Wang v. The Hearst Corporation
OPINION AND ORDER: re: 106 MOTION to Certify Class Pursuant to Fed. R. Civ. P. 23. filed by Matthew Jordan Wagster, Erin E. Spencer, Xuedan Wang, Stephanie Lauren Skorka, Caitlin Leszuk, Alexandra Rappaport, Sarah Wheels, Elizabeth Mancini. I have considered the parties' remaining arguments and find them to be without merit. For the foregoing reasons, Plaintiffs' motion for summary judgment regarding their status as "employees" under the FLSA and NYLL is DENIED. Pla intiffs' motion for class certification under the NYLL claims is also DENIED. The trial, which is scheduled to commence on May 28, 2013, is adjourned sine die. The Clerk of the Court is instructed to close the two motions (ECFNo. 105 & 106) and remove them from my docket. SO ORDERED.(Signed by Judge Harold Baer on 5/08/2013) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
XUEDAN WANG, on behalf of herself and all
others similarly situated,
- against THE HEARST CORPORATION,
12 CV 793 (HB)
OPINION & ORDER
Hon. HAROLD BAER, JR., District Judge:
Before the Court are Plaintiffs’ motions for partial summary judgment under Fed. R. Civ.
P. 56(a) and class certification pursuant to Fed. R. Civ. P. 23(a) and b(3). Plaintiffs previously
interned at various magazines owned by Defendant Hearst Corporation (“Defendant”) without
pay. Plaintiffs allege that Defendant violated the minimum wage requirements, overtime
provisions, and recordkeeping requirements in the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”) Art. 19 §§ 650 et seq., and seek
the certification of the following class for their claims under the NYLL: “All persons who have
worked as unpaid interns at Hearst Magazines in New York between February 1, 2006 and the
date of final judgment in this matter.” For the reasons set forth below, Plaintiffs’ motions for
partial summary judgment and class certification are DENIED.
Hearst is one of the world’s largest publishers of monthly magazines with 20 U.S.
magazine titles and several corporate departments. Pls.’ 56.1 ¶¶ 1, 5, 6. Hearst is also an
“employer” under the FLSA and NYLL and in addition, has had more than 3,000 interns over the
past six years. Pls.’ 56.1 ¶¶ 3, 17. The background is applicable to both motions, summary
judgment and class certification.
Since 2008, Hearst worked to reduce costs by decreasing its headcount and expenses at
the magazines as a response to the recession, and internal emails within Harper’s Bazaar and
Marie Claire instructed the staff to use interns rather than paid messengers to save costs. Pls.’
Facts laid out in this section are not disputed between the parties, unless noted otherwise.
56.1 ¶¶ 100, 104, 110. Discovery revealed that in 2008, 229 full-time employees were
eliminated: 109 left due to the closure of three magazines; another 88 positions that were
eliminated were middle to senior level employees; and 32 positions were entry-level. Def.’s 56.1
Hearst’s Human Resources Department is charged with making sure that the company’s
magazines and departments are in compliance with wage and hour laws, and a part of its mission
was to instruct all concerned to have the interns provide “school credit letters.” Pls.’ 56.1 ¶¶ 41,
66. The primary criteria relied upon by Hearst in concluding not to pay the interns was that for
the most part, they were in college and eligible to receive academic credit. Pls.’ 56.1 ¶ 70. This
policy has been in place at least since 2006. Pls.’ 56.1 ¶ 73. For the most part, all magazines
followed this policy. To provide some flavor, I describe below what some interns did during
Named Plaintiff Xuedan Wang worked as an intern five days a week, sometimes from 9
a.m. to 8 p.m., at the accessories department of Harper’s Bazaar Magazine from August 2011 to
December 2011. Pls.’ 56.1 ¶¶ 7, 117, 198. Wang’s duties included serving as a contact between
editors and public relations representatives, doing online research, cataloguing samples,
maintaining the accessories closet, and doing story boards. Pls.’ 56.1 ¶ 164.
Named Plaintiff Erin Spencer and Opt-in Plaintiff Sarah Wheels were interns at
Cosmopolitan Magazine, the former from June 1, 2010 to August 15, 2010, and the latter from
May 20, 2011 to August 10, 2011. Pls.’ 56.1 ¶¶ 8, 14. Spencer, as a bookings intern, worked
four days per week from 9 a.m. to 5 or 5:30 p.m., and her duties included organizing files,
holding casting calls, assisting at photo shoots, running errands, mailing magazine pages where
models appear to models’ agents, updating contact lists, and assisting in the fashion closet. Pls.’
