National Law Journal Names Neal Katyal Litigator of the Week for Second Time in Three Months

WASHINGTON, D.C., 9 JULY 2015 – Hogan Lovells is pleased to announce that Appellate Practice Co-Head Neal Katyal has been named Litigator of the Week by the National Law Journal.

This is the second time in three months that the National Law Journal has named Katyal Litigator of the Week. In May, he was recognized for his leadership in the en banc 9th Circuit 10-1 copyright win on behalf of Google and YouTube.

On this occasion, Katyal was honored for leading a team that scored an appellate victory for Fox Searchlight Pictures Inc. and Fox Entertainment Group Inc., (Fox). The U.S. Court of Appeals for the Second Circuit weighed in on a lower court decision, deciding that the wrong test had been applied in determining whether interns working for Fox were covered by wage laws and therefore entitled to payment.

Fox was sued by unpaid interns who worked on the movie Black Swan and in Fox Entertainment's front office. The interns claimed they should have been paid, and had convinced a district court to grant them summary judgment on the issue of whether they were employees and to certify a class that would include many of Fox's interns in New York. Hogan Lovells was hired after the District Court ruled against Fox, and obtained a reversal of that decision.

The Second Circuit held that the wrong test had been applied in determining if Fox had violated the federal Fair Labor Standards Act and the New York Labor Law, and sent the case back to district court.

The crux of the argument was which test should be applied to decide whether the interns were employees. The plaintiffs argued that U.S. Department of Labor wage laws prevailed, whose guidelines looked at whether an employer derives an immediate advantage from the intern's activities and whether an internship offers training similar to what would be given in an educational setting.

Katyal pushed instead for a "primary beneficiary" test: If the benefits of the internship to the intern outweighed those to the company, the intern did not qualify for protection under federal and state wage laws.

The Second Circuit agreed with Fox that it was necessary to look at the entirety of the circumstances—including the educational experiences that often accompany an internship—to establish whether an intern should be treated as an employee.

The Washington, D.C. team was led by Katyal and included associates Mary Helen Wimberly, Frederick Liu, and Morgan Goodspeed.

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