heads
on Black Swan, it often did on other films with similar Production Agreements. 26 Searchlight's
ability to hire managerial staff is enough to satisfy this factor. See Herman, 172 F.3d at 140
(Although Defendant's "hiring involved mainly managerial staff, the fact that [Defendant] hired
individuals who were in charge ofthe [Plaintiffs] is a strong indication of control."); Torres v.
Gristede's Operating Corp., No. 04 Civ. 3316 (PAC), 2011 WL 4571792, at *2 (S.D.N.Y. Sept.
23,2011) ("There is no evidence that [Defendant] hired any class member, but there does not
have to be. It stands uncontradicted that he hired managerial employees.").
Searchlight's power to fire Black Swan production staff was unbridled.
Searchlight reserved the right, "in its sole reasonable discretion," to "require [Lake of Tears] to
dispense with the services of any person rendering services with respect to [Black Swan]. ,,27
Because Searchlight acquired the power to fire, it is irrelevant that Glatt was offered his
internship and Footman began his before Searchlight became involved with Black Swan. Glatt's
supervisor told Glatt he needed "to clear with the Fox production executive for interns to be
working for free and getting no college credits.,,28
Defendants argue that Searchlight had the right to fire employees "only if certain
conditions were met.,,29 But Searchlight had the right to require Lake of Tears to fire any worker
Decl. of Rachel Bien in Supp. of Pis.' Mot. For Partial Summ. J., dated Feb. 15,2013, ("Bien SJ Decl.") (Docket
Entry 1#)2), Ex. 22 ("Production Agreement").
26 Dep. of Elizabeth Sayre dated Aug. 15,2012 ("Sayre Tr.") 22:5-11; 53:5-55:12. The Court may consider
evidence of Searchlight's control over the productions of films other than Black Swan, because as Defendants
conceded, Searchlight's rights with respect to the films did not differ materially. May 10,2013 Tr. at 52:23-53:4;
see also Herman, 172 F.3d at 139 ("Since economic reality is determined based upon all the circumstances, any
relevant evidence may be examined so as to avoid having the test confined to a narrow legalistic definition."
(emphasis in original».
27 Production Agreement (emphasis added).
28 Bien SJ Decl. Ex. 14.
29 Mem. of Law in Opp. to Pis.' Mot. for Partial Summ. 1. ("Defs.' SJ Opp. Br.") (Docket Entry #118) at 11.
at Searchlight's "sole reasonable discretion.,,3o Regardless, "[c]ontrol may be restricted, or
exercised only occasionally, without removing the employment relationship from the protections
of the FLSA, since such limitations on control do not diminish the significance of its existence."
Herman, 172 F.3d at 139.
2. Searchlight's Ability to Supervise or Control Work Schedules or Conditions
Searchlight closely supervised work on Black Swan. The production sent
Searchlight "crew lists" with the contact information for all staff, including interns.
Searchlight required them to send daily "call sheets" listing the scenes to be filmed the next day
and the work schedules for all personne1. 32 The production also sent Searchlight daily "wrap
reports" listing scenes scheduled to be filmed that day, scenes actually filmed, and the hours
worked by production employees. 33 Searchlight Executive Vice President Elizabeth Sayre
required production employees to call her each morning to let her know what time filming began
and again each evening to let her know what time shooting wrapped. 34 The production sent
Searchlight weekly schedules and cost reports detailing expenses. 35 It needed Searchlight's
permission to incur cost overruns. 36
Status as a joint employer "does not require continuous monitoring of employees,
looking over their shoulders at all times." Herman, 172 F.3d at 139. In Herman, the Second
Circuit affirmed the district court's finding that the defendant supervised and controlled
employee work schedules where he "kept himself apprised of  operations by receiving periodic
Sayre Tr. 78:1-79:1.
32 Sayre Tr. 46:21-48:10.
33 Sayre Tr. 50:11-51:1, 81:15-82:16.
34 Sayre Tr. 82:3-22.
35 Sayre Tr. 125:1-22; Production Agreement; Bien SJ Decl. Ex. 6 Ex. B, Ex. 27.
36 Sayre Tr. 177:22-179:5.
reports from employees," including phoning managerial employees "reasonably frequently."
Herman, 172 F.3d at 137.
3. Whether Searchlight Determined the Rate and Method of Payment
Searchlight set the overall budget for Black Swan and set the allocations for each
line item. 37 Glatt and Footman argue that through its control ofthe budget, Searchlight "de
facto" set wages for all production workers. 38 In Rutherford Food Corp. v. McComb, 331 U.S.
722 (1947), the Supreme Court held that a slaughterhouse jointly employed meat de-boners even
though they were directly controlled by a boning supervisor who contracted with the
slaughterhouse. In Zheng, the Second Circuit discussed Rutherford and noted that "the
slaughterhouse de facto set the workers' wages, because the boners did no meat boning for any
other firm and shared equally in the funds paid to the boning supervisor." Zheng, 355 F.3d at 72.
Here, the crucial factor of equally sharing wages is absent. An increase in the wages budget
would not necessarily result in across the board raises; the production might have hired
additional workers or increased pay to particular employees.
But even though Lake of Tears hired Glatt, it needed Searchlight's permission to
have an unpaid intern who was not receiving college credit. 39 Moreover, Searchlight withheld
employees' pay until they signed Searchlight-approved employment agreements. 40 While
Searchlight may not have had the power to set employees' rate of pay, it was involved in their
method of pay. Cf. Herman, 172 F.3d at 140 ("little evidence" showed defendant determined
plaintiffs' rate ofpayment, "[b]ut he did participate in the method ofpayment").