56.1 ¶¶ 216, 222, 223, 231. Wheels, as an editorial intern, worked four days a week from 9:15
a.m. to 6 p.m., and her duties included responding to emails from readers, researching for
articles, surveying people on the street, transcribing interviews, compiling sales statistics,
locating articles in the magazine’s archive, writing content, and fact-checking articles. Pls.’ 56.1
¶¶ 365, 358.
Opt-in Plaintiffs Elizabeth Mancini and Caitlin Leszuk were interns at Marie Claire
Magazine, the former from January 2009 through June 2009 and the latter from January 11, 2010
to May 15, 2010. Pls.’ 56.1 ¶¶ 9, 12; Def.’s 56.1 ¶¶ 9, 12. As a fashion intern, Mancini worked
three to four days a week and arrived between 8:30 and 9 a.m. and left some time after 6 p.m.,
and her duties included receiving clothing ordered from photo shoots, unpacking the items and
checking to make sure that everything ordered was received and not broken, photographing the
items, filing invoices, and putting the items on garment racks. Pls.’ 56.1 ¶¶ 242, 270, 272.
Leszuk, as a sales intern, worked four days a week, from 9 a.m. to 6 p.m., and she spent the
majority of her time creating “edit credit” spreadsheets, which involved a line-by-line review of
Marie Claire and its competitors’ magazines. Pls.’ 56.1 ¶¶ 316, 323, 330.
Opt-in Plaintiff Matthew Wagster was an intern at Esquire from July 2009 to December
2009, where he worked three days a week from 9 a.m. to 6 p.m. Pls.’ 56.1 ¶¶ 10, 314. As an
intern in the publishing department, he ran errands, updated guest lists for events, helped prepare
for events, and worked at the doors at the events. Pls.’ 56.1 ¶ 305.
Opt-in Plaintiff Stephanie Skorka was an intern at Redbook from September 2009 to
December 2009. Pls.’ 56.1 ¶ 11. As a beauty intern, Skorka worked three days a week from 10
a.m. to 6 or 7 p.m., and her duties included managing the beauty closet, assisting with photo
shoots, coming up with beauty story ideas, writing posts for the website, attending beauty
product launches, contacting public relation firms, and selecting beauty products for potential
inclusion in the magazine. Pls.’ 56.1 ¶¶ 280-282, 290.
Opt-in Plaintiff Alexandra Rappaport was an intern at Seventeen from May 23, 2011 to
July 26, 2011. Pls.’ 56.1 ¶ 13. As an intern in the fashion closet, Rappaport worked four days a
week, from 9:20 a.m. to between 6:30 and 7:30 p.m., and her duties included organizing clothes,
hanging them on racks, packing them, picking up and returning clothing, organizing jewelry,
sending packages, copying, faxing, and responding to emails from designers. Pls.’ 56.1 ¶¶ 348,
Some interns, e.g. Spencer and Wheels, attended four, one-hour sessions of “Cosmo-U”
during which the editors at Cosmopolitan talked about their careers. Pls.’ 56.1 ¶¶ 232, 363.
Leszuk received at least one MediaMath class. Def.’s 56.1 ¶ D27. More importantly, all
Plaintiffs understood prior to their internship that the position was unpaid, Def.’s 56.1 ¶¶ D1,
D36, D92, D151, D192, D219, D245, and Hearst made it clear that there was little likelihood,
and certainly no guarantee, of a job at the end of their internship, Def.’s 56.1 ¶¶ D2, D37, D93,
D152, D193, D220, D246. The parties do not dispute that some of the duties performed by
Plaintiffs were performed by paid employees. See Pls.’ 56.1 ¶¶ 157, 286, 312, 327, 349.
However, the parties dispute the amount of supervision provided, Def.’s 56.1 ¶¶ D12-14, D48,
D85, D105, D114-116, D161, D201, D225, D254-256, as well as the benefits received and the
advantages that Hearst derived, Def.’s 56.1 ¶¶ D20-25, D29, D53-59, D75-77, D121-2, D170-3,
D187, D202-204, D228-230, D249-251, D260.
