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2nd Circ. Won't Stay Class Notice In Fox Intern Wage Suit

Law360—Ben James

The Second Circuit denied Fox Entertainment Group Inc.'s bid Wednesday to block notices apprising former unpaid interns of a pending wage suit from going out while the appeals court resolves Fox's challenge to a June decision that granted class and collective action certification.   

A three-judge panel issued a 1-page order denying the Dec. 23 motion for a stay from Fox Entertainment and fellow defendant-appellant Fox Searchlight Pictures Inc. to stop notice from going out while Fox's appeal of the certification decision is pending.

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The Fox lawsuit dates back to September 2011, when named plaintiffs Eric Glatt and Alexander Footman, who worked on the set of “Black Swan,” claimed Fox Searchlight was essentially using the free labor provided by the interns to keep costs down.

U.S. District Judge William Pauley subsequently expanded the scope of the litigation, granting a request to include as a plaintiff corporate intern Eden Antalik.

The June 11 order up for review in the Fox case granted a motion for class and collective certification from Antalik, who worked in Fox Searchlight's publicity department in 2009. The same decision granted summary judgment to Glatt and Footman on the issue of whether they were employees under the FLSA and New York Labor Law.

When the Second Circuit agreed to hear Fox's appeal in November, it also agreed to take an appeal from former Hearst Corp. unpaid interns who were denied class certification in May.

Fox said that the question of what the proper standard was for ascertaining whether interns qualified as employees was an issue of first impression for the appeals court, and that the judges in the Fox and Hearst cases had utilized different standards and reached opposite conclusions.

In a Jan. 8 filing opposing Fox's stay bid, the interns said Fox couldn't satisfy the four criteria for justifying a stay, the first of which calls for a showing that the company is likely to succeed in overturning class and collective certification.

The test for determining whether a worker is properly classified as an intern or is an employee owed wages that was applied by the district court — and endorsed by the U.S. Department of Labor — was the right one, and the trial court correctly found that it was more practical that the "primary beneficiary" test proposed by Fox, the plaintiff-appellees said. 

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The plaintiffs are represented by Adam T. Klein, Rachel M. Bien and Juno Turner of Outten & Golden LLP.

The case is Glatt v. Fox Searchlight Pictures Inc., case number 13-4481, in the U.S. Court of Appeals for the Second Circuit.