Sayre Tr. 17:11-18:12.
Mem. of Law in Support of PIs.' Mot. For Partial Summ J. ("PIs.' SJ Br.") (Docket Entry #90) at 26 (citing
Zheng. 355 F.3d at 72).
39 Bien SJ Decl. Ex. 14.
40 Sayre Tr. 75:24-76:11; Bien Decl. Ex. 19.
4. Whether Searchlight Maintained Employment Records
Searchlight required production staff to sign confidentiality agreements and
employment agreements known as "deal memos." Moreover, Searchlight insisted that Black
Swan employees sign revised deal memos it drafted even if they had signed memos before
Searchlight's involvement. 41 Searchlight did not allow production employees to be paid until
they signed one of Searchlight's deal memos. 42 After shooting wrapped, Searchlight required
Lake of Tears to send it the signed memos. 43
Searchlight takes a narrow view, pointing out there is no evidence that Glatt,
Footman, or any other unpaid intern signed a deal memo. 44 But the fact that Searchlight required
memos from the paid employees who oversaw the unpaid interns is evidence of control over the
B. Functional Control Test
A district court must "look beyond an entity's formal right to control the physical
performance of another's work before declaring that the entity is not an employer under the
FLSA." Zheng, 355 F.3d at 69. "[A]n entity can be a joint employer under the FLSA even when
it does not hire and fire its joint employees, directly dictate their hours, or pay them." Zheng,
355 F.3d at 70.
1. Whether Searchlight's Premises and Equipment Were Used for Plaintiffs' Work
Glatt and Footman's internships were based at Lake of Tears' offices, which it
leased before signing the Production Agreement with Searchlight. 45 There is no evidence either
Bien SJ Decl. Ex. 21; Sayre Tr. 172:9-74:4, 115:8-23.
42 Sayre Tr. 75:24-76: 11; Bien Decl. Ex. 19.
43 Bien Dec!. Ex. 42.
44 Defs.' SJ Opp. Br. at 17.
45 Dep. of Alexander Footman, dated May 7,2012 ("Footman Tr.") at 198:2-4.
Glatt or Footman ever visited Searchlight offices or used its equipment. The fact that Lake of
Tears' office space and equipment may have been rented or purchased in part by funds from
Searchlight does not transform them into Searchlight's premises or equipment.
2. Whether Lake of Tears Could Shift From One Putative Joint Employer to Another
This factor is derived from Rutherford, where the plaintiff meat boners "had no
business organization that could or did shift as a unit from one slaughterhouse to another."
Rutherford, 331 U.S. at 730. The Second Circuit observed this is relevant to joint employment
"because a subcontractor that seeks business from a variety of contractors is less likely to be part
of a subterfuge arrangement than a subcontractor that serves a single client." Zheng, 355 F.3d at
The Black Swan production could not shift from one film studio to another. The
Production Agreement prohibited Lake of Tears from taking Black Swan elsewhere unless
Searchlight abandoned the project or failed to advance funds. 46 It is irrelevant that the
Production Agreement did not prohibit Lake of Tears from working on other projects. This
ignores economic reality in the film industry, where a film is produced by a single-purpose entity
whose operations cease after the film is made. 47
3. Extent to Which Plaintiffs Performed a Discrete Line-Job That Was Integral to
Searchlight's Process of Production
In Rutherford, the meat boners' work was "a part of the integrated unit of
production" at the slaughterhouse. Rutherford, 331 U.S. at 729. "Interpreted broadly, this factor
could be said to be implicated in every subcontracting relationship, because all subcontractors
perform a function that a general contractor deems 'integral' to a product or service." Zheng,
Franklin Tr. 16:5-14.
355 F.3d at 73 (emphasis in original). But the Second Circuit has held this factor "to mean that
work on a production line occupies a special status under the FLSA." Zheng, 355 F.3d at 73.
Glatt and Footman's work was not part of an "integrated production unit" comparable to a
production line. Zheng, 355 F.3d at 73.
4. Whether Responsibility Could Pass From One Subcontractor to Another Without
In Rutherford, "even when the boning supervisor abandoned his position and
another supervisor took his place ... the same employees would continue to do the same work in
the same place." Zheng, 355 F.3d at 74 (emphasis in the original). "[T]his factor weighs in
favor of a determination ofjoint employment when employees are tied to an entity such as the
slaughterhouse rather than to an ostensible direct employer such as the boning supervisor."
Zheng, 355 F.3d at 74.
The crew of Black Swan was tied to Searchlight, not Lake of Tears. Searchlight,
in its "sole reasonable discretion," had the power to replace key production personnel without
material changes to those underneath them. 48 Searchlight could even have dismissed Lake of
Tears and taken over the production. 49 The crew was not tied to Lake of Tears, which everyone
knew would cease operations after delivering Black Swan to Searchlight.
5. Degree to Which Searchlight Supervised the Plaintiffs' Work
Supervision "weighs in favor ofjoint employment only if it demonstrates
effective control ofthe terms and conditions ofthe plaintiffs employment." Zheng, 355 F.3d at
7 5 (citing Rutherford, 331 U.S. at 726)). "By contrast, supervision with respect to contractual
warranties of quality and time of delivery has no bearing on the joint employment inquiry."
Zheng, 355 F.3d at 75. As discussed above, Searchlight closely monitored work on the Black
Swan production and exercised effective control over it.