A. Motion for Partial Summary Judgment
Summary judgment is appropriate “if the movant 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). The movant bears the burden of establishing the absence of any genuine issue of material
fact, and all reasonable inferences must be drawn in the non-movant’s favor. Giannullo v. City of
New York, 322 F.3d 139, 140 (2d Cir. 2003). A material fact is one that “might affect the
outcome of the suit under the governing law,” and an issue of fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Holtz v. Rockefeller
& Co., 258 F.3d 62, 69 (2d Cir. 2001) (citation and quotation omitted).
1. Applicable Legal Standard
Plaintiffs move for partial summary judgment contending that they were “employees”
under the FLSA and NYLL.2 The FLSA3 defines “employee” as “any individual employed by
an employer” and the term “employ” is defined broadly to include “to suffer or permit to work.”
29 U.S.C. § 203(e)(1), (g); Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 66 (2d Cir. 2003).
Although the term “intern” is neither defined nor provided as an exception in the FLSA, the
parties do not dispute, and the Court agrees, that for this lawsuit, the Supreme Court in Walling
v. Portland Terminal Co. 330 U.S. 148 (1947) provides, for the most part, the governing case
law. In Walling, the Supreme Court found that trainees who worked for seven or eight days for
the defendant railroad without pay during “a course of practical training” were not “employees”
under the FLSA based on “the unchallenged findings  that the railroads receive no ‘immediate
advantage’ from any work done by the trainees.” 330 U.S. at 153. The Court reasoned that
“[t]he definition ‘suffer or permit to work’ was obviously not intended to stamp all persons as
Although Plaintiffs also moved for partial summary judgment with respect to Defendant’s willfulness and
Plaintiffs’ entitlement to liquidated damages, the Court denied that portion of the motion from the bench after the
oral argument on April 16, 2013. See ECF No. 143.
The courts in this circuit have held that the NYLL “embodies the same standard for employment as the FLSA.”
Cano v. DPNY, Inc., 287 F.R.D. 251, 260 (S.D.N.Y. 2012). The parties’ briefs accordingly focused on the FLSA,
Pls.’ Supp. 24; Def.’s Opp. 26, and the analysis below is based on the FLSA but is applicable to the NYLL.
employees who, without any express or implied compensation agreement, might work for their
own advantage on the premises of another.” Id. at 152.
The Department of Labor (“DOL”) published a fact sheet in April 2010, which puts some
meat on the Walling bones. U.S. Dep’t of Labor, “Fact Sheet # 71: Internship Programs Under
The Fair Labor Standards Act,” available at http://www.dol.gov/whd/regs/compliance/
whdfs71.pdf (“DOL Fact Sheet #71”). In order to overcome the employment label, the
internship, according to the DOL, must meet all of the following six factors:
(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 environment;
(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
(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 a job at the conclusion of the internship; and
(6) The employer and the intern understand that the intern is not entitled to wages for the
time spent in the internship.
While the weight to be given to these factors is far from crystal clear, the Fact Sheet adds to the
confusion with the introductory language: “whether an internship or training program meets this
exclusion depends upon all of the facts and circumstances of each such program.” Id.
Not surprisingly, the parties disagree as to the appropriate test for defining an “employee”
under Walling. Plaintiffs urge the Court to adopt a standard of “immediate advantage,”
contending that the outcome in Walling “would have been different if the railroads had obtained
an immediate advantage from the trainees . . . . When an employer obtains a direct or immediate
benefit from work, if has ‘suffered or permitted’ work and must compensate for it.” Pls.’ Supp.
26. In the alternative, they argue that Hearst “must meet all of the factors” in the Department of
Labor’s (“DOL”) six-factor test and that it has failed to do so. Pls.’ Supp. 29. On the other hand,
Hearst urges the Court to adopt a “balancing of the benefits test” which looks to the totality of
circumstances to evaluate the “economic reality” of the relationship. Def.’s Opp. 28. As for the
DOL’s six-factor test, Hearst contends that no judicial deference is required and is critical of
Plaintiffs’ effort to apply it as “a rigid checklist.” Id. at 31.
