Three years ago, the Supreme Court found in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011) that courts “frequently” will need to look to the merits in determining whether certification is appropriate, particularly where the issues of the merits and certification may overlap. Despite this pronouncement, plaintiffs often assert that courts should not consider the merits in making the certification determination. In some instances, however, irrespective of certification, problems as to the merits will dispose of the case entirely, as two cases decided the same day by the United States District Court for the Southern District of New York demonstrate. Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Case No. 13-cv-5008 (RJS) (S.D.N.Y. Sept. 16, 2014); Saleem v. Corporate Transportation Group, Ltd., Case No. 12-CV-8450 (JMF) (S.D.N.Y. September 16, 2014). The two cases look very different in many respects, but both failed on dispositive motions because the named plaintiffs, or perhaps the class as a whole, had no claim.
In the first case, Lola, the putative class members were licensed attorneys doing work on a Skadden, Arps project through a legal staffing agency. While the lead plaintiff worked for the agency, apparently (and successfully) to garner greater publicity, he named the Skadden, Arps firm first as the lead defendant. The crux of his claim was that although he was an attorney, the work he did was basic document review that did not require any special legal judgment or discretion. As a result, he contended, he should have been paid overtime for hours worked in excess of 40 hours per week. Rather than engage in class discovery, the defendants moved to dismiss the claims under Rule 12(b)(6). They asserted that the work was exempt under the professional exemption regardless of whether it was “glamorous”, “high-profile”, or neither. The court found that the matter of whether the work was professional or not turned on state law, and as the work was performed in North Carolina, that state’s law controlled. While the court ultimately concluded that the work could have been done by a non-lawyer under a lawyer’s supervision, that did not change the fact that document review (as opposed to mere photocopying or collating) was a legal service. Without ever having to address whether a class was warranted, the court concluded that the work described in the complaint was within the scope of the practice of law and dismissed the case. Continue Reading