THIS COMMUNICATION IS INTENDED FOR LICENSED ATTORNEY EMPLOYEES: THOSE THAT WORK AS FIRST PASS DOCUMENT REVIEWERS (NOT INDEPENDENT CONTRACTORS) FOR DOCUMENT REVIEW ENTITIES (NOT LAW FIRMS) AND NOT PAID OVERTIME.

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FOR ATTORNEYS CURRENTLY OR FORMERLY WORKING FOR CONSILIO, CLICK ON THE CONSENT FORM TO DOWNLOAD.

 

CONSENT TO JOIN CONSILIO LAWSUIT

If you download this form, you must return it to the Administrator, as further explained below.

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NOTICE OF COLLECTIVE ACTION LAWSUIT

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SUMMARY OF LITIGATION

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NOTICE:  The contents of this page only represent Plaintiff's version of the facts and law, and of which, Defendants do not agree. 

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The Complaint was filed on August 2, 2020, by Bruce Cohen, a licensed attorney who is an employee of Consilio LLC, and Consilio Services, LLC (“Consilio”) with primary job duties as a First Pass document reviewer. Cohen filed this lawsuit on behalf of himself and other similarly situated employees pursuant to the Fair Labor Standards Act (“FLSA”). Cohen seeks overtime wages for hours worked in excess of forty (40) per week. Cohen also filed claims under corresponding Minnesota statutes, which provide greater remedies, including statutory penalties.

 

Consilio filed an Answer. In additional to its general denials, the key affirmative defense is the FLSA Learned Professional Employee Exemption. 29 CFR Section 541.300. Consilio claims the exemption applies because Cohen’s primary job duties constitute the practice of law and he is "actually engaged" in the practice of law, which then purportedly waives the salary requirements for the professional employee exemption of 29 CFR Section 541.304(a)(1), (d). Consilio also filed a motion to dismiss. The Court stayed litigation, pending a decision on the motion to dismiss.

 

On May 27, 2021, the Court filed its decision on the motion to dismiss. The Court denied Consilio’s request to dismiss the national Collective, denied Plaintiff’s motion to amend the Complaint, and dismissed Plaintiff’s claims for the unauthorized practice of law and related state claims.

 

Plaintiff’s remaining claims include: FLSA overtime wages, liquidated damages, and attorney fees and costs. Remaining Minnesota employee claims include: statutory penalties, interest, and attorney fees and costs.

 

After the Court's decision on the motion to dismiss, the parties agreed to stay litigation in order to enter into settlement negotiations through private mediation in September, 2021. Those efforts were not successful. 

 

On December 13, 2021, the Court filed the initial Pretrial Scheduling Order, which then triggered the start of formal discovery. Although the Complaint was filed on August 2020, there has been only about eight months of formal discovery.

 

During the discovery phase around November 2021, Consilio purportedly made unilateral payments to all Minnesota-based employees for all overtime not paid in excess of 40 hours per week from August 5, 2019 (the date it changed the employment status of First Pass document reviewers from non-exempt to exempt) through October 24, 2021. Consilio also purportedly paid liquidated damages in excess of 48 hours per week. Total amount paid was $256,010.07.

 

These purported unilateral payments were not negotiated or agreed to by Cohen's counsel. The outstanding dispute for Minnesota employees are claims for interest, statutory penalties, and attorney fees and costs.

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On August 16, 2022, the Court filed its Order, which was based on a Stipulation between the parties. The Order granted a stay of litigation, conditionally certified the proposed FLSA Collective, and approved the Notice of Collective Action Lawsuit and Consent Form.

 

MERITS OF THE CASE

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Cohen claims that the FLSA Professional Employees Exemption does not apply because his primary job duties as a First Pass document reviewer do not constitute the practice of law. Cohen also claims that Consilio is not authorized to lawfully provide any legal services to any third-party, including its law firm clients.  As an employee of Consilio, neither can he.

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The Practice of Law

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The FLSA Professional Employee Exemption mandates that the hourly wage attorney employee must hold a valid US license to practice law and primarily be engaged in the actual practice of law.

 

• A Juris Doctor (JD) degree alone does not confer a license to practice law. At Consilio, JDs routinely perform the same primary job duties as Cohen but receive overtime. Cohen argues that he should be similarly paid overtime.

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• Consilio employs in India First Pass document reviewers that do the same primary job duties as Cohen. Almost none have a valid US license to practice law. Cohen argues that all of his primary job duties that are also performed in India do not constitute the practice of law.

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• Properly trained high school graduates can identify and redact Personal Identifiable Information (PII), which includes a driver's license or social security number. Cohen argues that his PII duties do not constitute the practice of law.

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• Consilio utilizes computers that are programmed and “trained” to engage in many first pass document review duties. Cohen argues that to the extent computers do what he does, those duties do not constitute the practice of law.

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• The FLSA exemption generally requires the employee to be salaried. Cohen is paid hourly. Hourly employees must be “actually engaged" in the practice of law.

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• The hallmark of a licensed attorney is the exercise of independent judgment. Cohen claims that Consilio explicitly requires him to not exercise discretion or independent judgment of a licensed attorney when coding documents for attorney client privilege. Consilio training materials explicitly require him to put aside his law school training and his law firm experiences ("real world") as a licensed attorney and instead requires him to strictly follow the Project Protocol.​

 

The Unauthorized Practice of Law

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Consilio is not registered or authorized to provide any legal services as a law firm by the Minnesota Secretary of State or the Minnesota Board of Professional Responsibility. Consilio also it not similarly registered or authorized in any other State. Instead, Consilio is merely registered in Minnesota and in all States that it conducts business as a standard foreign limited liability company.

 

Cohen argues that without proper registrations and authorizations, Consilio cannot lawfully provide any legal services to any third party, which includes its law firm clients. Cohen further argues that as an employee, neither can he. This is distinguished from a corporate entity that regularly and lawfully hires an attorney as part of its in-house legal department to provide in-house legal services to the employer.

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Without making any material change to Cohen's primary job duties, Consilio made a decision to change his employment status from non-exempt to exempt to avoid paying overtime. If Consilio continues to allege it has a good faith basis for that change, the FLSA imposes on Consilio the burden of proof to justify that change. The FLSA also imposes on Consilio the burden of proof to establish the applicability of the professional employee exemption.

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HOW TO JOIN THIS LITIGATION

 

If you are interested in opting in to this litigation, please see the following Court approved documents:

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• Order Granting The Parties’ Stipulation to Stay Litigation, Conditionally Certify Proposed FLSA Collective, Send Notice, and Pursue Settlement Discussions

 

• Notice of Collective Action Lawsuit

 

Please note that BOTH the executed

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• Consent Form and Retainer​​

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must be received by Plaintiff’s counsel before the deadline to file the Consent Form in order for you to opt-in.  Please contact Plaintiff's counsel to request the Retainer Agreement.

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