I agree with Hearst that the Supreme Court in Walling looked to the totality of
circumstances of the training program to determine whether the plaintiffs were “employees”
under the FLSA. Although the Supreme Court held in Walling that the men in that case were not
employees because the defendant railroads received “no immediate advantage” from the trainees,
330 U.S. at 153, it does not logically follow that the reverse is true, i.e. that the presence of an
“immediate advantage” alone creates an employment relationship under the FLSA. Moreover,
Plaintiffs’ reading of Walling as establishing the test for an employer-employee relationship
solely based on “direct or immediate benefit” is misplaced. There is no one-dimensional test;
rather, the prevailing view is the totality of circumstances test. See Tony & Susan Alamo Found.
v. Sec’y of Labor, 471 U.S. 290, 295 (1985). To make the cheese more binding, the Second
Circuit in a decision only last year echoed that view when it wrote, “whether an employeremployee relationship exists does not depend on isolated factors but rather upon the
circumstances of the whole activity,” and specifically noted that a key consideration in the
analysis depended on “who is the primary recipient of benefits from the relationship . . . .” Velez
v. Sanchez, 693 F.3d 308, 326, 330 (2d Cir. 2012).
All that said, I am also of the mind that the six factors in Fact Sheet #71 ought not be
disregarded; rather, it suggests a framework for an analysis of the employee-employer
relationship. After all, they emanate from the agency that administers the laws under which
Plaintiffs brought this lawsuit. This position finds support in United States v. Mead Corp., where
we read “[A]n agency’s interpretation may merit some deference whatever its form, given the
specialized experience and broader investigations and information and given the value of
uniformity in its administrative and judicial understandings of what a national law requires.” 533
U.S. 218, 234 (2001) (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)). The cases in this
district that have considered the six-factor test conclude that the Fact Sheet is “a reasonable
application of the FLSA and . . . entitled to deference by this court.” Archie v. Grand Cent.
P’ship, Inc., 997 F. Supp. 504, 531 (S.D.N.Y. 1998) (Sotomayor, J.); see also Brown v. New
York City Dep’t of Educ., No. 12 Civ. 35, 2012 WL 6186496, at *8 (S.D.N.Y. Dec. 12, 2012)
(referring to DOL Fact Sheet #71, along with agency regulation, to distinguish between services
provided to for-profit private sector employers and public agencies).4
Although Defendants rely on a Sixth Circuit case that denied any deference on the ground that the test was too
rigid, the same case still noted that “the six factors may be helpful in guiding that inquiry.” Solis v. Laurelbrook
2. Dispute Regarding Material Facts
Plaintiffs seek partial summary judgment based on the “immediate advantage” standard,
while Hearst bases its argument on the totality of circumstances standard. This alone creates a
genuine issue of fact sufficient to deny summary judgment. Further, to the extent that Plaintiffs
seek partial summary judgment based on the DOL six-factor test, that branch of the motion too
must be denied. A genuine dispute and material issues of fact exists, at least with respect to the
first, second, third, and fourth factors. This is not a winner-take-all test, and Hearst has shown
with respect to each Plaintiff that there was some educational training, some benefit to individual
interns, some supervision, and some impediment to Hearst’s regular operations, etc., which, if
viewed in the light most favorable to the non-moving party, as it must be, supports the view that
a jury could return a verdict in Hearst’s favor.
B. Motion for Class Certification
Plaintiffs also move the Court to certify the following class pursuant to Fed. R. Civ. P.
23(a) and 23(b)(3) for the claims under the NYLL: “All persons who have worked as unpaid
interns at Hearst Magazines in New York between February 1, 2006 and the date of final
judgment in this matter.” Pls.’ Supp. 40. “The party seeking class certification bears the burden
of establishing by a preponderance of the evidence that each of Rule 23’s requirements has been
met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (citation omitted). Under the
threshold requirements of Rule 23(a), the party seeking class certification must show that: (1) the
class is sufficiently numerous; (2) there are questions of law or fact common to the class; (3) the
class representative has claims and defenses that are typical of the class; and (4) the
representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P.
23(a). In addition, Rule 23(b)(3) requires the court to examine whether “the questions of law or
fact common to class members predominate over any questions affecting only individual
members, and that a class action is superior” to individual litigation. Fed. R. Civ. P. 23(b)(3).
Here, the parties do not dispute, and I agree, that Plaintiffs meet three out of four requirements
under Rule 23(a): numerosity, typicality, and adequacy. However, the parties disagree about
whether commonality and predominance requirements are satisfied.
Sanitarium & Sch., Inc., 642 F.3d 518, 525 (6th Cir. 2011); see also Reich v. Parker Fire Prot. Dist., 992 F.2d 1023,
1027 (10th Cir. 1993) (“We are satisfied that the six criteria are relevant but not conclusive . . . .”). There is also
contrary persuasive authority at the circuit level; the Eleventh Circuit affords deference to the six-factor test. Kaplan
v. Code Blue Billing & Coding, Inc., No. 12-12011, 2013 WL 238120, at *2 (11th Cir. Jan. 22, 2013).
