Just under two months after they took their first swipe at getting the judgment against them and a class action in the Black Swan interns’ case reversed, Fox Searchlight and the Fox Entertainment Group have hit back again. In filings late last week, Fox asked a federal judge for formal permission for an “immediate appeal” to his potentially industry game changing June 11 ruling that unpaid interns on the 2010 Darren Aronofsky-directed film were really employees. “The Order meets all of the statutory requirements for certification, and the circumstances of this case are very much in keeping with other cases in which courts — including this Court — have granted certification for immediate, interlocutory appeal. The Court should therefore grant Defendants’ motion and allow the Second Circuit to provide much-needed guidance on the issues raised in the Order,” said the memo (read it here) filed on August 23 in U.S. District Court in New York. If certified by Judge William Paley III, the appeal would head to the Second Circuit. Primary plaintiffs Alex Footman and Eric Glatt first launched their civil action case back in September 2011 on behalf of themselves and more than 100 Fox Searchlight interns. Since the June 11 ruling, a series of suits against NBCU, Conde Nast and Warner Music have hit the courts from others who claim that they too were performing employee duties for no wages. Hearst Corp is also weaving through the legal system with an intern lawsuit of its own that has become a factor in the Black Swan case as definitions are sought by the defendants.
Fox is also seeking a short stay in all proceedings on the matter until the Second Circuit and the District Court decide on a trio of other matters in the case. Specifically, Fox is asking the Appeals Court to define what exactly is the legal standard for determining if an intern is actually an employee and entitled to wages under the Federal Labor Standards Act and NY labor law. The company also has asked for additional definitions of the issue of what standard of FLSA certification should be used in such a class action. “The stay is necessary because each of the three petitions – two of which are currently pending before the Second Circuit and one of which is pending before this Court – raises novel issues on which courts in this Circuit have disagreed and the Second Circuit has not yet ruled,” noted Fox’s other filing (read it here) last week. Adam Klein, Rachel Bien and Elizabeth Wagoner of Outten & Golden LLP are representing the Black Swan interns. Fox Searchlight and Fox Entertainment Group are represented by Elise Bloom and Amy Melican of NYC firm Proskauer Rose LLP.