The recent federal trial court ruling that unpaid interns for Fox Searchlight who worked on the movie Black Swan were indeed employees and therefore entitled to protections afforded under federal labor laws generated quite a stir when it was handed down in June 2013. Now in an unusual procedural move, Fox Searchlight is being permitted to appeal the adverse preliminary decision to the U.S. Court of Appeals for the Second Circuit while the matter is still pending in the trial court.
The appeal arises from two similar lawsuits involving unpaid interns — one against Fox Searchlight and one against Hearst. In September 2013, presiding U.S. District Judge William H. Pauley gave permission for the appeal to take place regarding his decision that the plaintiffs had stated a claim and could move forward with their suit. In November, a second appeal was taken regarding the court’s certification of the plaintiffs as a class under federal class action rules.
Interlocutory appeals — appeals taken before the final disposition of a case in trial court — are something of a rarity in federal practice and can usually only take place with the permission of the presiding judge. In the Second Circuit, a judge may certify such an appeal if these elements are met:
- The order involves a controlling issue of law in the case.
- There is substantial ground for difference of opinion on the decision.
- An immediate appeal may materially advance the ultimate termination of the litigation.
These cases were appropriate for interlocutory appeal because Judge Harold Bauer — a judge of the same court who is presiding over the Hearst case — reached a different conclusion on substantially the same issue. Employment attorneys throughout the Second Circuit should continue to monitor this case with interest.