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Fox Moves for Immediate Appeal and Stay in 'Black Swan' Suit

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By Gabriella Khorasanee, JD on September 04, 2013 10:03 AM

The intern lawsuits are still at it -- both have different outcomes so far -- but are seeking the same thing -- immediate appeal.

Hearst & Black Swan

In a lawsuit involving magazine interns, a former magazine intern sued her former employer, Hearst, under New York and Federal Law. The Southern District of New York denied plaintiffs' motion for summary judgment and denied class certification.

Soon after, the court granted the plaintiffs' motion for immediate appeal under 28 U.S.C. § 1292(b), which interestingly, defendant did not contest. The court granted the request and stated: "If the Second Circuit provides clarification or a different legal standard, it will guide a resolution of the outstanding issues pending in the Circuit."

In the very same district, in what's better known as the "Black Swan" case, unpaid interns are suing Fox Searchlight and Fox Entertainment, for unpaid work conducted in the production of "Black Swan," reports Deadline. Coming to a very different conclusion, Judge William Pauley, granted in part plaintiffs' motion for summary judgment holding that the interns were, in fact, employees. In doing so, he did not apply the "primary beneficiary" test, which determines who -- the employer or worker -- benefitted most from the arrangement.

"Black Swan" -- New Motions

On August 23, Fox filed two motions with the District Court for the Southern District of New York, reports Deadline. The first motion, like the one in Hearst, is a motion for immediate appeal pursuant to 28 U.S.C. § 1292(b). Relying heavily on Hearst, and the fact that the same district has come to opposite conclusions, Fox argues that immediate appeal is necessary. The second motion requests a stay until the underlying issues are sorted out.

Judge Pauley has not yet ruled on these motions, but considering two other similar cases are pending before the Second Circuit (one of them being Hearst), it seems reasonable to grant the motion to receive some clarity from the Second Circuit. Regardless, the outcome of these cases will have huge ripple effects across industries that utilize the skills of unpaid interns.

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