Paul L.

McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
Telephone: (267) 238-3835
Facsimile: (267) 238-3801
Email: paul@plmcdonaldlaw.com
Counsel for Plaintiff and
the Proposed Collective

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

LAWRENCE “POPPY” LIVERS,

Plaintiff,

v. Civil Action No. 2:17-cv-04271-MMB

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, a/k/a the NCAA, et al.

Defendants.

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ OBJECTION AND MOTION TO STRIKE

Defendants’ Objection and Motion to Strike demonstrates that Defense Counsel’s

pattern of sanctionable conduct – intentionally misleading the courts in Berger v. NCAA and

Dawson v. NCAA, before, and attempting to do the same, here – is their modus operandi

when seeking dismissal of the well-pleaded FLSA complaints of student athletes.

A. Defense Counsel Expressly Incorporated Their Replies In Support of

Defendants’ Motions to Dismiss into Their Oppositions to Sanctions;
Thus, Defense Counsel “Opened the Door” to Plaintiff’s Proper Reply

Defense Counsel chide Plaintiff Counsel, asserting the Reply in Support of Plaintiff’s

Motion for Sanctions was “really an unauthorized Surreply opposing the pending Motion to

Dismiss” not permitted by this Court’s Pretrial and Trial Procedures – Civil Cases § C(2).

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 But, Defense Counsel well know that they expressly incorporated their Replies in

Support of Defendants’ Motions to Dismiss into their perfunctory oppositions to sanctions.

In their Opposition to Motion for Sanctions (ECF 38), at 1, Defense Counsel assert:

The gist of Plaintiff’s motion [for sanctions] is his argument that

“I’m right and you’re wrong.” As explained in greater detail
in Defendant’s Moving and Reply papers in support of
their Motion to Dismiss (Dkt. 24-1 and 37, which are
incorporated by this reference) Plaintiff is not right ….

(emphasis supplied).

Furthermore, in their Memorandum of Law in Opposition to Plaintiff’s Motion for

Sanctions (ECF 36), at 2, Defense Counsel assert:

As Defendants’ motion and reply papers (both of which

are incorporated herein by reference) make clear, the
arguments in support of their motion are firmly rooted in
existing law in the Third Circuit and beyond.

(emphasis supplied).

In Plaintiff’s Reply in Support of Motion for Sanctions (ECF 39), at 2 n.1,

Plaintiff Counsel noted that Defense Counsel had expressly incorporated their Replies in

Support of Defendants’ Motions to Dismiss into their oppositions to sanctions.

By expressly incorporating their Replies in Support of Defendants’ Motions to Dismiss

into their oppositions to sanctions, Defense Counsel “opened the door” for Plaintiff to

properly reply to, and refute, any argument incorporated into their oppositions to sanctions.

The legal doctrine of “opening the door” is well-known – not only to any attorney,

but also to any layperson who has viewed scripted cross-examinations on Law & Order.

The premise of Defense Counsel’s Objection and Motion to Strike is undermined by

their own choice to expressly incorporate arguments into their oppositions to sanctions.

Given this, Defense Counsel well know that the mere act of filing their Objection and

Motion to Strike was both legally frivolous and done for an improper purpose under Rules

11(b)(1) and (2).

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 Plaintiff respectfully submits that Defense Counsel’s act of filing their Objection and

Motion to Strike, and their contentions therein intended to further obfuscate the truth in an

effort to mislead this Court, ought to both be considered part of a continuing violation of

Rule 11 and adjudged together with conduct complained of in Plaintiff’s Motion for

Sanctions and Reply in Support of Motions for Sanctions.

B. Because Defense Counsel Well Know That They “Opened the Door” in
Their Oppositions to Sanctions, Their Objection and Motion to Strike
Is the Actual Unauthorized Surreply

Under Federal Rules of Civil Procedure and this Court’s Pretrial and Trial Procedures –

Civil Cases, Defense Counsel “had their say” in their Replies in Support of Defendants’

Motions to Dismiss expressly incorporated into their perfunctory oppositions to sanctions.