1. Rule 23(a): Numerosity, Typicality, and Adequacy
Numerosity is satisfied under the 40-member presumption adopted by the courts of this
Circuit, see Shahriar v. Smith & Wollensky Rest. Group, Inc., 659 F.3d 234, 252 (2d Cir. 2011),
as there are more than 3,000 members of the proposed class, Bien Decl. ¶ 13. Typicality is also
satisfied, since Plaintiffs, like the class they seek to represent, worked for Hearst as unpaid
interns, and all of them are suing under the same legal theory that they were “employees” under
the NYLL. See Robidoux v. Celani, 987 F.2d 931, 936–37 (2d Cir. 1993) (“Rule 23(a)(3)’s
typicality requirement 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.”). The adequacy requirement too is satisfied given the quality of the representation by
Plaintiffs’ counsel and Plaintiffs’ participation in this action without any known conflicts. See
Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir. 2007)
(defining the adequacy requirement as “inquiry as to whether: 1) plaintiff’s interests are
antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified,
experienced and able to conduct the litigation”) .
2. Rule 23(a): Commonality
Fed. R. Civ. P 23(a)(2) is satisfied when “there are questions of law or fact common to
the class.” The Supreme Court has recently held that the party seeking class certification must
raise more than a litany of common questions; rather, “[w]hat matters to class certification . . . is
. . . the capacity of a classwide proceeding to generate common answers apt to drive the
resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
(quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132
Plaintiffs point out that Hearst has a “centralized policy” of classifying all interns as
unpaid, non-employees and propose five common questions “that will generate a common
answer:” (1) whether Hearst derived an immediate advantage from the interns’ work; (2) whether
paid workers were displaced; (3) whether an educational experience was provided; (4) whether
the members derived benefit; and (5) whether the economic reality of the relationship was one of
employment. Pls.’ Reply 16; Pls.’ Supp. 42-45. According to Plaintiffs, the common proof
would consist of testimony by select interns and supervisors, Hearst’s job postings and
evaluation forms, and intern manuals and guidelines from individual magazines. Pls.’ Supp. 43.
Hearst responds that the right legal standard involves an examination of individual factors that
generate no common class-wide answers, and as in Dukes, “‘significant proof’ of a general
policy that resulted in a class-wide violation” is absent. Def.’s 35. The cornerstone of Hearst’s
argument is that its 20 magazines have “no uniform policies or practices among magazines
prescribing what interns must do.” Id.
Here, while a close question, the commonality requirement is not satisfied because
Plaintiffs cannot show anything more than a uniform policy of unpaid internship. In Dukes, the
Supreme Court noted that the plaintiff failed to provide evidence of a “general policy of
discrimination” that would constitute “significant proof” abridging the gap between an individual
and a class claim. 131 S. Ct. at 2554. The evidence of a corporate-wide policy of classifying the
proposed class members as unpaid interns is insufficient, as that policy alone cannot answer the
liability question, which turns on what the interns did and what benefits they received during
their internship. Although Plaintiffs have raised many common questions, under Dukes, this
Court must “consider dissimilarities . . . in order to determine (as Rule 23(a)(2) requires) whether
there is even a single common question.” 131 S. Ct. at 2556 (alterations and internal quotation
marks omitted). The duties performed by Lead and Opt-In Plaintiffs—to say nothing of the
variation within each magazine and corporate department—clearly suggest that internships
varied greatly from magazine to magazine. As it is Plaintiffs’ burden to demonstrate by
preponderance of evidence that this litigation will “generate common answers apt to drive the
resolution,” 131 S. Ct. at 2551, the Court is required to appraise such dissimilarities in its
commonality analysis. Plaintiffs’ vague advice that the Court consider instead “the nature of the
work that interns performed,” Oral Arg. Tr. 11:8-13:1, eschews, rather than addresses, the
glaring problem here, that the Court cannot resort to any common proof to determine the very
“nature” of the interns’ work.
