Judge Skeptical of Overtime Pay Suit Against Skadden

, The Litigation Daily

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This story first appeared in The Am Law Daily.

A New York federal judge overseeing a wage-and-hour lawsuit brought against Skadden, Arps, Slate, Meagher & Flom expressed skepticism Thursday at the plaintiff's assertion that document review is so mundane it should not qualify as practicing law.

The suit, a proposed class action filed in July against Skadden and Tower Legal Staffing, claims contract attorney David Lola deserves overtime pay for his work on a document review undertaken in 2012 as part of a multidistrict litigation in the Northern District of Ohio. In making the argument, Lola, represented by plaintiffs lawyer D. Maimon Kirschenbaum, insists he had to follow "extremely detailed protocols" that did not allow or require him to "exercise any judgment."

Under the federal Fair Labor Standards Act, practicing law is considered exempt from overtime laws. Kirschenbaum, who has sued two other law firms for similar alleged FLSA violations, argues document review should fall outside the definition of practicing law and qualify employees for time-and-a-half pay on all hours worked each week above 40.

During Thursday's hearing, held to discuss Skadden's request to file a motion to dismiss, U.S. District Judge Richard Sullivan questioned both sides on the two main aspects of the case: whether document review is practicing law, and whether Skadden and Tower qualify as joint employers under FLSA.

By the end of the proceedings, Sullivan made his opinion on the first question clear, saying that while he would like a motion to dismiss to be fully briefed, document review "strikes me as the practice of law, even if it's not the most glamorous."

Sullivan, who noted several times that the case presents "an interesting issue," pressed Kirschenbaum on how Lola's work differs from that of many first- and second-year associates tasked with a heavy volume of document review. Kirschenbaum argued that regular associates, unlike contract attorneys, could be called away at any time to help draft a memo or work on more substantive assignments. "A first-year could make photocopies, but that doesn't change that he was hired as a lawyer," Kirschenbaum said.

Sullivan seemed wary of Kirschenbaum's distinction and expressed concern about putting the court in a position where it would have to decide what percentage of a lawyer's work qualifies as the practice of law. If that became the case, Sullivan said, "There might be full-fledged associates at Skadden who do 90 percent document review and who want overtime on their $160,000-a-year salary."

Skadden's counsel, Brian Gershengorn of Ogletree, Deakins, Nash, Smoak & Stewart, stressed Sullivan's point that "this is what first- and second-year attorneys do." When presented with a hypothetical about a licensed attorney tasked with photocopying for 12 hours each day, Gershengorn agreed with Sullivan that in that situation, overtime could be warranted, but that the circumstances differ in this case.

In a letter to the court last month, Skadden detailed why it believes "Plaintiff's assertion that a lawyer's review of documents does not constitute the practice of law is devoid of any basis in law or common sense." Skadden argues in the letter that it is clear Lola's work "involved determining whether or not a document he reviewed should be produced, and whether certain information he reviewed was privileged and should be redacted," which the firm says demonstrates practicing law.

Speaking after the hearing, Kirschenbaum, a name partner at Joseph & Kirschenbaum said he understood why Sullivan's gut reaction was to liken Lola's work to that of a first-year associate, but added, "I think we can convince him to look at what [Lola's] actual duties are day-to-day" and distinguish it from practicing law.

Gershengorn, who also represents Tower Legal Staffing, had no comment following the proceedings. Skadden's motion to dismiss is due December 6.

U.S. District Judge Ronnie Abrams in New York heard arguments last week in a nearly identical case Kirschenbaum brought earlier this year against Quinn Emanuel Urquart & Sullivan and legal staffing agency Providus. Abrams has yet to rule on Quinn Emanuel's motion to dismiss the suit.

Kirschenbaum— who has a history of suing high-profile restaurants in wage-and-hour disputes—represented another contract attorney in a 2010 suit brought against Labaton Sucharow. That suit, settled months after it was filed for undisclosed terms, also claimed the attorney deserved overtime pay.

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