United States District Court, S.D. New York
ERIC MICHAEL ROSEMAN, ALEXANDER LEE, and WILLIAM VAN VLEET, individually and on behalf of others similarly situated, Plaintiffs,
BLOOMBERG L.P., Defendant.
MEMORANDUM OPINION AND ORDER
COTE, United States District Judge
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.
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.
standard for evaluating a stay application is well
(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).
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.
Irreparable Injury and Harm to Plaintiffs
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).
has failed to meet its burden here.
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.
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
Success on the Merits
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 ...