Michael v. Bloomberg, L.P.

Filing 335

MEMORANDUM OPINION AND ORDER......Bloombergs October 11 motion for stay pending appeal is denied. (Signed by Judge Denise L. Cote on 11/7/2017) (gr)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------ERIC MICHAEL ROSEMAN, ALEXANDER LEE,
and WILLIAM VAN VLEET, individually
and on behalf of others similarly
situated,

X
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:
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Plaintiffs,
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-v:
:
BLOOMBERG L.P.,
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Defendant.
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14cv2657 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On September 21 and 25, 2017, two classes were certified in
connection with the claims brought by Bloomberg’s Analytics
Representatives for a violation of New York Labor Law § 650 et
seq. (“NYLL”) and the California Labor Code 8 Cal. Code Regs. §
11040(1)(A) (“CLC”).

Roseman v. Bloomberg, 14cv2657 (DLC), 2017

WL 4217150 (S.D.N.Y. Sept. 21, 2017); Roseman v. Bloomberg,
14cv2657 (DLC), 2017 WL 4280602 (S.D.N.Y. Sept 25, 2017).

On

October 5, Bloomberg filed a Fed. R. Civ. P. 23(f) petition to
the Second Circuit for permission to appeal the Orders granting
certification of the two classes.
On October 11, Bloomberg filed a motion to stay the
issuance of class notice pending the resolution of Bloomberg’s
petition to the Second Circuit and, in the event the petition
were granted, the Second Circuit’s decision regarding the

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appeal.

The motion was fully submitted on October 20.

The

plaintiffs consent to a stay pending a settlement conference to
be held on November 30, 2017, but oppose any stay beyond that
date if no settlement is reached on November 30.
The standard for evaluating a stay application is well
established:
(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where
the public interest lies.
S.E.C. v. Citigroup Global Markets Inc., 673 F.3d 158, 162 (2d
Cir. 2012) (per curiam) (citation omitted) (mandamus petition).
See also In re Electronic Books Antitrust Litigation, 2014 WL
1641699, at *4 (S.D.N.Y. Apr. 24, 2014) (applying standard to
Rule 23(f) petition).

The Second Circuit “applie[s] these same

factors in considering whether to vacate a stay.”

In re World

Trade Center Disaster Site Litigation, 503 F.3d 167, 170 (2d
Cir. 2007).

These factors operate as a “sliding scale” where

“[t]he necessary ‘level’ or ‘degree’ of possibility of success
will vary according to the court's assessment of the other stay
factors ... [and][t]he probability of success that must be
demonstrated is inversely proportional to the amount of
irreparable injury plaintiff will suffer absent the stay.”
Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir. 2006) (citation
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omitted).

A stay is an “intrusion into the ordinary processes

of administration and judicial review, and accordingly is not a
matter of right.”

Nken v. Holder, 556 U.S. 418, 427 (2009)

(citation omitted).
Bloomberg has made no persuasive showing of harm or of a
likelihood of success on the merits, and any stay beyond
November 30 would injure plaintiffs and the public interest.
Accordingly, the request for a stay pending review of
Bloomberg’s Rule 23(f) petition is denied.

I. Irreparable Injury and Harm to Plaintiffs
To demonstrate ongoing irreparable harm such that a stay is
proper, a party must show that it will suffer injury which
cannot be remedied absent a stay.

In re Electronic Books

Antitrust Litigation, 2014 WL 1641699, at *4.

The party seeking

the stay has the burden of showing “injury that is not remote or
speculative but actual and imminent, and for which a monetary
award cannot be adequate compensation.”

Dexter 345 Inc. v.

Cuomo, 663 F.3d 59, 63 (2d Cir. 2011) (citation omitted).
Bloomberg has failed to meet its burden here.
Bloomberg alleges a vague “reputational harm” but does not
support a contention that such harm is irreparable and more than
speculative.

Bloomberg has not asserted that the harm it would

suffer is any different from the reputational harm suffered by
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other defendants in class action suits where notices are issued.
It has not pointed to specific language in the notice that would
cause it particular harm.
Bloomberg also alleges that issuance of the class notice
could harm potential class members because it will confuse them.
Bloomberg argues that confusion inevitably arises when any Rule
23(f) petition is pending, especially if a class notice is
eventually retracted or corrected.

The plaintiffs dispute this

alleged harm, arguing that a class notice will educate class
members.

The injury to the class identified by Bloomberg is

entirely speculative, and does not warrant a stay.

II. Success on the Merits
A strong showing of a likelihood of success on the merits,
requires “more than a mere possibility of relief.”
Holder, 556 U.S. 418, 434 (2009) (citation omitted).

Nken v.
To

demonstrate a strong showing that it is likely to succeed on the
merits, Bloomberg has the burden of demonstrating “a substantial
possibility, although less than a likelihood, of success” on
appeal.

Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002)

(citation omitted).

Success on appeal requires both that

Bloomberg’s petition for interlocutory appeal is granted and
that, upon review, the Court of Appeals decertifies the class.

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Bloomberg has not established a substantial possibility of
either.
The Second Circuit will only grant leave to appeal where a
petitioner demonstrates either “(1) that the certification order
will effectively terminate the litigation and there has been a
substantial showing that the district court's decision is
questionable, or (2) that the certification order implicates a
legal question about which there is a compelling need for
immediate resolution.”

Hevesi v. Citigroup Inc., 366 F.3d 70,

76 (2d Cir. 2004)(citation omitted).

The first category of

cases “comprises the so-called ‘death knell’ cases” where class
certification “forces the defendants to settle.”

Sumitomo

Copper Litigation v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134,
138 (2d Cir. 2001).

The second category are cases in which

certification “implicates an unresolved legal issue concerning
class actions”; “the more fundamental the [legal] question and
the greater the likelihood that it will escape effective
disposition at the end of the case,” the more likely the Court
of Appeals is to permit an interlocutory appeal.
omitted).

Id. (citation

The Court of Appeals has emphasized that “the

standards of Rule 23(f) will rarely be met.”

Id. at 140.

Bloomberg’s petition does not meet either ground for
interlocutory appeal.

First, Bloomberg alleges that class

certification threatens to terminate the litigation because it
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brings its potential liability to over $193 million.

It asserts

that this potential exposure will “pressure” Bloomberg to settle
the action before trial on the merits.

But, Bloomberg does not

suggest that a judgment in this amount would seriously threaten
Bloomberg’s viability as a company.

Cf. Chamberlan v. Ford

Motor Co., 402 F.3d 952, 960 (9th Cir. 2005) (noting, in “death
knell” analysis, that “the potential recovery here may be
unpleasant to a behemoth company, but it is hardly terminal” to
defendant Ford Motor Co.); Waste Mgmt. Holdings, Inc. v.
Mowbray, 208 F.3d 288, 294 (1st Cir. 2000) (“[W]hat might be
‘ruinous' [liability] to a company of modest size might be
merely unpleasant to a behemoth.”).

Without a stronger showing,

this argument would require the issuance of a stay in virtually
every certification of a class action.
Second, Bloomberg has not adequately shown that there
exists “a legal question about which there is a compelling need
for immediate resolution.”
omitted).

Hevesi, 366 F.3d at 76 (citation

Bloomberg fails to even address this analysis in its

submissions and has not identified any serious question of
unsettled law presented by Bloomberg’s petition.
Finally, Bloomberg has not shown that it is likely that the
Court of Appeals will decertify the class.

Bloomberg states

that the Court “erred in concluding Analytics Representative all
have the same primary duty.”

Certification of the classes was
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proper because generalized evidence may be used to establish a
primary duty common to the proposed classes.

As the September

21 decision held, “the primary duty of the class members can be
determined through generalized proof because that primary duty
is consistent across the class.”

Roseman, 2017 WL 4217150, at

*7.
Bloomberg further argues that even if the class members
share a primary duty, the members may nevertheless be exempt
because of the other requirements of the “administrative
exemption” to the NYLL, see 12 NYCRR § 142-3.2, and the CLC, see
8 Cal. Code Regs.

§ 11040(1)(A).

But, the plaintiffs showed

“that the issues pertinent to Bloomberg's affirmative defense
can be resolved through common proof at trial, and that those
issues will far outweigh any individualized determinations that
must be made, such as the calculation of the precise number of
overtime hours each employee worked.”
at *7.

Roseman, 2017 WL 4217150,

Because generalized proof can be used at trial to argue

whether the exception applies or not, certification is
appropriate.

The certification decision did not decide whether

or not Analytics Representatives are exempt from the state law
requirements for overtime pay.

It only decided whether the

plaintiffs had carried their burden of showing that the issue
could be resolved using generalized proof.

Bloomberg thus fails

to show that it is likely to succeed in its petition.
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III. The Public Interest
Bloomberg makes general arguments about the public interest
without explaining why the public interest will be furthered in
delaying the notice process in this particular case.
compelling interest weighs in favor of issuing a stay.

No
Indeed,

“the public interest favors a speedy trial and resolution of
this matter.”

In re Electronic Books Antitrust Litigation, 2014

WL 1641699, at *12.

The Court of Appeals frowns upon the use of

Rule 23(f) as “a vehicle to delay proceedings in the district
court.”

Sumitomo, 262 F.3d at 140.

CONCLUSION
Bloomberg’s October 11 motion for stay pending appeal is
denied.
Dated:

New York, New York
November 7, 2017
__________________________________
DENISE COTE
United States District Judge

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