6. Whether Plaintiffs Worked Exclusively or Predominantly for Searchlight
As Defendants concede, Footman and Glatt worked exclusively on Black Swan,
which weighs in favor of finding joint employment. 5o
In sum, the formal and functional control tests "state no rigid rule" and "provide
'a nonexclusive and overlapping set of factors' to ensure that the economic realities test
mandated by the Supreme Court is sufficiently comprehensive and flexible to give proper effect
to the broad language of the FLSA." Barfield, 537 F.3d at 143 (quoting Zheng, 355 F.3d at 75
76). Summary judgment may be granted to the plaintiffs "even when isolated factors point
against imposing joint liability." Zheng, 355 F.3d at 77. Searchlight emphasizes the lack of
evidence that Glatt or Footman themselves were ever "controlled" by Searchlight, but "[s]uch a
contention ignores the relevance ofthe totality ofthe circumstances." Herman, 172 F.3d at 140
(rejecting argument that overall operational control is irrelevant "and that only evidence
indicating  direct control over [Plaintiffs] should be considered").
The fact that all four formal control factors weigh in favor of finding Searchlight
was ajoint employer is sufficient to find Searchlight was Plaintiffs' employer even ifno
functional control factors were satisfied. That conclusion is bolstered by the finding that
Searchlight also exercised significant functional control. And, in the end, it is all about control.
Lopez, 2012 WL 6062501, at *3.
Defs.' SJ Opp. Br. at 22.
Was Searchlight the Employer of All Production Interns?
Discovery in this putative class action has been limited to interns on the
productions of five representative Searchlight films: Black Swan, 500 Days of Summer, Our
Family Wedding, Cedar Rapids, and The Savages. Defendants move for summary judgment
finding that none of the production interns on any of these films were employed by Searchlight.
But Glatt, Footman, and Gratts are the only production interns who are plaintiffs in this action.
There is no proposed class containing any other production interns. As previously discussed,
Gratts's claim is time-barred, and Searchlight was the employer of Glatt and Footman. Summary
judgment is denied as moot as to any other production interns, as there are none in this action.
Was FEG Antalik's Employer?
Defendants move for summary judgment holding that FEG was not a joint
employer of Antalik under the FLSA or NYLL. Defendants argue that FEG is not liable for its
subsidiary's acts except in extraordinary circumstances because of the "strong presumption that a
parent is not the employer of its subsidiary's employees."Sl But that standard relates to piercing
the corporate veil, not finding joint employment under the FLSA. Cf. Flemming v. REM Conn.
Cmty. Servs. Inc., No. 11 Civ. 689 (JBA), 2012 WL 6681862, at *4-5 (D. Conn. Dec. 21, 2012).
When a parent is held to be a joint employer under the FLSA, it is not being held liable for the
acts of its subsidiary, rather, it is liable for its own acts of control over an employee. The same
formal and functional control tests discussed earlier apply in determining whether FEG was
Antalik asserts that she was part of a centralized internship program run by FEG.
Interns received offer letters welcoming them to "Fox Entertainment Group's internship
Defs.' SJ Br. at 26 (quoting Balut v. Loral Elec. Sys., 988 F. Supp. 339,344 (S.D.N.Y. 1997».
program.,,52 Intern recruiters Aimee Hoffman and Laura Wiggins oversaw internships at various
FEG companies.53 Hoffman did not recruit Antalik, but when Hoffman became aware of
Antalik's internship, she required Antalik to submit paperwork to continue her internship.54
Hoffman sent internship guidelines applicable to all FEG interns to Antalik's supervisor at
Searchlight. 55 Hoffman provided training to intern supervisors at FEG.
FEG exercised some
control over interns' schedules at its subsidiaries by requiring interns to work between 16 and 24
hours per week, or 40 hours in the summer. 57 And FEG maintained employment records and a
personnel file for Antalik. 58
This evidence raises factual disputes that preclude summary judgment in favor of
Were Glatt and Footman "Employees" Covered by the FLSA and NYLL?
Glatt and Footman move for summary judgment holding they were "employees"
covered by the FLSA and NYLL and do not fall under the "trainee" exception established by
Walling v. Portland Terminal Co., 330 U.S. 148 (1947).
In Walling, a case involving a railroad that held a week-long training course for
prospective brakemen, the Supreme Court determined that "trainees" were not covered
employees under the FLSA. The trainees "[did] not displace any of the regular employees, who
52 Dec!. of Rachel Bien in Opp. to Defs.' Mot. for 8umm. 1, dated Mar. 29, 2013 ("Bien 81 Opp. Decl.") (Docket
Entry #140) Exs. 87,99.
53 Dep. of Aimee Hoffman, dated Aug. 16,2012 ("Hoffinan Tr.") at 265:2-268:22. Defendants emphasize Hoffman
was employed by Fox Group, New America Inc. and not by FEG. Decl. of Aimee Hoffman, dated Mar. 26, 2013 ~2
(Docket Entry #128). However, this does not preclude the possibility she administered a centralized FEG internship
program. Her email signature lists her position as "FEG intern recruiter." Bien Class Cert. Decl. Ex. 22.
54 Bien 81 Opp. Decl. Ex. 63.
55 Bien 81 Opp. Decl. Ex. 95.
56 Bien 81 Opp. Decl. Ex. 86.
57 Bien 81 Opp. DecL Exs. 65, 78.
58 Bien 81 Opp. Decl. Exs. 68, 69.
[did] most of the work themselves, and must stand immediately by to supervise whatever the
trainees do." Walling, 330 u.s. at 149-50. The trainees' work "[did] not expedite the company
business, but may, and sometimes [did], actually impede and retard it." Walling, 330 U.S. at
150. The Court held that the FLSA "cannot be interpreted so as to make a person whose work
serves only his own interest an employee of another person who gives him aid and
instruction ... the [FLSA] was not intended to penalize [employers] for providing, free of
charge, the same kind of instruction [as a vocational school] at a place and in a manner which
would most greatly benefit the trainee." Walling, 330 U.S. at 153. The Court concluded that
"[a]ccepting the unchallenged findings here that the railroads receive no 'immediate advantage'
from any work done by the trainees, we hold that they are not employees within the Act's
meaning." Walling, 330 U.S. at 153.
