Quinn Emanuel Urquhart & Sullivan LLP has lost its attempt to appeal a New York federal judge’s refusal to dismiss a putative class action over the law firm’s alleged failure to pay overtime to temporary attorneys.
U.S. District Judge Ronnie Abrams refused on Dec. 20 to grant the law firm’s motion to have a decision denying its bid to dismiss the suit certified for interlocutory appeal. The judge said there were no exceptional circumstances that justified an expedited appeal.
“In its December 11, 2013 order, the court ruled that it was not clear from the face of the complaint that defendants were entitled to dismissal of the action based on their affirmative defense,” the order states. “Recognizing that the question of whether plaintiff was engaged in the practice of law under [the Federal Code of Regulations] was potentially dispositive, however, the court ordered the parties to conduct limited discovery on that single issue and noted that it would entertain summary judgment motions after that limited discovery. There is simply nothing about this case at this time that presents such ‘exceptional circumstances’ that ‘justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.”
Quinn Emanuel and another defendant, Document Technologies, had also asked the court to stay the would-be class and collective action pending a determination from the Second Circuit. An immediate appeal would have allowed the Second Circuit to promptly weigh in on the Fair Labor Standards Act’s overtime exemption for professional employees, and on whether the defendants’ proposed test for ascertaining if that standard has been met should be adopted as a matter of law.
The law firm argued that although the New York federal court had announced one test, another district court recently adopted a test akin to the defendants’, pointing to a Nov. 13 ruling by a Texas federal court as well as a pending suit against Skadden Arps. The Plaintiff, Henig, who said he was hired to review documents for Quinn Emanuel for about six months in 2012, filed suit in March 2013. In light of the “extremely routine nature” of his duties, he was not exempt under federal or state overtime laws, he argued.
In addition to Quinn Emanuel, Henig targeted legal staffing outfit Providus New York LLC. Document Technologies acquired Providus in 2012.
Under the FLSA, attorneys practicing law are normally considered professionals not entitled to overtime pay, and Quinn Emanuel argued that the case should be dismissed.
But Judge Abrams said in her Dec. 11 ruling that it was unclear that Henig was exempt from overtime as Quinn Emanuel had contended, and that she would not throw out his claims without more study.
The judge indicated that the case would turn on whether Henig was practicing as an attorney.
Most courts have considered when someone is not practicing as an attorney — usually in the context of cases against nonlawyers who may have breached laws that bar laypersons from pretending to be attorneys — but what it means to practice law in this context seems to be a question of first impression, the judge said.