The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:
Before the Court are Plaintiffs' motions for partial summary judgment under Fed. R. Civ. P. 56(a) and class certification pursuant to Fed. R. Civ. P. 23(a) and b(3). Plaintiffs previously interned at various magazines owned by Defendant Hearst Corporation ("Defendant") without pay. Plaintiffs allege that Defendant violated the minimum wage requirements, overtime provisions, and recordkeeping requirements in the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the New York Labor Law ("NYLL") Art. 19 §§ 650 et seq., and seek the certification of the following class for their claims under the NYLL: "All persons who have worked as unpaid interns at Hearst Magazines in New York between February 1, 2006 and the date of final judgment in this matter." For the reasons set forth below, Plaintiffs' motions for partial summary judgment and class certification are DENIED.
Hearst is one of the world's largest publishers of monthly magazines with 20 U.S. magazine titles and several corporate departments. Pls.' 56.1 ¶¶ 1, 5, 6. Hearst is also an "employer" under the FLSA and NYLL and in addition, has had more than 3,000 interns over the past six years. Pls.' 56.1 ¶¶ 3, 17. The background is applicable to both motions, summary judgment and class certification.
Since 2008, Hearst worked to reduce costs by decreasing its headcount and expenses at the magazines as a response to the recession, and internal emails within Harper's Bazaar and Marie Claire instructed the staff to use interns rather than paid messengers to save costs. Pls.' 56.1 ¶¶ 100, 104, 110. Discovery revealed that in 2008, 229 full-time employees were eliminated: 109 left due to the closure of three magazines; another 88 positions that were eliminated were middle to senior level employees; and 32 positions were entry-level. Def.'s 56.1 ¶¶ D274-8.
Hearst's Human Resources Department is charged with making sure that the company's magazines and departments are in compliance with wage and hour laws, and a part of its mission was to instruct all concerned to have the interns provide "school credit letters." Pls.' 56.1 ¶¶ 41, 66. The primary criteria relied upon by Hearst in concluding not to pay the interns was that for the most part, they were in college and eligible to receive academic credit. Pls.' 56.1 ¶ 70. This policy has been in place at least since 2006. Pls.' 56.1 ¶ 73. For the most part, all magazines followed this policy. To provide some flavor, I describe below what some interns did during their internship.
Named Plaintiff Xuedan Wang worked as an intern five days a week, sometimes from 9 a.m. to 8 p.m., at the accessories department of Harper's Bazaar Magazine from August 2011 to December 2011. Pls.' 56.1 ¶¶ 7, 117, 198. Wang's duties included serving as a contact between editors and public relations representatives, doing online research, cataloguing samples, maintaining the accessories closet, and doing story boards. Pls.' 56.1 ¶ 164.
Named Plaintiff Erin Spencer and Opt-in Plaintiff Sarah Wheels were interns at Cosmopolitan Magazine, the former from June 1, 2010 to August 15, 2010, and the latter from May 20, 2011 to August 10, 2011. Pls.' 56.1 ¶¶ 8, 14. Spencer, as a bookings intern, worked four days per week from 9 a.m. to 5 or 5:30 p.m., and her duties included organizing files, holding casting calls, assisting at photo shoots, running errands, mailing magazine pages where models appear to models' agents, updating contact lists, and assisting in the fashion closet. Pls.' 56.1 ¶¶ 216, 222, 223, 231. Wheels, as an editorial intern, worked four days a week from 9:15 a.m. to 6 p.m., and her duties included responding to emails from readers, researching for articles, surveying people on the street, transcribing interviews, compiling sales statistics, locating articles in the magazine's archive, writing content, and fact-checking articles. Pls.' 56.1 ¶¶ 365, 358.
Opt-in Plaintiffs Elizabeth Mancini and Caitlin Leszuk were interns at Marie Claire Magazine, the former from January 2009 through June 2009 and the latter from January 11, 2010 to May 15, 2010. Pls.' 56.1 ¶¶ 9, 12; Def.'s 56.1 ¶¶ 9, 12. As a fashion intern, Mancini worked three to four days a week and arrived between 8:30 and 9 a.m. and left some time after 6 p.m., and her duties included receiving clothing ordered from photo shoots, unpacking the items and checking to make sure that everything ordered was received and not broken, photographing the items, filing invoices, and putting the items on garment racks. Pls.' 56.1 ¶¶ 242, 270, 272. Leszuk, as a sales intern, worked four days a week, from 9 a.m. to 6 p.m., and she spent the majority of her time creating "edit credit" spreadsheets, which involved a line-by-line review of Marie Claire and its competitors' magazines. Pls.' 56.1 ¶¶ 316, 323, 330.
Opt-in Plaintiff Matthew Wagster was an intern at Esquire from July 2009 to December 2009, where he worked three days a week from 9 a.m. to 6 p.m. Pls.' 56.1 ¶¶ 10, 314. As an intern in the publishing department, he ran errands, updated guest lists for events, helped prepare for events, and worked at the doors at the events. Pls.' 56.1 ¶ 305.
Opt-in Plaintiff Stephanie Skorka was an intern at Redbook from September 2009 to December 2009. Pls.' 56.1 ¶ 11. As a beauty intern, Skorka worked three days a week from 10 a.m. to 6 or 7 p.m., and her duties included managing the beauty closet, assisting with photo shoots, coming up with beauty story ideas, writing posts for the website, attending beauty product launches, contacting public relation firms, and selecting beauty products for potential inclusion in the magazine. Pls.' 56.1 ¶¶ 280-282, 290.
Opt-in Plaintiff Alexandra Rappaport was an intern at Seventeen from May 23, 2011 to July 26, 2011. Pls.' 56.1 ¶ 13. As an intern in the fashion closet, Rappaport worked four days a week, from 9:20 a.m. to between 6:30 and 7:30 p.m., and her duties included organizing clothes, hanging them on racks, packing them, picking up and returning clothing, organizing jewelry, sending packages, copying, faxing, and responding to emails from designers. Pls.' 56.1 ¶¶ 348, 351.
Some interns, e.g. Spencer and Wheels, attended four, one-hour sessions of "Cosmo-U" during which the editors at Cosmopolitan talked about their careers. Pls.' 56.1 ¶¶ 232, 363. Leszuk received at least one MediaMath class. Def.'s 56.1 ¶ D27. More importantly, all Plaintiffs understood prior to their internship that the position was unpaid, Def.'s 56.1 ¶¶ D1, D36, D92, D151, D192, D219, D245, and Hearst made it clear that there was little likelihood, and certainly no guarantee, of a job at the end of their internship, Def.'s 56.1 ¶¶ D2, D37, D93, D152, D193, D220, D246. The parties do not dispute that some of the duties performed by Plaintiffs were performed by paid employees. See Pls.' 56.1 ¶¶ 157, 286, 312, 327, 349.
However, the parties dispute the amount of supervision provided, Def.'s 56.1 ¶¶ D12-14, D48, D85, D105, D114-116, D161, D201, D225, D254-256, as well as the benefits received and the advantages that Hearst derived, Def.'s 56.1 ¶¶ D20-25, D29, ...