A Department of Labor fact sheet helps to determine whether interns at for-profit
businesses fall within this exception. See U.S. Dep't of Labor Fact Sheet #71 (April 2010)
("DOL Intern Fact Sheet"). The Fact Sheet notes that "[t]he Supreme Court has held that the
term 'suffer or permit to work' cannot be interpreted so as to make a person whose work serves
only his or her own interest an employee of another who provides aid or instruction." It
enumerates six criteria for determining whether an internship may be unpaid:
1. The internship, even though it includes actual operation of the facilities of the
employer, is similar to training which would be given in an educational
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision
of existing staff;
4. The employer that provides the training derives no immediate advantage from the
activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to ajob at the conclusion of the internship;
6. The employer and the intern understand that the intern is not entitled to wages for
the time spent in the internship.
"This exclusion from the definition of employment is necessarily quite narrow because the
FLSA's definition of 'employ' is very broad." DOL Intern Fact Sheet.
The Second Circuit has not addressed the "trainee" exception to the FLSA.
Defendants urge that the DOL factors are not the applicable standard and that this Court should
apply a "primary benefit test" by determining whether "the internship'S benefits to the intern
outweigh the benefits to the engaging entity.',59
While some Circuits have applied a "primary beneficiary" test, it has little support
in Walling. The Supreme Court did not weigh the benefits to the trainees against those of the
railroad, but relied on findings that the training program served only the trainees' interests and
that the employer received "no 'immediate advantage' from any work done by the trainees."
Walling, 330 U.S. at 153 (emphasis added).
Thus, Walling created a narrow exception to an expansive definition. "A broader
or more comprehensive coverage of employees ... would be difficult to frame." United States v.
Rosenwasser, 323 U.S. 360,362 (1945). There is "no doubt as to the Congressional intention to
Defs.' SJ Opp. Br. at 23. (citing Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518,525 (6th Cir. 2011)
("[T]he ultimate inquiry in a learning or training situation is whether the employee is the primary beneficiary of the
work performed."); Blair v. Wills, 420 F.3d 823,829 (8th Cir. 2005) (fmding students' chores at boarding school
were not work where they "were primarily for the students' ... benefit"); McLaughlin v. Ensley, 877 F.2d 1207,
1209 (4th Cir. 1989) ("[T]he general test used to determine if an employee is entitled to the protections of the Act is
whether the employee or the employer is the primary beneficiary of the trainees' labor."»; see also Velez v.
Sanchez, 693 F.3d 308,330 (2d Cir. 2012) (in determining whether a plaintiff is a domestic service worker covered
by the FLSA, "[a] court should also consider who is the primary recipient of benefits from the relationship"),
include all employees within the scope of the Act unless specifically excluded." Courts should
be cautious in expanding the "trainee" exception established in Walling.
Moreover, a "primary beneficiary" test is subjective and unpredictable.
Defendants' counsel argued the very same internship position might be compensable as to one
intern, who took little from the experience, and not compensable as to another, who learned a
101. 60 Under this test, an employer could never know in advance whether it would be required to
pay its interns. Such a standard is unmanageable.
By contrast, the DOL factors have support in Walling. Because they were
promulgated by the agency charged with administering the FLSA and are a reasonable
application of it, they are entitled to deference. 6l Wang v. Hearst Corp., --- F.Supp.2d ----, 2013
WL 1903787, at *5 (S.D.N.Y. May 8, 2013) (citing United States v. Mead Corp., 533 U.S. 218,
234 (2001)). No single factor is controlling; the test "requires consideration of all the
circumstances." Archie v. Grand Cent. P'ship, 997 F. Supp. 504, 532 (S.D.N.Y. 1998); see also
Wang, 2013 WL 1903787, at *4 ("[T]he prevailing view is the totality of the circumstances
As noted above, "since the NYLL's definition of employment is nearly identical
to the FLSA's[,] courts in this circuit have held that the New York Labor Law embodies the
same standard for employment as the FLSA." Cano v. DPNY, Inc., 287 F.R.D. 251,260 n.2
(S.D.N.Y. 2012) (internal quotation and alterations omitted). The analysis for the trainee
May 10, 2013 Tr. 42:2343:8.
61 Defendants argue the DOL factors do not deserve deference because DOL opinion letters, which do not stem from
"formal agency adjudication or notice-and-comment rulemaking, are not binding authority." Defs.' 8J Opp. Br. at
25 n.14. (quoting Barfield, 537 F.3d at 149). But even if not binding, "such agency letters represent 'a body of
experience and informed judgment to which courts and litigants may properly resort for guidance. '" Barfield, 537
F.3d at 149 (quoting Gualandi v. Adams, 385 F.3d 236, 243 (2d Cir. 2004). The DOL Intern Fact Sheet was issued
in 2010, but the same six factors "have appeared in Wage and Hour Administrator opinions since at least 1967."
Reich v. Parker Fire Prot. Dist., 992 F.2d 1023, 1027 (lOth Cir. 1993).
exception to the NYLL is the same as that for the FLSA. 62 See Wang, 2013 WL 1903787, at *3
1. Training Similar to an Educational Environment
While classroom training is not a prerequisite, internships must provide
something beyond on-the-job training that employees receive. "A training program that
emphasizes the prospective employer's particular policies is nonetheless comparable to
vocational school if the program teaches skills that are fungible within the industry." Reich v.