Defense Counsel had the full opportunity allotted under Rules and Court Procedures

to reply to Plaintiff Counsel’s assertions that, except for Berger and Dawson, the Third Circuit

and 10 other Circuits have only relied upon Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992)

as grounds to grant motions to dismiss well-pleaded FLSA complaints of prisoners engaged

in involuntary servitude as punishment for crime under the Thirteenth Amendment.

Such as it is, Defense Counsel “made their case” that Vanskike can, or should, be

relied upon as grounds to grant motions to dismiss well-pleaded FLSA complaints of

non-prisoners in their Reply Memorandum in Support of Motion to Dismiss (ECF 37), at 6-8,

and Defendants’ Reply Memorandum of Law in Further Support of Their Motion to Dismiss

the Complaint (ECF 35), at 6-7, both expressly incorporated into their oppositions to sanctions.

Neither reply memorandum in support of dismissal disputed Plaintiff Counsel’s

exhaustive sampling of 49 cases, in the Third Circuit and 10 other Circuits, relying upon

Vanskike as grounds to dismiss prisoners’ wage claims under the FLSA and other theories.

See Pl.’s Mot. for Sanctions, at 19 nn. 9 and 10.

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 Instead, Defense Counsel claimed Vanskike does not recognize a prisoner exception to

the FLSA – without discussing, or even acknowledging, the Thirteenth Amendment’s centrality

to Vanskike. In support of their frivolous claim, Defense Counsel offered one case, Benjamin v.

B & H Educ., Inc., 877 F.3d 1139 (9th Cir. 2017), asserting that it recognized prisoners to be

similarly situated under the FLSA to the homeless rehabilitatees in Williams v. Strickland,

87 F.3d 1064 (9th Cir. 1996) – even though both Benjamin and Williams were decided at

summary judgment and neither cited the rationale of Vanskike as grounds for any dismissal.

Now, after briefing has closed, Defense Counsel scheme for a fourth opportunity –

after their motions to dismiss, replies in support of motions to dismiss, and oppositions to

sanctions – to misrepresent the limited applicability of Vanskike to this Court.

Defense Counsel’s citation and discussion of cases in their Objection and Motion to

Strike, at 2-4, is entirely new.

Under the guise of an Objection and Motion to Strike, Defense Counsel purposely

submit an unauthorized surreply not permitted by this Court’s Pretrial and Trial Procedures

– Civil Cases § C(2).

Defense Counsel’s citation and discussion of cases in their Objection and Motion to

Strike, at 2-4, is not only new, but also unavailing. For reasons discussed in Section C, infra,

cases that Defense Counsel now offer, for the first time, do not support reliance upon Vanskike

as grounds to grant motions to dismiss well-pleaded FLSA complaints of non-prisoners.

C. Defense Counsel Well Know That Their Newly Cited Cases, Outside the
Third Circuit, Do Not Support Reliance upon Vanskike to Dismiss the
Well-Pleaded FLSA Complaints of Non-Prisoners

First, it bears reiterating the centrality of the Thirteenth Amendment to the dismissal

of the well-pleaded FLSA complaint of the prisoner in Vanskike.1

1 Defense Counsel chide Plaintiff Counsel for stating that the Thirteenth Amendment is
“exhaustively discussed” in Vanskike. Plaintiff Counsel concedes that it is more precise to note, and
refer to, the centrality of the Thirteenth Amendment to the dismissal in Vanskike.

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 In Vanskike, the court held:

