A Manhattan federal judge has denied Bloomberg LP’s motion to stay a class action lawsuit as the business media giant lobbies the U.S. Court of Appeals for permission to appeal orders certifying two classes in the case.
U.S. District Judge Denise Cote of the Southern District of New York wrote that Bloomberg alleges only a “vague reputational harm,” and not irreparable harm, if the class action suit, focused on analytics representatives’ unpaid overtime, were to proceed to the class-notice stage while the company petitions the Second Circuit to hear its appeal.
Moreover, in arguing another motion-to-stay factor to Cote—that Bloomberg would have a likelihood of success on the merits in having the classes decertified—the judge wrote that one of Bloomberg’s central arguments seemed tenuous at best.
She said that Bloomberg would have trouble convincing the Second Circuit to decertify the classes based on the argument that allowing the classes to remain would threaten to end the litigation without reaching its merits.
“Bloomberg alleges that class certification threatens to terminate the litigation because it brings its potential liability to over $193 million,” Cote wrote, adding that the company “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,” she wrote, and said that “without a stronger showing, this argument would require the issuance of a stay in virtually every certification of a class action.”
Cote issued her denial of the stay motion on Tuesday. Bloomberg is awaiting an answer from the Second Circuit on its petition to appeal the class certification rulings by Cote. A settlement conference is scheduled for Nov. 30 in the lawsuit, and the plaintiffs have agreed to allow a stay until that point—but barring a settlement, not beyond that date, Cote noted.
In September, Cote certified a class of hundreds of New York-based Bloomberg LP analytics representatives, who help clients navigate their Bloomberg Terminals, in a federal action aimed at recovering unpaid overtime. That class’ putative membership includes more than 1,000 current and former employees.
Later in September, she certified a second class, in a separate order, that consists of hundreds of California-based analytics representatives.
Cote focused much of her certification decisions on how the plaintiffs had met Federal Rule of Civil Procedure 23(a)’s “predominance” requirement, which mandates that a class action predominantly involve questions of law or fact common to the class.
A name plaintiff in the lawsuit, Eric Roseman, first filed a putative class complaint in April 2014 in the Southern District. In August 2016, plaintiffs in the case lodged a motion seeking class certification for all representatives in the New York analytics department “who were not paid time and one-half for hours over 40 worked in one or more weeks at any time within the six years preceding the filing of this complaint and the date of final judgment in this matter.”
According to Cote, the analytics representatives help Bloomberg assist clients in operating the well-known, and worldwide, Bloomberg Terminals, which have been reported to cost well over $20,000 per year. The terminal is a computer software system that allows clients to access and analyze financial data, Cote said, and it has more than 30,000 different functions. When clients need help navigating the terminal’s functions, they open a chat window linking them to an analytics representative, Cote also said. There allegedly is “limited opportunity for advancement within the analytics department,” she noted, and Bloomberg estimates that in New York there have been nearly 1,300 employees in the department since April 2008.
The action was reassigned to Cote on Aug. 15, she noted. Roseman and two other named plaintiffs, on behalf of the class, allege violations of the Fair Labor Standards Act, New York Labor Law Section 650 et seq., and the California Labor Code.
In the September New York-class decision, Cote addressed Bloomberg’s argument that the work performed by the representatives will qualify as exempted “administrative capacity” work that is not overtime eligible. She said that the application of such an exemption would “hinge” on elements that require a determination of an employee’s “primary duty,” and that because the jobs of the purported class members all fell under such a primary duty, sufficient common questions would predominate.
In her decision Tuesday, Cote also knocked down Bloomberg’s contention that allowing a stay would be in the public interest, because it would avoid an issuing by the plaintiffs of a notice sent out to potential class members.
“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,” she wrote, adding, “No compelling interest weighs in favor of issuing a stay.
“Indeed, ‘the public interest favors a speedy trial and resolution of this matter,’” she said, citing In re Electronic Books Antitrust Litigation, 2014 WL 1641699.
“The Court of Appeals frowns upon the use of Rule 23(f) as a vehicle to delay proceedings in the district court,” she added.
Artemio Guerra of Getman, Sweeney & Dunn in Kingston, representing the plaintiffs, said in an email: “I think that by denying Bloomberg’s request for a stay Judge Cote made it very clear that Bloomberg’s petition to appeal is not likely to succeed. Certification of the classes was proper. The primary duty of workers is consistent across the class.”
Matthew Lampe, a partner at Jones Day in Manhattan, represented the defendants. He couldn’t be reached for comment.