Certainly, even after Dukes, courts of this district have routinely found commonality in
analogous misclassification cases under the NYLL. See Morris v. Affinity Health Plan, Inc., 859
F. Supp. 2d 611, 616 (S.D.N.Y. 2012) (“The weight of authority rejects the argument that Dukes
bars certification in wage and hour cases.”) (citing cases). However, those cases are very
different. Compare Meyer v. U.S. Tennis Ass’n, No. 11 Civ. 6268, 2013 WL 1777556, at *6
(S.D.N.Y. Apr. 25, 2013) (finding commonality because the proposed class members “carry out
their duties for the [defendant] pursuant to a uniform policy, uniform training, uniform job
description, and uniform procedures”), and Jacob v. Duane Reade, Inc., No. 11 Civ. 0160, 2013
WL 1137024, at *6 (S.D.N.Y. Mar. 20, 2013) (finding commonality not just based on “the
uniform classification of [the plaintiffs as Assistant Store Managers (“ASM”)],” but also “the
uniform description of ASMs' duties”), with White v. W. Beef Properties, Inc., No. 07 Civ. 2345,
2011 WL 6140512, at *5 (E.D.N.Y. Dec. 9, 2011) (denying commonality based on uniform
classification alone based because the “evidence span[ned] nine different departments—Meat,
Produce, Frozen, Fish, Grocery, Bakery, Deli, Dairy and Receiving—each of which has a
distinct set of concerns and job duties”). The plaintiffs in Meyer and Jacob were able to show a
company-wide policy regarding employee duties in addition to a company-wide policy regarding
a certain employee classification, whereas here, as in White, there is nothing more than a
corporate-wide policy of classifying the proposed class members as unpaid interns based on
academic credit letters. To mix a metaphor, while half a loaf is better than none, Plaintiffs’
argument here just doesn’t cut the mustard.
3. Rule 23(b)(3): Predominance and Superiority
Having failed to show sufficient evidence to support commonality, Plaintiffs have an
even higher hurdle in their effort to meet the predominance and superiority requirements of Fed.
R. Civ. P. 23(b)(3). “Rule 23(b)(3)’s predominance criterion is even more demanding than Rule
23(a),” and the courts are instructed to “take a close look at whether common questions
predominate over individual ones.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013)
(citation and internal quotation marks omitted). The Second Circuit instructs that requirement is
satisfied “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 if these particular
issues are more substantial than the issues subject only to individualized proof.” Moore v.
PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002). In an analogous misclassification case,
the Second Circuit held that while the defendant’s “blanket [overtime] exemption policy”
regarding the proposed class members is “in a general way relevant to the inquiry here, the
existence of a blanket exemption policy, standing alone, is not itself determinative of the main
concern in the predominance inquiry: the balance between individual and common issues.”
Myers v. Hertz Corp., 624 F.3d 537, 549 (2d Cir. 2010). The Second Circuit reasoned that “[i]n
possible contrast to a uniform corporate policy detailing employees’ job duties, the fact of
common exemption does not establish whether all plaintiffs were actually entitled to overtime
pay or whether they were covered by the applicable administrative regulations defining FLSA’s
As explained above, Plaintiffs fail to satisfy the predominance requirement because the
record shows that there is no uniform policy among the magazines with respect to the contents of
the internship, including interns’ duties, their training, and supervision, such that the analysis of
four out of six DOL factors would have to be individualized. Plaintiffs argue that the Court
should overlook such deficiency in the record because the Court can make a determination at the
general level as to the nature of the interns’ duties, as well as the benefits, training, and
supervision that they received, and suggest that the Court do so based on the testimony of select
interns and supervisors, various job postings and evaluation forms, and intern manuals and
guidelines of individual magazines. Pls.’ Reply 17-20. Unfortunately, this is precisely the reason
which, when examined closely, directly undermines the predominance prerequisites. For
instance, there is a myriad of internship postings, manuals, and guidelines that set out different
duties and training for each magazine; indeed, this is so even for the specific department within a
single magazine. See, e.g., Bien Decl. Ex. 167 (Cosmopolitan Fashion Intern Guide); Ex. 177
(Elle Accessories Intern Survival Guide); Ex. 169 (Esquire Fashion Closet Guide); Ex. 55
(Harper’s Bazaar Fashion Editorial Internship Guidelines); Ex. 205 (Harper’s Bazaar Intern