[T]he relationship between the DOC [Department of

Corrections] and a prisoner is far different from a traditional
employer-employee relationship, because … inmate labor belongs
to the institution. The Thirteenth Amendment excludes
convicted criminals from the prohibition of involuntary
servitude, so prisoners may be required to work. Further, there
is no Constitutional right to compensation for such work;
compensation for prison labor is “by grace of the state.” That
there is no Constitutional right does not, however, foreclose the
possibility of a statutory right to compensation ….
[L]iteral application of the Bonnette factors [i.e., a multi-factor
employee test] in the present context …. fail to capture the
true nature of the relationship for essentially they presuppose a
free labor situation. Put simply, the DOC’s “control” over
Vanskike [stems] from incarceration itself. The control that the
DOC exercises over a prisoner is nearly total, and control over
his work is merely incidental to that general control. Indeed, the
Thirteenth Amendment’s specific exclusion of prisoner labor
supports the idea that a prisoner performing required work for
the prison is actually engaged in involuntary servitude,
not employment ….
Prisoners are essentially taken out of the national economy
upon incarceration. When they are assigned work within the
prison for purposes of training and rehabilitation, they have not
contracted with the government to become its employees. Rather,
they are working as part of their sentences of incarceration.
Because Vanskike’s allegations reveal that he worked in the
prison and for the DOC pursuant to penological work
assignments, the economic reality is that he was not an
“employee” under the FLSA.

Id. at 809-810. (emphasis supplied)

While the Vanskike court found prisoners are excluded from employee protections and

the federal minimum wage under the FLSA, the court acknowledged prisoners could be paid

an amount other than the federal minimum wage “by grace of the state” and/or have a

statutory right to an amount other than the federal minimum wage under state law – because

state law can afford rights unavailable under federal law, just not fewer rights than federal law.

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 Indeed, the Prison Policy Initiative’s State and federal prison wage policies and

sourcing information (Apr. 10, 2017), 2 attached hereto as Ex. 1, compiled state and federal

prisoner pay rates – some, unpaid, but all de minimis compared to the federal minimum wage

guaranteed to those meeting employee criteria under the FLSA.

Now, Defense Counsel, for the first time, insist the Vanskike court’s acknowledgement

that prisoners could be paid an amount other than the federal minimum wage guaranteed

under the FLSA – “by grace of the state,” or by right under state law – somehow negates the

Vanskike court’s express reliance on the Thirteenth Amendment to dismiss the federal

minimum wage claim under the FLSA that was at issue in Vanskike.

This latest attempt by Defense Counsel to mislead this Court regarding the holding in

Vanskike is frivolous, and they know it.

Defense Counsel’s argument is contradicted by the clear language of Vanskike.

Moreover, it bears repeating that, except for Berger and Dawson, the Third Circuit

and 10 other Circuits only apply Vanskike, as grounds for dismissal of FLSA claims, to

prisoners, and, in so doing, reference the Thirteenth Amendment and acknowledge

its centrality to Vanskike’s holding. 3

2 All hyperlinks incorporated by reference, and in blue underlined font, were last visited on
March 2, 2018.
3 As cited in Plaintiff’s Motion for Sanctions, at 19 n.9:
See, e.g., Second Circuit: Danneskjold v. Hausrath, 82 F.3d 37 (2d Cir.
1996) | Third Circuit: Tourscher v. McCullough, 184 F.3d 236 (3d Cir.
1999) | Fourth Circuit: Harker v. State Use Indus., 990 F.2d 131 (4th
Cir. 1993); Robinson v. Commonwealth, No. 1:12cv112, 2012 U.S. Dist.
LEXIS 26474 (E.D. Va. Feb. 29, 2012) | Fifth Circuit: Reimonenq v.
Foti, 72 F.3d 472 (5th Cir. 1996); Loving v. Johnson, No. 5:04-CV-305,
2005 U.S. Dist. LEXIS 42871 (N.D. Tex. May 9, 2005) | Sixth Circuit:
Abdullah v. Myers, No. 94-5782, 1995 U.S. App. LEXIS 9061 (6th Cir.
Apr. 13, 1995) | Seventh Circuit: Sanders v. Hayden, 544 F.3d 812
(7th Cir. 2008); Bennett v. Frank, 395 F.3d 409 (7th Cir. 2005); Gibson
v. Kronzer, No. 93-1987, 1995 U.S. App. LEXIS 7814 (7th Cir. Apr. 5,
1995); Douglas v. Aramark, No. 1:09-cv-00912, 2009 U.S. Dist. LEXIS
113381 (S.D. Ind. Dec. 2, 2009); Weissenberger v. Watters, No. 07-C-415-
C, 2007 U.S. Dist. LEXIS 57595 (W.D. Wis. Aug. 3, 2007); Riley v.
Doyle, No. 06-C-574-C, 2006 U.S. Dist. LEXIS 75526 (W.D. Wis. Oct.