Parker Fire Prot. Dist., 992 F.2d 1023, 1028 (lOth Cir. 1993).
Footman did not receive any formal training or education during his internship.63
He did not acquire any new skills aside from those specific to Black Swan's back office, such as
how it watermarked scripts or how the photocopier or coffee maker operated.
It is not enough
that Footman "learned what the function of a production office was through experience.,,65 He
accomplished that simply by being there, just as his paid co-workers did, and not because his
internship was engineered to be more educational than a paid position.
The record for Glatt is inconclusive on this factor. Plaintiffs argue he "did not
receive any training on Black Swan.,,66 But Glatt claimed only that he didn't learn much. 67
Whether someone learned anything does not answer the question of whether training or useful
knowledge was offered. As any student knows, even a classic educational environment
sometimes results in surprisingly little learning.
The New York State Department of Labor has its own fact sheet for unpaid internships incorporating the six DOL
factors and adding five additional considerations. See Bien SJ Dec!. Ex. 35.
63 Footman Tr. 140:4-10; 221:18-222:8.
64 Footman Tr. 36:22-27:16; 93:12-21; 96:9-97:5.
65 Footman Tr. 97:6-14.
66 PIs. SJ Br. at 4,
67 See Glatt Tr. 121:4-11; 305:25-306:6.
2. Whether the Internship Experience is for the Benefit of the Intern
Undoubtedly, Glatt and Footman received some benefits from their internships,
such as resume listings, job references, and an understanding of how a production office works.
But those benefits were incidental to working in the office like any other employee and were not
the result of internships intentionally structured to benefit them. Resume listings and job
references result from any work relationship, paid or unpaid, and are not the academic or
vocational training benefits envisioned by this factor.
On the other hand, Searchlight received the benefits of their unpaid work, which
otherwise would have required paid employees. Even under Defendants' preferred test, the
Defendants were the "primary beneficiaries" of the relationship, not Glatt and Footman.
3. Whether the Plaintiffs Displaced Regular Employees
Glatt and Footman performed routine tasks that would otherwise have been
performed by regular employees. In his first internship, Glatt obtained documents for personnel
files, picked up paychecks for coworkers, tracked and reconciled purchase orders and invoices,
and traveled to the set to get managers' signatures. 69 His supervisor stated that "[i]fMr. Glatt
had not performed this work, another member of my staff would have been required to work
longer hours to perform it, or we would have needed a paid production assistant or another intern
to do it.,,7o At his post-production internship, Glatt performed basic administrative work such as
drafting cover letters, organizing filing cabinets, making photocopies, and running errands. 71
This is work that otherwise would have been done by a paid employee.
Footman Tr. 97:6-14,212:24-213:10.
Bien 8J DecL Ex. 9 '\116.
70 Bien 8J Decl. Ex. 9 '\116.
71 Bien 8J Decl. Ex. 6 '\17-8.
Footman performed similar chores, including assembling office furniture,
arranging travel plans, taking out trash, taking lunch orders, answering phones, watermarking
scripts, and making deliveries. 72 Again, if Footman had not performed these tasks for free, a
paid employee would have been needed. When Footman went from five to three days a week,
Black Swan hired another part-time intern. 73
4. Whether Searchlight Obtained an Immediate Advantage From Plaintiffs' Work
Searchlight does not dispute that it obtained an immediate advantage from Glatt
and Footman's work. They performed tasks that would have required paid employees. There is
no evidence they ever impeded work at their internships. Menial as it was, their work was
essentiaL The fact they were beginners is irrelevant. The FLSA recognizes this by authorizing
the Secretary of Labor to issue certificates allowing "learners" and "apprentices" to be paid less
than minimum wage. See 29 U.S.c. § 214(a). "An employee is entitled to compensation for the
hours he or she actually worked, whether or not someone else could have performed the duties
better or in less time." Donovan v. New Floridian Hotel. Inc., 676 F.2d 468,471 n.3 (11th Cir.
5. Whether Plaintiffs Were Entitled to a Job at the End of Their Internships
There is no evidence Glatt or Footman were entitled to jobs at the end of their
internships or thought they would be.
6. Whether Searchlight and the Plaintiffs Understood They Were Not Entitled to Wages
Glatt and Footman understood they would not be paid. 74 But this factor adds
little, because the FLSA does not allow employees to waive their entitlement to wages. "[T]he
PIs.' Rule 56.1 Statement (Docket Entry #91) ~ 223.
Footman Tr. 43:3-9.
74 Glatt Tr. 77:5-18; Footman Tr. 20:24-21:3.
purposes ofthe Act require that it be applied even to those who would decline its protections. If
an exception to the Act were carved out for employees wi1ling to testify that they perfonned
work 'voluntarily,' employers might be able to use superior bargaining power to coerce
employees to make such assertions, or to waive their protections under the Act." Tony & Susan
Alamo Found. v. Sec'y of Labor, 471 U.S. 299, 301 (1985). This protects more than the
Plaintiffs themselves, because "[s]uch exceptions to coverage would ... exert a general
downward pressure on wages in competing businesses." Tony & Susan Alamo Found., 471 U.S.
at 302. It also protects businesses by preventing anticompetitive behavior. "An employer is not
to be allowed to gain a competitive advantage by reason of the fact that his employees are more
willing to waive [FLSA claims] than are those of his competitor." Brooklyn Sav. Bank v.
O'Neil, 324 U.S. 697, 710 (1945).