Guide); Ex. 93 (Marie Claire Fashion Intern Handbook); Ex. 201 (Redbook Magazine Fashion
Closet Intern Guide); Ex. 196 (Town & Country Intern Guide); Ex. 72 (Seventeen Beauty Intern
Guide); Ex. 219 (Cosmopolitan Beauty Internship); Ex. 219 (Good Housekeeping Beauty
Internship); Ex. 222 (Harper’s Bazaar Beauty Internship); Ex. 216 (Town & Country Beauty
Internship); Ex. 63 (Seventeen Editorial Intern Manual); Ex. 198 (Esquire Interns: A
Guidebook); Ex. 95 (Marie Claire Features Intern Handbook); Ex. 202 (Redbook Features Intern
Handbook); Ex. 209 (Cosmopolitan Editorial Internship); Ex 230 (Country Living Editorial
Internship); Ex. 231 (Elle Features Internship); Ex. 224 (Harper’s Bazaar Features Internship);
Ex. 234 (Marie Claire Editorial Internship); Ex. 240 (Woman’s Day Editorial Internship); Ex. 94
(Bazaar Photo & Bookings Internship); Ex. 204 (Marie Claire Photo Intern Guide); Ex. 200
(Seventeen Photo Intern Manual); Ex. 257 (Cosmopolitan Bookings Intern); Ex. 258 (Seventeen
Magazine Bookings Internship); Ex. 212 (Esquire Art Internship); Ex. 91 (Esquire Sales and
Marketing Internship); Ex. 178 (Marie Claire Marketing Internship Overview and
Responsibilities); Ex. 247 (Hearst Communications Internship); Ex. 248 (Hearst Marketing
To make liability determinations, the Court would have to evaluate all of such
individualized evidence, in addition to individualized testimony about the level of supervision
and respective benefits, against the six factors suggested by the DOL. Because the content of the
internships, which is the core of the dispute, cannot be evaluated based on common proof,
individual issues clearly overwhelm the common ones here. This case is therefore different from
the post-Dukes misclassification cases. See Meyer, 2013 WL 1777556, at *11-12 (finding
predominance because the class members’ “primary duties” are governed by “Official’s Code of
Conduct” and their experience varied “at the margins”); Jacob, 2013 WL 1137024, at *12-15
(finding predominance “given [the defendant’s] uniform  job description and consistent
approach to training”). See also White, 2011 WL 6140512, at *5 (denying class certification
because there is no “standardized company-wide description of responsibilities”).
I further note that the above analysis on predominance does not even take into
consideration any problems related to damages calculation. See Comcast Corp., 133 S. Ct. at
1433 (holding that the Circuit Court erred in its predominance analysis by failing to consider
whether “questions of individual damage calculations will inevitably overwhelm questions
common to the class”). Although Plaintiffs argue that Comcast is limited to anti-trust cases, the
majority opinion explicitly rejected that very proposition. Id. at 1433 (“This case  turns on the
straightforward application of class-certification principles . . . .”). Indeed, although one could
certainly quibble with the significance of a grant, vacate, and remand (“GVR”) order from the
Supreme Court, one must pause at least for a moment when one sees that the Supreme Court, “in
light of Comcast,” has issued an order vacating and remanding a Seventh Circuit’s decision
affirming the district court’s certification in an overtime misclassification case. RBS Citizens,
N.A. v. Ross, 133 S. Ct. 1722 (2013).
The superiority analysis involves a consideration of four nonexclusive factors: (1) the
interest of the class members in controlling the litigation of separate actions; (2) the extent and
nature of any litigation concerning the controversy already begun by or against class members;
(3) the desirability or undesirability of concentrating the litigation of the claims in the particular
forum; and (4) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). While
there is undeniable efficiency that stems from consolidating and concentrating the litigation of
similar claims, the individualized nature of proofs in this case signals that case management
would be difficult, if not near impossible, and separate actions may be more appropriate.
Furthermore, given that the predominance requirement cannot be satisfied, Rule 23(b)(3)
remains an insurmountable barrier to Plaintiffs.
I have considered the parties' remaining arguments and find them to be without merit.
For the foregoing reasons, Plaintiffs' motion for summary judgment rcgarding their status as
"employees" under the FLSA and NYLL is DENIED. Plaintiffs' motion for class certification
under the NYLL claims is also DENIED. The trial, which is scheduled to commence on May 28,
2013, is adjourned sine die. The Clerk of the Court is instructed to close the two motions (ECF
No. 105 & 106) and remove them from my docket.
New York, New York
Hon. Harold Baer, Jr.
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