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 Still, Defense Counsel continue to dig an even deeper hole of deceit, citing new cases,

and implying that these new citations demonstrate reliance upon Vanskike as grounds to

grant motions to dismiss well-pleaded FLSA complaints of non-prisoners.

Perhaps it is not surprising, at this point, that these newly cited cases do no such thing,

but rather further demonstrate Defense Counsel’s comfort obfuscating the truth in an

intentional effort to mislead this Court.

In each case newly cited by Defense Counsel, the rationale for the dismissal in Vanskike

is never relied upon, let alone referenced, as grounds for any dismissal. More to the point,

Vanskike is never relied upon as Defense Counsel have urged – here, and in Berger and

Dawson, before – to grant motions to dismiss well-pleaded FLSA complaints of non-prisoners.

Indeed, none of the newly cited cases ended in a motion to dismiss being granted

without leave to amend, and the vast majority – 17 out of 22 – were decided at later stages of

litigation, e.g., motion to conditionally certify a collective, summary judgment, or trial.

Again, Defense Counsel fail to disclose these procedural postures, which undermine,

rather than support, the premise of Defendants’ Motions to Dismiss.

Defense Counsel’s repeated failure to disclose the procedural posture of such cases – now,

and in their motions to dismiss and replies in support of motions to dismiss – is sanctionable.

At this point, it is clear that their failure to disclose is an intentional effort to mislead.

16, 2006); George v. SC Data Ctr., 884 F. Supp. 329 (W.D. Wis. 1995);
George v. Badger State Indus. (BSI), 827 F. Supp. 584 (W.D. Wis. 1993)
| Eighth Circuit: McMaster v. Minnesota, 819 F. Supp. 1429 (D.
Minn. 1993), aff’d, 30 F.3d 976 (8th Cir. 1994) | Ninth Circuit: Hale v.
Arizona, 993 F.2d 1387 (9th Cir. 1993); Kasirem v. Mgmt. & Training
Corp., No. 1:14-cv-00382, 2014 U.S. Dist. LEXIS 94031 (E.D. Cal. July
9, 2014); Godfrey v. Kirkegard, No. CV 12-00063, 2012 U.S. Dist. LEXIS
155702 (D. Mont. Aug. 7, 2012); Gray v. Hernandez, No. 08 CV 1147,
2011 U.S. Dist. LEXIS 29163 (S.D. Cal. Mar. 14, 2011) | Tenth
Circuit: Adams v. Neubauer, 195 F. App’x 711 (10th Cir. 2006); Lockett
v. Neubauer, No. 05-3209, 2005 U.S. Dist. LEXIS 36898 (D. Kan. Dec.
28, 2005) | Eleventh Circuit: Villarreal v. Woodham, 113 F.3d 202
(11th Cir. 1997) | D.C. Circuit: Henthorn v. Dep’t of Navy, 308 U.S.
App. D.C. 36, 29 F.3d 682 (1994).

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 Moreover, the vast majority of the newly cited cases – again, 17 out of 22 – are in the

Seventh Circuit. Scant, and passing, references to Vanskike in these cases are mostly preface,

cited among Seventh Circuit cases broadly describing standards and principles in that Circuit.

Importantly, none of these references to Vanskike are relied upon as grounds for any dismissal.

In seriatim:

• Cosmetology students

Hollins v. Regency Corp., 867 F.3d 830 (7th Cir. 2017). Summary judgment.

