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Kadden v. VisuaLex, LLC

United States District Court, S.D. New York

September 24, 2012

Adina KADDEN, Plaintiff,
VISUALEX, LLC, Defendant.

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Mark D. Risk, Esq., Mark Risk, P.C., New York, NY, for Adina Kadden.

Traycee Ellen Klein, Esq., Margaret Casey Thering, Esq., Epstein Becker & Green, P.C., New York, NY, for VisuaLex, LLC.


SHIRA A. SCHEINDLIN, District Judge.


Adina Kadden brings this lawsuit against her former employer VisuaLex, LLC, pursuant to the Fair Labor Standards Act (" FLSA" ) and New York Labor Law (" NYLL" ).[1] Kadden seeks to recover unpaid overtime in the form of one and one-half times her hourly rate for all hours per week worked above forty, plus interest. She also seeks liquidated damages in an equal amount under the FLSA, twenty-five percent liquidated damages under the NYLL, attorneys' fees and costs.[2]

VisuaLex argues that Kadden was exempt from the FLSA's overtime requirements under three categories of exemption: the creative professional exemption; the learned professional exemption; and the administrative employee exemption, or a combination thereof.[3] It argues that if Kadden was misclassified, it was done in good faith and liquidated damages are not appropriate. Furthermore, VisuaLex argues that Kadden is only entitled to damages in the form of one-half hourly wage for hours worked over forty because Kadden's salary of $75,000 was meant to cover all hours worked, regardless of whether she worked more or less than forty hours per week.[4]

I held a bench trial from August 13, 2012 to August 15, 2012. The parties made post-trial submissions on September 10, 2012.[5] Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, I make

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the following findings of fact and conclusions of law. In reaching these findings and conclusions, I heard the evidence, observed the demeanor of the witnesses, and considered the arguments and submissions of counsel.


A. Background of the Parties

1. Adina Kadden

In 1998 Kadden earned a Bachelor of Science from Villa Julie College in Maryland, and in 2001 she earned a Juris Doctor from Benjamin N. Cardozo School of Law in New York.[6]

From June 2008 through March 24, 2011 Kadden was employed by VisuaLex as a Litigation Graphics Consultant (" graphics consultant" ).[7]

2. VisuaLex, LLC

VisuaLex is a New York limited liability company, with its principal place of business at 225 Ashford Avenue, Dobbs Ferry, New York 10522, in Westchester County.[8]

VisuaLex was started in 1999 as a " litigation support company" by Lillian Romano, president and graphics consultant, Brian Fennessey, vice president and creative director, and investment partner Joseph Romano.[9] VisuaLex provides graphics and trial support services to law firms in connection with large litigations.[10] VisuaLex generates its revenues from time recorded by consultants and other employees and billed, in Lillian Romano's discretion, to clients.[11] It has an annual business volume in excess of $500,000.[12]

B. The Role of Litigation Graphics Consultant at VisuaLex

1. Primary Duties

Lillian Romano testified that the " primary job of the consultants [at VisuaLex] is to review and analyze case materials and to create and develop the most effective visual strategy to help the trial teams communicate their case to the trier of fact." [13]

VisuaLex's job description for graphics consultants (the " Job Description" ) listed as " primary responsibilities" : (1) " [r]ead case materials and work with attorneys to identify key case concepts; " (2) " [c]ollaborate with our team of designers and animators to execute high quality, error-free graphics; " (3) " [s]chedule trial technicians and courtroom equipment; " and (4) " [p]roject management and client interaction." [14]

At least two consultants are assigned to every case, one as the " lead consultant" and one as the " back up consultant." [15] The lead consultant, " communicate[s] to

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the client what we have decided is the best way to present something or communicate whether we don't agree with what they are asking us to do or if they have suggestions of what needs to be done. It's basically the person who is the face." [16]

Kadden was identified as the lead on " a couple" cases.[17] This occurred " when Lillian was not available and there was sort of one chunk of time where Lillian was kind of in and out of the office a bit and [Kadden] stepped in." [18] Romano testified that she generally occupied the lead role because " I've been doing this for 25 years. These clients know me." [19] In those limited cases where Kadden was the lead, Romano was copied on every email regarding edits.[20] Kadden was not generally included in emails between Romano and clients.[21]

When VisuaLex gets a new job, the graphics consultants begin by reading background materials, for example, expert reports, pleadings, depositions and medical records.[22] The consultants identify information that " need[s] to be supported visually" and " come up with creative ways, strategic ways of not only how to depict the information in individual graphics, but also ... creating a visual framework that is going to help the trial team advance their case." [23]

Next, the consultant obtains all necessary information from the client to create the exhibit and fills out a " chart type form" identifying the case number and " when you think its going to be used." [24] The consultant creates a title for the exhibit " which is a really important thing." [25] Kadden created some " new graphics" when serving as backup consultant which she testified meant that " [a]n envelope had to be created for each graphic, a cover sheet had to be written up ... [a] title would have to be written on it." [26] However, the new graphics were " not necessarily [her] concept." [27]

Once the consultant has the materials for the graphic from the client, the next step is a briefing session with the art director to explain " not only the overall strategy ... of the case, but how this exhibit fits in and what the takeaway from this exhibit needs to be" and " where the

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necessary information is stored." [28] Kadden testified that she was generally not involved in meetings with clients or the briefing with the art director. [29]

After the briefing with the art director, " the art director goes back and either he creates the layout or he directs the designers to create the layout the way he wants it to be created." [30] The art director then reviews it from " an aesthetic standpoint." [31] Then the production coordinator checks to ensure that " all the things that need to go out in this presentation" are there and proofs for " blatant errors." [32]

According to Kadden, the exhibit " would [then] go to whoever was serving as the backup ... who would then review it, write in any changes ... [t]hen it would eventually work its way up to the lead, who would then decide, ... do I want to make those changes or not." [33]

Kadden explained that " as the second or the backup, [she] would come in more on the revision phase of things" with most of her time " spent on the proofing phase." [34] Kadden's replacement, Heather Moran, testified that her principal job was to " proofread revisions that would come in, write up small revisions here and there based off of phone calls or emails" and sometimes " explain the revisions to the designers." [35] All of her client contact was in connection with revisions.[36]

Romano explained that when consultants proof, they should be " evaluating the layout for the takeaway." [37] " If the consultants all agree, yes, this is great, then we send the file, we tell the production coordinator ... and he sends it to the client for review." [38] If the client has revisions, " the process starts all over again." [39] As a consultant, " [y]ou never just blindly follow. If you have questions, concerns, recommendations, you always let them know." [40]

Kadden also proofed PowerPoint presentations, which the production manager created once the graphics were finalized so that the client could view the work.[41] This work, in contrast to proofing and ...

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