Lola v. Skadden, Arps, Slate, Meagher & Flom LLP

620 F. App'x 37
CourtCourt of Appeals for the Second Circuit
DecidedJuly 23, 2015
DocketNo. 14-3845-cv
StatusPublished
Cited by8 cases

This text of 620 F. App'x 37 (Lola v. Skadden, Arps, Slate, Meagher & Flom LLP) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 F. App'x 37 (2d Cir. 2015).

Opinion

POOLER, Circuit Judge:

David Lola, on behalf of himself and all others similarly situated, appeals from the September 16, 2014 opinion and order of the United -States District Court for the Southern District of New York (Sullivan, J.) dismissing his putative collective action seeking damages from Skadden, Arps, Slate, Meagher & Flom LLP and Tower Legal Staffing, Inc. for violations of the overtime provision of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), arising out of Lola’s work as a contract attorney in North Carolina. We agree with the district court’s conclusion that: (1) state, not federal, law informs FLSA’s definition of “practice of law;” and (2) North Carolina, as the place where Lola worked and lived, has the greatest interest in this litigation, and thus we look to North Carolina law to determine if Lola was practicing law within the meaning of FLSA. However, we disagree with the district court’s conclusion, on a motion to dismiss, that by undertaking the document review Lola allegedly was hired to conduct, Lola was necessarily “practicing law” within the meaning of North Carolina law. We find that accepting the allegations as pleaded, Lola adequately alleged in his complaint that his document review was devoid of legal judgment such that he was not engaged in the practice of law, and remand for further proceedings.

BACKGROUND

Lola commenced this FLSA collective action against Skadden, Arps, Slate, Meagher & Flom LLP and Tower Legal Staffing Inc. In his first amended complaint, Lola alleged that Skadden, a Delaware limited liability partnership, is based in New York City. He alleges that Tower is a New York corporation that provides attorneys and paralegals on-a contract basis to various law firms and corporate law departments. Lola alleges that Skadden and Tower (together, “Defendants”) were joint employers within the meaning of FLSA.

Lola, a North Carolina resident, alleges that beginning in April 2012, he worked for Defendants for fifteen months in North Carolina. He conducted document review for Skadden in connection with a multi-district litigation pending in the United States District Court for the Northern District of Ohio. Lola is an attorney licensed to practice law in California, but he is not admitted to practice law in either [40]*40North Carolina or the Northern District of Ohio.

Lola alleges that his work was closely supervised by the Defendants, and his “entire responsibility ... consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b). marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.” App’x at 20 ¶ 28. Lola further alleges that Defendants provided him with the documents he reviewed, the search terms he was to use in connection with those documents, and the procedures he was to follow if the search terms appeared. Lola was paid $25 an hour for his work, and worked roughly forty-five to fifty-five hours a week. He was paid at the same rate for any hours he worked in excess of forty hours per week. Lola was told that he was an employee of Tower, but he was also told that he needed to follow any procedures set by Skadden attorneys, and he worked under the supervision of Skad-den attorneys. Other attorneys employed to work on the same project performed similar work and were likewise paid hourly rates that remained the same for any hours worked in excess of forty hours per week.

Defendants moved to dismiss the complaint, arguing that Lola was exempt from FLSA’s overtime rules because he was a licensed attorney engaged in the practice of law. The district court granted the motion, finding (1) state, not federal, standards applied in determining whether an attorney was practicing law under FLSA; (2) North Carolina had the greatest interest in the outcome of the litigation, thus North Carolina’s law should apply; and (3) Lola was engaged in the practice of law as defined by North Carolina law, and was therefore an .exempt employee under FLSA. Lola v. Skadden, Arps, Slate, Meagher & Flom, LLP, No. 13-cv-5008 (RJS), 2014 WL 4626228 (S.D.N.Y. Sept. 16, 2014). This appeal followed.

DISCUSSION

“We review de novo a district court’s dismissal of a complaint for failure to state a claim, accepting all factual allegations in the complaint as true and drawing all reasonable inferences in plaintiffs’ favor.” Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir.2013).

Pursuant to FLSA, employers must generally pay employees working overtime one and one-half times the regular rate of pay for any hours worked in excess of forty a week. 29 U.S.C. § 207(a)(1). However, employees, “employed in a bona fide ... professional capacity” are exempt from that requirement. Id. § 213(a)(1). The statute does not provide a definition of “professional capacity,” instead delegating the authority to do so to the Secretary of the Department of Labor (“DOL”), who defines “professional employees” to include those employees who are:

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week ...; and
(2) Whose primary duty is the performance of work:
(i) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of intellectual instruction; or
(ii) Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

29 C.F.R. § 541.300. These requirements, however, do not apply to attorneys engaged in the practice of law. 29 C.F.R. § 541.304(d) (“The requirements of [41]*41§ 541.300 and subpart G (salary requirements) of this part do not apply to the employees described in this section.”). Instead, attorneys fall under 29 C.F.R. § 541.304, which exempts from the overtime requirement:

Any employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof!.]

Id. § 541.304(a)(1). While it is undisputed that Lola is an attorney licensed to practice law in California, the parties dispute whether the document review he allegedly performed constitutes “engaging in the practice of law.”

I. “Practice of law.”

Lola urges us to fashion a new federal standard defining the “practice of law3’ within the meaning of Section 541.304. We decline to do so because we agree with the district court that the definition of “practice of law” is “primarily a matter of state concern.” Lola, 2014 WL 4626228, at *4 (citation omitted).

In Kamen v. Kemper Financial Services, Inc.,

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Bluebook (online)
620 F. App'x 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lola-v-skadden-arps-slate-meagher-flom-llp-ca2-2015.