Judge: No Sanctions for Lawyers Suing Skadden, Staffing Firm

, The Am Law Daily

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Scales

Being the named plaintiff in a proposed class action brought over whether document reviewers deserve overtime pay hasn't stopped David Lola from applying for more contract attorney jobs.

In fact, the suit, filed last July in New York federal court, hasn't even stopped Lola from submitting an application to one of the parties he is suing, Tower Legal Staffing.

In a curious series of events, Lola applied Jan. 28 to work on a document review project run by Tower—and the attorneys representing Tower in the overtime suit immediately tried to use a paragraph included in Lola's resume to undermine the basis of that litigation.

In a so-called safe harbor letter sent Feb. 4 to Lola's attorney, D. Maimon Kirschenbaum, Tower's counsel at Ogletree, Deakins, Nash, Smoak & Stewart accused Lola and Kirschenbaum of filing the suit "in an attempt to harass Tower," pointing to what they say are "grossly inaccurate facts" contained in Lola's second amended complaint. The letter added that Ogletree planned to request monetary sanctions against Lola and Kirschenbaum if they did not voluntarily withdraw the suit.

In his suit, Lola argues that he, and other document reviewers, should qualify under federal labor laws for overtime pay because the work they do does not constitute the practice of law. Ogletree's letter insists that a resume entry detailing the very work at issue in his complaint—which he was hired by Tower to do for Skadden, Arps, Slate, Meagher & Flom—describes tasks that can only be considered the practice of law, including assisting with "quality control," "privilege logging," and "redactions."

Instead of waiting the typical 21 days after the filing of a safe harbor letter to bring the matter to a judge's attention, Kirschenbaum sent a letter to U.S. District Judge Richard Sullivan on Feb. 5 [PDF] alerting him to Ogletree's accusations. Ogletree filed its own letter to the court the next day reiterating its claims [PDF].

On Monday, Sullivan refused to allow Tower to request sanctions, saying in a court order [PDF] that "the court sees no obvious inconsistency between the resume entry and any of the allegations made in the first amended complaint or any of the representations plaintiffs made to the court during previous proceedings." Tower's arguments, Sullivan writes, "would not support a nonfrivolous motion for sanctions and are really addressed to the merits of the pending motion to dismiss."

Sullivan also denied a request by Kirschenbaum to amend the complaint a second time to include the extra categories of work found in Lola's resume, saying such a change is unnecessary.

Skadden, which has asked Sullivan to dismiss it as a defendant in the case, was not a party to the sanctions letter and declined to comment Tuesday. Ogletree shareholder Brian Gershengorn, who represents both Skadden and Tower in the suit, did not return a call for comment Tuesday. A Tower representative said the company could not comment.

Kirschenbaum said Tuesday he is "glad we were able to nip it in the bud." Lola, who has a solo practice in North Carolina, is licensed as a lawyer in California. He worked for Tower in 2012 as part of a multidistrict litigation in the Northern District of Ohio, according to court papers.

At a hearing in October held to discuss Skadden's request to file a motion to dismiss, Sullivan expressed skepticism that document review is so mundane it should not qualify as practicing law but asked both sides to fully brief a dismissal motion. Sullivan is yet to rule on the dismissal request.

Kirschenbaum is also involved in a similar case brought against Quinn Emanuel Urquart & Sullivan and legal staffing agency Providus that is pending in New York federal court. In December, a judge denied Quinn Emanuel's motion to dismiss the case, allowing it to proceed to "limited discovery."

What's being said

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    If eighteen jurisdictions assert that temporary document review is not the practice of law thereby frustrating the ability of the plaintiff and those similarly situated to earn a living in their craft then I think Tower may be the party filing frivolous and harassing motions.

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