SDNY.jpgAuthored by Robert Whitman 

The lawsuit against Hearst Corporation on behalf of interns who claim they should have been paid as employees got a jolt of life last week when the judge supervising the case certified the class certification issue for an immediate appeal (See here). 

As we previously reported (here), Judge Harold Baer denied class certification in the case on May 8, finding insufficient evidence of a uniform policy regarding treatment of unpaid interns among the 20 magazines where they worked.

Now, Judge Baer is allowing the plaintiffs to ask the Second Circuit to decide the class certification issue on an interim basis, before the case proceeds to final judgment.  In granting that request – which Hearst did not oppose – he made three findings consistent with the rule authorizing interlocutory appeals:

  • The certification issue involves a controlling question of law – While the judge’s ruling is somewhat unclear on this point, it seemed to hold that there is an important legal question about whether a court should consider the “totality of circumstances” affecting the unpaid interns in deciding whether to certify a class.  Most notably, however, the court stated that immediate Second Circuit guidance on the issue “will significantly affect the conduct of other lawsuits now pending in the district courts which have relied on other legal standards or the same legal standard, but have come out differently,” specifically citing the decision in Glatt v. Fox Searchlight Pictures, in which Judge William Pauley granted certification (and partial summary judgment) in a case involving interns on the production of the film Black Swan (See previous post here).
  • There is substantial ground for difference of opinion on the legal issue – Again referencing Glatt, Judge Baer stated that the legal questions “are difficult and . . . clearly provide fodder for different opinions and have spawned them.”
  • An appeal would facilitate the ultimate termination of the litigation – As Judge Baer said, “If the Second Circuit provides clarification or a different legal standard, it will guide a resolution of the outstanding issues pending in the Circuit.”

As we suspected, the Glatt decision has emboldened the plaintiffs’ bar to file new internship cases.  Since the decision was issued in June, cases have been filed in New York federal courts against Conde Nast, Warner Music, Gawker Media and others.  What seemed like a passing fad only a couple of months ago may be a long-term trend after all.