Vanskike is referenced as follows:

In assessing whether Hollins was an “employee” for

purposes of the FLSA, we would like to be able to rely on
the statute. But, as we noted in Vanskike v. Peters, 974
F.2d 806 (7th Cir. 1992), it is of little use: it “defines the
term ‘employee’ in a circular fashion, as ‘any individual
employed by an employer,’ 29 U.S.C. § 203(e)(1) ... .” 974
F.2d at 807. The Supreme Court has added that we must
construe the terms “employee” and “employer”
expansively, see Nationwide Mutual Ins. Co. v. Darden,
503 U.S. 318, 326, 112 S. Ct. 1344, 117 L. Ed. 2d 581
(1992). This, we said in Vanskike, requires us to
“examine the ‘economic reality’ of the working
relationship.” 974 F.2d at 808. The Department of Labor
has offered a six-factor “test” that (it thinks) enables a
court to distinguish between an employee and an unpaid
trainee …. Numerous other multi-factor tests have also
been used by courts. See, e.g., Estate of Suskovich v.
Anthem Health Plans of Va., Inc., 553 F.3d 559, 565-66
(7th Cir. 2009) (ten factors, adapted from the ALI’s
Restatement (Second) of Agency § 220); Sec. of Labor v.
Lauritzen, 835 F.2d 1529, 1534-35 (7th Cir. 1987) (six or
seven factors).

Id. at 834-35. (emphasis supplied)

• College coaches

Hefferman v. Ill. Cmty. Coll. Dist. No. 508, Case No. 00 C 0794, 2000 U.S.

Dist. LEXIS 6770 (N.D. Ill. May 12, 2000). Motion to dismiss denied.

Vanskike is referenced as follows:

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 In Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1535
(7th Cir. 1987), the Seventh Circuit held, that “in seeking
to determine the economic reality of the nature of the
working relationship, courts do not look to a particular
isolated factor but to all the circumstances of the work
activity.” (citing Rutherford Food Corp. v. McComb, 331
U.S. 722, 730, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947)), see
also, Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir.
1992) (“status as an ‘employee’ for purposes of the FLSA
depends on the totality of circumstances rather than on
any technical label”). In Schultz v. Cadillac Associates,
Inc., 413 F.2d 1215, 1217 (7th Cir. 1969), the Seventh
Circuit held that an independent contractor “label does
not necessarily take the worker from the protection of the
Act.” See also Dole M. Amerilink Corp., 729 F. Supp. 73,
76 (E.D. Mo. 1990).

Id. at *4-5. (emphasis supplied)

• Construction and maintenance workers

Simpkins v. Dupage Hous. Auth. & DHA Mgmt., No. 15 CV 9103, 2017

U.S. Dist. LEXIS 123598 (N.D. Ill. Aug. 1, 2017). Summary judgment.

Simpkins reflects the impact of Defense Counsel’s success in misleading the

Berger court. Still, the Simpkins court recognized the utility of applying facts

to a multi-factor employee test. Vanskike is referenced as follows:

Courts construe the terms “employee” and “employer”

broadly. Berger v. Nat’l Collegiate Athletic Ass’n, 843
F.3d 285, 290 (7th Cir. 2016) (citing Vanskike v.
Peters, 974 F.2d 806, 807 (7th Cir. 1992)). However,
“the definition of ‘employee’ does have its limits.’” Id.
(quoting Tony & Susan Alamo Found. v. Sec’y of Labor,
471 U.S. 290, 295, 105 S. Ct. 1953, 85 L. Ed. 2d 278
(1985)). The determination of “employee” status requires
courts to examine the totality of the circumstances;
technical labels are not outcome determinative. Id.
(citation omitted). This depends on the “economic reality
of the working relationship between the alleged employee
and the alleged employer to decide whether Congress
intended the FLSA to apply to that particular
relationship.” Id. (quoting Vanskike, 974 F.2d at 808)
(internal quotation marks omitted).

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 **********
The court of appeals has also stated that courts may
decline to apply multifactor tests “when they ‘fail to
capture the true nature of the relationship’ between the
alleged employee and the alleged employer.” Berger, 843
F.3d at 291 (quoting Vanskike, 974 F.2d at 809).
In this case, the Court finds that certain of the Lauritzen
factors [a multi-factor employee test] are useful guideposts,
but other factors are crucial in ascertaining the true
economic reality of the business relationship.

