The Second Circuit should reject Fox Entertainment Group Inc.'s bid to block notice of a wage class action from going out to former unpaid interns because Fox hasn't made a "strong showing" that its pending challenge to class certification will succeed, the plaintiffs said Monday.
Fox Entertainment and fellow defendant-appellant Fox Searchlight Pictures Inc. are appealing a June 11 decision that certified a state law class and Fair Labor Standards Act collective made up of unpaid interns who allegedly should have gotten wages.
Fox, who got a green light to appeal the class and collective certification order in November, asked the Second Circuit to stay the issuance of notice until its appeal was resolved, calling the lower court's refusal to put notice on hold "prejudicial and wrong" and noting that the underlying proceedings had been otherwise stayed.
But the former interns argued in Monday's opposition filing that 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.
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"Fox has not made a strong showing that its version of the applicable legal test will prevail on appeal," the opposition papers said.
The DOL test used by the lower court is the one most other courts have used, the plaintiffs added.
And while Fox hasn't demonstrated that it will suffer irreparable harm if notice goes out to class members and potential FLSA opt-ins, more delay would significantly hurt class members, the interns argued. Putting notice on hold could make it harder to find class and collective members and might result in the accidental destruction of evidence, Monday's filing said.
The lower court found on "four separate occasions" that notice should go out promptly and that a stay isn't warranted, according to the opposition brief.
"Fox has already succeeded in delaying the notice for months by its successive requests for a stay, among other tactics," the plaintiffs said.
In its Dec. 23 motion for a stay, Fox said that there was a high likelihood that it would prevail on appeal, and that the appeals court would probably hold that class certification was improper under Rule 23.
"In all likelihood, this court's decision will necessitate substantial changes to the class definition and to its membership — if the class survives at all," the motion said.
When the Second Circuit agreed to hear Fox's interlocutory appeal in November, it also agreed to take an appeal from former Hearst Corp. unpaid interns who were denied class certification in May.
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The case is Glatt v. Fox Searchlight Pictures Inc., case number 13-4481, in the U.S. Court of Appeals for the Second Circuit.