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Roseman v. Bloomberg, L.P.

United States District Court, S.D. New York

November 7, 2017

ERIC MICHAEL ROSEMAN, ALEXANDER LEE, and WILLIAM VAN VLEET, individually and on behalf of others similarly situated, Plaintiffs,
v.
BLOOMBERG L.P., Defendant.

          MEMORANDUM OPINION AND ORDER

          DENISE COTE, United States District Judge

         On September 21 and 25, 2017, two classes were certified in connection with the claims brought by Bloomberg's Analytics Representatives for a violation of New York Labor Law § 650 et seq. (“NYLL”) and the California Labor Code 8 Cal. Code Regs. § 11040(1)(A) (“CLC”). Roseman v. Bloomberg, 14cv2657 (DLC), 2017 WL 4217150 (S.D.N.Y. Sept. 21, 2017); Roseman v. Bloomberg, 14cv2657 (DLC), 2017 WL 4280602 (S.D.N.Y. Sept 25, 2017). On October 5, Bloomberg filed a Fed.R.Civ.P. 23(f) petition to the Second Circuit for permission to appeal the Orders granting certification of the two classes.

         On October 11, Bloomberg filed a motion to stay the issuance of class notice pending the resolution of Bloomberg's petition to the Second Circuit and, in the event the petition were granted, the Second Circuit's decision regarding the appeal. The motion was fully submitted on October 20. The plaintiffs consent to a stay pending a settlement conference to be held on November 30, 2017, but oppose any stay beyond that date if no settlement is reached on November 30.

         The standard for evaluating a stay application is well established:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

S.E.C. v. Citigroup Global Markets Inc., 673 F.3d 158, 162 (2d Cir. 2012) (per curiam) (citation omitted) (mandamus petition). See also In re Electronic Books Antitrust Litigation, 2014 WL 1641699, at *4 (S.D.N.Y. Apr. 24, 2014) (applying standard to Rule 23(f) petition). The Second Circuit “applie[s] these same factors in considering whether to vacate a stay.” In re World Trade Center Disaster Site Litigation, 503 F.3d 167, 170 (2d Cir. 2007). These factors operate as a “sliding scale” where “[t]he necessary ‘level' or ‘degree' of possibility of success will vary according to the court's assessment of the other stay factors ... [and][t]he probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiff will suffer absent the stay.” Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir. 2006) (citation omitted). A stay is an “intrusion into the ordinary processes of administration and judicial review, and accordingly is not a matter of right.” Nken v. Holder, 556 U.S. 418, 427 (2009) (citation omitted).

         Bloomberg has made no persuasive showing of harm or of a likelihood of success on the merits, and any stay beyond November 30 would injure plaintiffs and the public interest. Accordingly, the request for a stay pending review of Bloomberg's Rule 23(f) petition is denied.

         I. Irreparable Injury and Harm to Plaintiffs

         To demonstrate ongoing irreparable harm such that a stay is proper, a party must show that it will suffer injury which cannot be remedied absent a stay. In re Electronic Books Antitrust Litigation, 2014 WL 1641699, at *4. The party seeking the stay has the burden of showing “injury that is not remote or speculative but actual and imminent, and for which a monetary award cannot be adequate compensation.” Dexter 345 Inc. v. Cuomo, 663 F.3d 59, 63 (2d Cir. 2011) (citation omitted).

         Bloomberg has failed to meet its burden here.

         Bloomberg alleges a vague “reputational harm” but does not support a contention that such harm is irreparable and more than speculative. Bloomberg has not asserted that the harm it would suffer is any different from the reputational harm suffered by other defendants in class action suits where notices are issued. It has not pointed to specific language in the notice that would cause it particular harm.

         Bloomberg also alleges that issuance of the class notice could harm potential class members because it will confuse them. Bloomberg argues that confusion inevitably arises when any Rule 23(f) petition is pending, especially if a class notice is eventually retracted or corrected. The plaintiffs dispute this alleged harm, arguing that a class notice will educate class members. The injury to the class identified by Bloomberg is entirely speculative, and does not warrant a stay.

         II. Success on the Merits

         A strong showing of a likelihood of success on the merits, requires “more than a mere possibility of relief.” Nken v. Holder,556 U.S. 418, 434 (2009) (citation omitted). To demonstrate a strong showing that it is likely to succeed on the merits, Bloomberg has the burden of demonstrating “a substantial possibility, although less than a likelihood, of success” on appeal. Mohammed v. Reno,309 F.3d 95, 101 (2d Cir. 2002) (citation omitted). Success on appeal requires both that Bloomberg's petition for interlocutory appeal ...


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