Considering the totality of the circumstances, Glatt and Footman were classified
improperly as unpaid interns and are "employees" covered by the FLSA and NYLL. They
worked as paid employees work, providing an immediate advantage to their employer and
perfonning low-level tasks not requiring specialized training. The benefits they may have
received-such as knowledge of how a production or accounting office functions or references
for future jobs-are the results of simply having worked as any other employee works, not of
internships designed to be uniquely educational to the interns and of little utility to the employer.
They received nothing approximating the education they would receive in an academic setting or
vocational school. This is a far cry from Walling, where trainees impeded the regular business of
the employer, worked only in their own interest, and provided no advantage to the employer.
Glatt and Footman do not fall within the narrow "trainee" exception to the FLSA's broad
Class Certification ofAntalik's NYLL Claims
Antalik moves to certify a class consisting of
[a]ll individuals who had unpaid internships in New York between September 28,
2005 and September 1, 2010 with one or more of the following divisions of FEG:
Fox Filmed Entertainment, Fox Group, Fox Networks Group, and Fox Interactive
Media (renamed News Corp. Digital Media).
She asserts Defendants violated the NYLL with respect to the proposed class.
A party seeking class certification must first satisfy Federal Rule of Civil
Procedure 23(a), which "requires that a proposed class action (1) be sufficiently numerous, (2)
involve questions oflaw or fact common to the class, (3) involve class plaintiffs whose claims
are typical of the class, and (4) involve a class representative or representatives who adequately
represent the interests of the class." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010)
(citing Fed. R. Civ. P. 23(a». In addition, "the proposed class must satisfy at least one of the
three requirements listed in Rule 23(b)." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2548
(2011). Here, Antalik relies on Rule 23(b)(3), which "requires the party seeking certification to
show that 'questions oflaw or fact common to class members predominate over any questions
affecting only individual members' and that class treatment would be superior to individual
litigation." Myers, 624 F.3d at 547 (quoting Fed. R. Civ. P. 23(b)(3».
Rule 23 "does not set forth a mere pleading standard." Wal-Mart, 131 S. Ct. at
2551. Rather, "[t]he party seeking class certification must affirmatively demonstrate compliance
with the Rule, and a district court may only certify a class if it is satisfied, after a rigorous
analysis, that the requirements of Rule 23 are met." In re Am. Int'l Grp., Inc. Sec. Litig., 689
F.3d 229, 237-38 (2d Cir. 2012).
The numerosity requirement is met if "the class is so numerous that joinder of all
members is impracticable." Fed. R. Civ. P. 23(a)(l). "[N]umerosity is presumed at a level of 40
members." Consol. Rail Corp. v. Town of Hyde Park, 47 FJd 473,483 (2d Cir. 2005). While a
party seeking class certification must prove ''there are in fact sufficiently numerous parties,"
Wal-Mart, 131 S. Ct. at 2551 (emphasis in original), "[c]ourts have not required evidence of
exact class size or identity of class members to satisfy the numerosity requirement." Robidoux
v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).
Antalik offers Defendants' intern personnel database as proofthere were at least
45 class members who interned between 2007 and 2010. 75 But Defendants argue that their
database can "not be relied upon for its accuracy.,,76 If anything, the proposed class is likely to
be larger than the database indicates. The proposed class period dates to 2005, but 36 of the 45
interns in the database were hired in 2009, and none before 2007. 77 Based on this, the Court is
permitted to draw a "reasonable inference" that there are at least 40 class members. See
Alcantara v. CAN Mgmt., Inc., 264 F.R.D. 61, 64-65 (S.D.N.Y. 2009). Moreover, the
Defendants cannot argue that the class size "is far too indefinite and speculative,,78 and thereby
capitalize on their own inability to produce accurate information. See McNeill v. NY.C. Hous.
Auth., 719 F. Supp. 233, 252 (S.D.N.Y. 1989) ("[T]he lack of knowledge as to the exact number
75 Decl. of Rachel Bien in Support of Pis.' Mot. for Class Certification and Court-Authorized Notice, dated Feb. 15,
2013 ("Bien Class Cert. Decl.") (Docket Entry #105) ~ 12, Ex. 74.
76 Mem. of Law in Opp. to PI. Eden Antalik's Mot. for NYLL and FLSA Certification ("Defs.' Class Cert. Opp.
Br.") at 13 (Docket Entry #138) (emphasis in original).
77 Bien Class Cert. Decl. Ex. 74; see also Dep. of David Johnson, dated Dec. 13,2012111:11-19 (People Soft was
only used to track interns for "a relatively short period oftime").
78 Defs.' Class Cert. Opp. Br. at 14.
of affected persons is not a bar to maintaining a class action where the defendants alone have
access to such data.")
Nor have Defendants rebutted the presumption ofnumerosity. Joinder is
impracticable here because Plaintiffs do not have accurate information regarding potential class
members. Thus they cannot invite them to join as plaintiffs. A class action serves judicial
economy and makes recovery economically feasible for class members who would otherwise
need to retain lawyers for individual actions seeking relatively small recoveries. See Robidoux,
987 F.2d at 936 (citing Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980».
A party seeking certification must show "there are questions of law or fact
common to the class." Fed. R. Civ. P. 23(a)(2). "That language is easy to misread, since '[a]ny
competently crafted class complaint literally raises common 'questions.'" Wal-Mart, 131 S. Ct.
at 2551 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84
N.Y.D. Law Rev. 97, 131-32 (2009». Class claims "must depend upon a common
contention ... capable of classwide resolution-which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one stroke."
Wal-Mart, 131 S. Ct. at 2551. "What matters to class certification ... is not the raising of
common 'questions' --even in droves-but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation. Dissimilarities within the
proposed class are what have the potential to impede the generation of common answers." Wal
Mart, 131 S. Ct. at 2551 (emphasis in original)(quoting Nagareda, supra, at 132).
