fruit saladSiriusXM has wasted very little time in firing back on a potential class action lawsuit involving a former intern for the Howard Stern Show.  The suit alleges that SiriusXM failed to pay a non-paid intern and according to the plaintiff, Melissa Tierney was born from an alleged injury suffered when getting Stern his fruit salad.  At this point, with all due respect to the parties involved, I have dubbed the suit as, “The Fruit Salad Suit“.

SirusXM has issued a detailed response that outlines 75 specific responses and 14 specific defenses in this action.  Defenses include:

  • Plaintiff and any opt-ins or individuals whom Plaintiff seeks to represent have failed, in whole or in part, to state claims upon which relief can be granted.
  • Plaintiff’s claims and the claims of any opt-ins or individuals whom Plaintiff seeks to represent are barred, in whole or in part, by statutory exemptions, exclusions, exceptions, or credits under the FLSA and New York Labor Law, including, but not limited to, the intern and/or trainee exceptions to the FLSA and New York Labor Law.
  • Sirius acted in good faith and had reasonable grounds for believing that it was in compliance with the FLSA and New York Labor Law in its pay and classification practices with respect to Plaintiff and any opt-ins or individuals whom Plaintiff seeks to represent.
  • Plaintiff’s claims and the claims of any opt-ins or individuals whom Plaintiff seeks to represent are barred, in whole or in part, by the applicable statutes of limitations.
  • Plaintiff is not entitled to conditional or final certification or to Court-facilitated notice under 29 U.S.C. § 216(b) because Plaintiff is not similarly situated to potential opt-ins and Plaintiff cannot adequately represent the interests of the potential opt-ins.
  • Plaintiff’s attempt to bring her claims on behalf of a class as a class or collective action fails because an independent and individual analysis of the claims of Plaintiff and each individual whom she seeks to represent, and each of Sirius’ defenses, is required
  • Plaintiff is not entitled to class action certification under Rule 23 of the Federal Rules of Civil Procedure because Plaintiff cannot satisfy the requirements for bringing a class action and Plaintiff cannot adequately represent the interests of potential class members.
  • Adjudication of this case as a class or collective action would violate Sirius’ constitutional rights to due process.
  • To the extent that they are superseded or preempted by the FLSA, Plaintiff’s state law claims and the state law claims of opt-ins or individuals whom she seeks to represent are barred.
  • The claims of Plaintiff and any opt-ins or individuals whom she seeks to represent are barred, in whole or in part, by the doctrines of waiver, laches, estoppel, off-set, unclean hands, payment, lack of standing, and release.
  • Plaintiff’s claims and the claims of any opt-ins or individuals whom she seeks to represent are barred, in whole or in part, because they failed to demand payment.
  • Liquidated damages are not available because Sirius made a good faith and reasonable effort to comply with FLSA and the New York Labor Law and had reasonable grounds to believe that it had not violated the laws.
  • The time for which Plaintiff and opt-ins or the individuals she seeks to represent seek compensation does not, in whole or in part, constitute compensable working time.
  • Plaintiff and any opt-ins or individuals she seeks to represent are not employees as defined by the FLSA or New York Labor Law.

WHEREFORE, Sirius requests entry of judgment in its favor on the Complaint and prays that this Court:

(a) Dismiss the Complaint with prejudice;

(b) Award its costs and disbursements in this action, including attorneys’ fees; and

(c) Award Sirius such other and further relief as is just and proper. Sirius reserves the right to amend this Answer and Defenses to Plaintiff’s Complaint and add additional defenses as discovery may warrant.

In essence, the attorney for the Plaintiff has his work cut out for him.  The filing by SiriusXM was swift, coming just weeks after the initial suit was filed.  Interns Matthew Goldberg and Justin Vitetta have also joined the suit.  Golberg was an Intern on the Opie & Anthony Show back in 2011.  According to OAPedia.com, a fan website, there did not seem to be a lot of love for Goldberg.  Vitetta was an intern at SiriusXM for nine months, and it appears was then hired by the company for 6 months.  His employment ended in November 2013 according to his LinkedIn profile:

Music Programming Coordinator

Sirius XM Radio Inc.

Public Company; 1001-5000 employees; SIRI; Entertainment industry

June 2013 – November 2013 (6 months) New York, NY

I share the wonderful joy of music with listeners across North America

Music Programming Intern

Sirius XM Radio Inc.

Public Company; 1001-5000 employees; SIRI; Entertainment industry

September 2012 – May 2013 (9 months) New York City, NY

Gaining music programming and audio editing experience through programs such as Adobe Audition, Music Master, Prophet and Dalet systems.
Ample use of Microsoft Office for various record keeping objectives and other administrative tasks.
Present in studio hand for live shows weekly.
Organization of metadata, maintenance of music library, and correspondence with on air talent.  Programming channels such as: Jam On, Pearl Jam Radio, EStreet Radio, Faction, Radio Margaritaville, The Joint, The Pulse, 80’s on 8, Ozzy’s Boneyard, The Spectrum, Hip Hop Nation, SiriusXMU, and specialty shows such as “Tony Hawk’s Demolition Radio” on Faction, and EStreet Radio’s “The Wild and The Innocent” with Jim Rotolo.

All in all, the Fruit Salad Suit seems to be moving along, but there is a lot of work to be done.  Clearly SiriusXM feels that the law is on its side with regard to this suit.  Should the laws governing internships be modified?  There is certainly room for debate.  While this case may certainly be used to try to change the laws down the road, I am not convinced that the plaintiffs in this suit will garner any success on this suit in and of itself.  If their motive is to bring about change, kudos.  If their motive is to collect a payday, then I think they will have a long and winding road to get there.

I do feel sorry for Melissa Tierney in that she had an alleged injury on the job and apparently wanted to recover some medical expenses in some form or fashion.  From what has been stated, this class action suit was somewhat brought upon her.  It now appears that the suit is a money grab.  The notice that all of these Plaintiffs signed was all about unpaid wages:

6-21 unpaid

Clearly there will be varied opinion on the broader issue of unpaid internships, their value, and the overall practice.  The lawsuit, I suspect, will be a long and drawn out process that in the end will resolve very little.  Stay Tuned!