Id. at *10-12. (emphasis supplied)

____________________

Montana v. JTK Restorations, LLC, No. 14-C-487, 2015 U.S. Dist. LEXIS

122920 (E.D. Wis. Sep. 14, 2015). Summary judgment granted for Plaintiffs.

Vanskike is referenced as follows:

[S]tatus as an “employee” for purposes of the FLSA

“depends on the totality of circumstances rather than any
technical label,” so courts “must examine the ‘economic
reality’ of the working relationship.” Vanskike v. Peters,
974 F.2d 806, 808 (7th Cir. 1992). Relevant factors are:
(1) the nature and degree of the alleged employer’s control
of the manner in which the work is to be performed;
(2) the alleged employee’s opportunity for profit or loss
depending on his or her managerial skill; (3) the alleged
employee’s own investment in equipment or materials
required; (4) whether the service rendered requires a
special skill; (5) the degree of permanency and duration of
the working relationship; and (6) the extent to which the
service rendered is an “integral part” of the alleged
employer’s business. Sec’y of Labor v. Lauritzen, 835 F.2d
1529, 1534-35 (7th Cir. 1987).

Id. at *5-6. (emphasis supplied)

____________________

Calderon v. J. Younes Constr. Llc & John Younes, LLC, No. 12 C 3793,

2013 U.S. Dist. LEXIS 87817 (N.D. Ill. June 23, 2013). Plaintiffs’ verdict

at bench trial. Vanskike is referenced as follows:

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 “[S]tatus as an ‘employee’ for purposes of the FLSA
depends on the totality of the circumstances rather than
on any technical label . . . .” Vanskike v. Peters, 974
F.2d 806, 808 (7th Cir. 1992) …. To determine whether
a worker is an employee within the meaning of the FLSA,
a court “must examine the economic reality of the working
relationship.” Vanskike, 974 F.2d at 808. Lauritzen,
835 F.2d at 1534. “[E]mployees are those who as a matter
of economic reality are dependent upon the business to
which they render service.” Id. (internal quotation marks
omitted).
The Seventh Circuit has stated that
[i]n seeking to determine the economic reality of
the nature of the working relationship, courts do
not look to a particular isolated factor but to all the
circumstances of the work activity. Certain criteria
have been developed to assist in determining the
true nature of the relationship, but no criterion is
by itself, or by its absence, dispositive or
controlling.
Among the criteria courts have considered are the
following six [the Lauritzen multi-factor employee test]….
Id. at 1534-35 (citation omitted). See also Estate of
Suskovich v. Anthem Health Plans of Va., Inc., 553 F.3d
559, 565 (7th Cir. 2009).

Id. at *14-16. (emphasis supplied)

____________________

Campusano v. Lusitano Const. LLC, 208 Md. App. 29 (Md. App. 2012).

Split verdict at trial. Vanskike is referenced as follows:

There is, however, more than one incarnation of the

“economic reality” test. Newell, 407 Md. at 651, 967 A.2d
729 (citing Barfield v. N.Y. City Health & Hosps. Corp.,
537 F.3d 132, 142 (2d Cir.2008)). As we explain below,
there is insufficient evidence that Francisco personally
benefitted from appellants’ labor, and so we are only
concerned with the four-factor economic reality test for
“control” that the Court of Appeals (coincidentally)
applied in Newell, 407 Md. at 653, 653 n. 39, 967 A.2d
729. See also Harker v. State Use Indus., 990 F.2d 131,
133 (4th Cir.Md.1993) (holding that “a true employer-
employee relationship” involves a “ ‘bargained-for
exchange of labor’ for mutual economic gain” (citing
Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir.1992);

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 Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1325
(9th Cir.1991))). The economic reality test for “control”
examines “whether the alleged employer (1) had the
power to hire and fire the employees, (2) supervised and
controlled employee work schedules or conditions of
employment, (3) determined the rate and method of
payment, and (4) maintained employment records.” Id. at
651 (quoting Barfield v. N.Y. City Health & Hosps. Corp.,
537 F.3d 132, 142 (2d Cir.2008)).