Antalik has identified several common questions relevant to determining NYLL
violations, including: (1) whether Defendants derived an immediate advantage from interns'
work, (2) whether interns displaced regular employees, and (3) whether FEG's internship
program was for the benefit of interns. 79 Some evidence Antalik claims may answer these
questions is either individualized proof or of little evidentiary value. For example, there is
nothing facially unlawful about the FEG internship guidelines that might generate common
answers to drive the litigation. so She also claims FEG's internship request forms, which describe
various internship positions, constitute c1asswide evidence that interns provided an immediate
advantage to Defendants. A completed request form may be evidence that a particular internship
did not fall within the NYLL's "trainee" exception, but that is individualized proof. Only the
blank request form is common to the class, and it is not capable of resolving any question. S1
But Antalik also identifies evidence that is capable of answering common
questions on a classwide basis. Departments at FEG companies requested interns based on their
"needs," and they requested more when they were busier, the opposite of what one would expect
if interns provided little advantage to the company and sometimes impeded its work. S2 An
internal memo reports that because paid internships were eliminated and overtime pay and
temporary employees scaled back, "the size of our [unpaid] intern program more than
doubled."S3 Using unpaid interns to fill the interstices created by eliminating paid positions is a
clear violation of the NYLL.
The April 2010 release of the DOL Intern Fact Sheet did not represent a change in
applicable law. See, e.g., Reich, 992 F.2d at 1027 (The six DOL criteria "were derived almost
directly from [Walling] and have appeared in Wage and Hour Administrator opinions since at
79 See Mem. of Law in Support of PIs. ' Mot. for Class Certification and Court-Authorized Notice ("PIs.' Class Cert.
Br.") at 22-24 (Docket Entry #104).
80 See Bien Class Cert. Decl. Ex. 30.
81 See, e.g., Bien Class Cert. Dec!. Ex. 50.
82 Hoffman Tr. 31:17-33:3.
83 Bien Class Cert. Decl Ex. 38.
least 1967."). But the reactions to the fact sheet indicate FEG's internship overseers believed
"the regulations have been changed significantly creating a lot more risk going forward."s4
Antalik's supervisor, John Maybee, asked intern recruiter Aimee Hoffman "[w ]hy would an
office have an intern that provides no immediate advantage from said intern's activities?,,85
Hoffman responded, "That is the question! ... Ifwe give them work to benefit the company, we
really should pay them ... these DOL guidelines really make you think about whether it's worth
it or not to have [an unpaid intern].,,86
At least one FEG department bowed out of the internship program, believing it
could not comply with the DOL criteria. 87 Hoffman informed internship supervisors that
"internships will be changing considerably" and "we are tightening up our guidelines due to the
department of labor's definition of a [sic] unpaid intern.,,88 An internal memo in August 2008
states that "[s]tarting with the Fa112010 internship program ... Fox will only provide paid
internships unless a manager can comply with the six criteria provided by the DOL.,,89
Ultimately, FEG eliminated unpaid internships altogether because of ''the new regulation on
Evidence that interns were recruited to help with busy periods, that they displaced
paid employees, and that those who oversaw the internships did not believe they complied with
applicable law is evidence capable of generating common answers to questions ofliability.
Bien Class Cert. Decl. Ex. 46; see also Ex. 21 ("the 'suggested' guidelines and the fonner reality [sic] differ quite
drastically"); Ex. 24 (DOL factors "indicate that [interns'] duties and participation here may change
85 Bien Class Cert. Decl. Ex. 22.
86 Bien Class Cert. Decl. Ex. 22.
87 Bien Class Cert. Decl. Ex. 32.
88 Bien Class Cert. Decl. Ex. 26.
89 Bien Class Cert. Decl. Ex. 38.
90 Bien Class Cert. Decl. Ex. 27.
Typicality "requires that the claims ofthe class representative be typical of those
of the cla.c:;s, and 'is satisfied when each class member's claim arises from the same course of
events, and each class member makes similar legal arguments to prove the defendant's
liability.'" Marisol A. v. Giuliani, 126 F.3d 372,376 (2d Cir. 1997) (quoting In re Drexel
Burnham Lambert Grp., Inc., 960 F.2d 285,291 (2d Cir. 1992)). "The commonality and
typicality requirements tend to merge into one another." Marisol, 126 F.3d at 376. "Since the
claims only need to share the same essential characteristics, and need not be identical, the
typicality requirement is not highly demanding." Bolanos v. Norwegian Cruise Lines Ltd., 212
F.R.D. 144, 155 (S.D.N.V. 2002). "When it is alleged that the same unlawful conduct was
directed at or affected both the named plaintiff and the class sought to be represented, the
typicality requirement is usually met irrespective ofminor variations in the fact patterns
underlying individual claims." Robidoux, 987 F.2d at 936-37. Antalik participated in the same
internship program administered by the same set of recruiters as all class members, was
classified as an unpaid intern like all class members, and brings an NYLL wage claim like all
class members. She satisfies the typicality requirement.
Defendants argue vigorously that Antalik has not met this requirement because
she did not receive academic credit for her internship and Aimee Hoffman did not recruit her. 91
Receipt of academic credit is oflittle moment. A university's decision to grant academic credit
is not a determination that an unpaid internship complies with the NYLL. Universities may add
additional requirements or coursework for students receiving internship credit, but the focus of
the NYLL is on the requirements and training provided by the alleged employer.
Defs.' Class Cert Opp. Br. at 17-21.
That Hoffinan did not recruit Antalik does not defeat typicality because Antalik
still worked in the same FEG internship program supervised by Hoffman. The potential liability
arises from the operation of the program, not recruitment of the interns. And though Hoffman
did not hire Antalik, she required Antalik to send her the same paperwork as all other interns.92
Adequacy requires determining whether" 1) plaintiffs interests are antagonistic
to the interest of other members ofthe class and 2) plaintiffs attorneys are qualified, experienced
and able to conduct the litigation." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d
52,60 (2d Cir. 2000). "The fact that plaintiffs' claims are typical of the class is strong evidence
that their interests are not antagonistic to those of the class." Damassia v. Duane Reade, Inc.,
250 F.R.D. 152, 158 (S.D.N.Y. 2008). Defendants do not dispute either point. Antalik has no
known conflicts with the class. Her counsel are experienced in prosecuting employment class
actions. See Capsolas v. Pasta Res., Inc., No. 10 Civ. 5595 (RLE), 2012 WL 4760910, at *3
(S.D.N.Y. Oct. 5, 2012).
"Class-wide issues predominate if resolution of some of the legal or factual
questions that qualify each class member's case as a genuine controversy can be achieved
through generalized proof, and ifthese particular issues are more substantial than the issues
subject only to individualized proof." Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.
As discussed above, Antalik submitted generalized proof on the issue of
Defendants' liability. In an FLSA class, common questions ofliability predominate over
Bien SJ Opp. Decl. Ex. 63.
individual calculations of damages. See Torres v. Gristede's Operating Corp., No. 04 Civ. 3316
(PAC), 2006 WL 2819730, at *15 (S.D.N.Y. Sept. 29,2006); Noble v. 93 Univ. Place Corp., 224
F.R.D. 330, 345 (S.D.N.Y. 2004).
In determining whether "a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy," the Court must consider
(A) the class members' interests in individually controlling the prosecution or
defense of separate actions; (B) the extent and nature of any litigation concerning
the controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;
and (D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). Here, the relatively small recoveries available to individual plaintiffs
make a class action a more efficient mechanism. There are no known litigations raising the same
issues. This Court is a desirable forum because the proposed class worked in New York. And
there is no reason to expect manageability difficulties.
For the foregoing reasons, the Court certifies Antalik's proposed class under Rule
23(b)(3) with Antalik as class representative. The Court appoints Outten & Golden LLP as class
counsel under Rule 23(g).
Conditional Certification of Antalik's FLSA Claims
The FLSA allows plaintiffs to bring claims on behalf of "other employees
similarly situated," 29 U.S.C. § 216(b). "Although they are not required to do so by [the] FLSA,
district courts 'have discretion, in appropriate cases, to implement [§ 216(b)] ... by facilitating
notice to potential plaintiffs' of the pendency ofthe action and of their opportunity to opt-in as
represented plaintiffs." Myers, 624 F.3d at 554 (quoting Hoffinann-La Roche Inc. v. Sperling,
493 U.S. 165, 169 (1989)). To be entitled to notice, Plaintiffs must make a '''modest factual
showing' that they and potential opt-in plaintiffs 'together were victims of a common policy or
plan that violated the law.'" Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F.
Supp. 249, 261 (S.D.N.Y. 1997)).
Courts apply "heightened scrutiny" to motions for court-authorized notice made
after discovery. Torres, 2006 WL 2819730, at *9. For post-discovery motions, courts consider
whether the plaintiff and proposed class members are "similarly situated" by considering "(l)
disparate factual and employment settings of the individual plaintiffs; (2) the various defenses
available to defendant which appear to be individual to each plaintiff; and (3) fairness and
procedural considerations." Torres, 2006 WL 2819730, at *9 (internal alteration omitted)
(quoting Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (lOth Cir. 2001)).
Antalik moves for authorization to send notice of this action to
all individuals who had unpaid internships between September 28, 2008 and
September 1, 2010 with one or more of the following divisions ofFEG: Fox
Filmed Entertainment, Fox Group, Fox Networks Group, and Fox Interactive
Media (renamed News Corp. Digital Media).
As discussed above, Antalik has put forth generalized proof that interns were victims ofa
common policy to replace paid workers with unpaid interns. Though there are disparate factual
and employment settings, the common issues ofliability predominate over individual issues and
defenses. See Torres, 2006 WL 2819730, at *10. And the same fairness and procedural
considerations that make a class action a superior mechanism for the NYLL claims make a
collective action a superior mechanism for the FLSA claims.
For the foregoing reasons, Defendants' motion for summary judgment that
Gratts's CAUCL claim is time-barred is granted, and the remainder of its summary judgment
motion is denied. Glatt and Footman's motion for summary judgment that they are "employees"
covered by the FLSA and NYLL and that Searchlight is their joint employer is granted. Gratts's
motion for summary judgment is denied. Antalik's motions for class certification of her NYLL
claims and conditional certification of an FLSA collective action are granted and the law firm of
Outten & Golden LLP is appointed as class counsel. The Clerk of Court is directed to terminate
the motions pending at ECF Nos. 89, 93, and 103.
Dated: June 11,2013
New York, New York
WILLIAM H. PAULEY III
Adam T. Klein, Esq.
Rachel M. Bien, Esq.
Jennifer L. Liu, Esq.
Juno E. Turner, Esq.
Sally 1. Abrahamson, Esq.
Outten & Golden, LLP
3 Park Avenue, 29th Floor
New York, NY 10016
Counsel for Plaintiffs
Elise M. Bloom, Esq.
Amy F. Melican, Esq.
Proskauer Rose LLP
11 Times Square
New York, NY 10036
Counsel for Defendant
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