Id. at 39. (emphasis supplied)

• Hospital case managers

Babych v. Psychiatric Sols., Inc., No. 09 C 8000, 2011 U.S. Dist. LEXIS

130167 (N.D. Ill. Nov. 9, 2011). Motion for conditional certification of

collective granted. Vanskike is referenced as follows:

Rather than relying on common law concepts to

determine whether an employer-employee relationship
exists, courts examine the “economic reality” of the
working relationship. Vanskike v. Peters, 974 F.2d 806,
808 (7th Cir. 1992) …. Factors to consider include
“whether the alleged employer (1) had the power to hire
and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment,
(3) determined the rate and method of payment, and
(4) maintained employment records.” Vanskike, 974
F.2d at 808 (quoting Bonnette v. Calif. Health & Welfare
Agency, 704 F.2d 1465, 1470 (9th Cir. 1983)).

Id. at *21-22. (emphasis supplied)

• Restaurant workers

Heuberger v. Smith, No. 3:16-CV-386-JD-JEM, 2017 U.S. Dist. LEXIS

144783 (N.D. Ind. Sep. 7, 2017). Motion to dismiss granted, with leave to

amend. Vanskike is referenced as follows:

Consistent with these broad definitions, “[t]he Supreme

Court has instructed courts to construe the terms
‘employer’ and ‘employee’ expansively under the FLSA.”
Vanskike v. Peters, 974 F.2d 806, 807 (7th Cir. 1992)
(citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
326, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992) ….
**********

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 “Because status as an ‘employee’ for purposes of the FLSA
depends on the totality of circumstances rather than on
any technical label, courts must examine the ‘economic
reality’ of the working relationship.” Vanskike, 974 F.2d
at 808 (citations omitted). To examine this “economic
reality,” courts look at several factors to determine
whether multiple entities form a “joint employer” of an
employee who worked for only one of those entities. To use
the above example, those factors include whether the
putative employers, companies B and C: (1) had the power
to hire and fire A’s employees; (2) supervised and
controlled employee work schedules or conditions of
payments for A’s employees; (3) determined the rate and
method of payment for A’s employees; and (4) maintained
employment records of A’s employees. See Moldenhauer,
536 F.3d at 644 (applying the factors from Bonnette v.
California Health and Welfare Agency, 704 F.2d 1465, 1470
(9th Cir. 1983), a FLSA case)
**********
On at least one occasion, the Seventh Circuit has declined
to apply Bonnette, but only under case-specific
circumstances. See Vanskike, 974 F.2d at 808-10
(declining to apply Bonnette in deciding whether a prisoner
can plausibly be said to be “employed”). In Vanskike, the
court explained that Bonnette might not be helpful “in the
situation presented” because Bonnette’s factors are
“particularly appropriate where (as in Bonnette itself) it is
clear that some entity is an ‘employer’ and the question is
which one.” Id. at 809 (emphasis added). Bonnette focuses
on whether there is enough control over an individual to
classify him as an employee, but in Vanskike, the court
was faced with the opposite problem: whether too much
control over an individual - in that case, an inmate -
jeopardized the employer-employee relationship. Id. at
810. Thus, Bonnette is applicable here, where it is clear
that Plaintiff is employed, but questions remain as to
which Defendants actually employ him for FLSA purposes.

Id. at *30-32, 33 n.11. (emphasis supplied)

____________________

Emanuel v. Rolling in the Dough, Inc., No. 10 C 2270, 2012 U.S. Dist. LEXIS

166206 (N.D. Ill. Nov. 21, 2012). Summary judgment. Vanskike is referenced

as follows:

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 Courts look to the totality of the circumstances when
determining whether an individual is an “employee”
under the FLSA and examine the “economic reality” of the
working relationship. See, e.g., Vanskike v. Peters, 974
F.2d 806, 808 (7th Cir. 1992). Courts have considered a
variety of factors when examining the “economic reality”
of a purported employment relationship, though none are
dispositive or controlling. Secretary of Lab. v. Lauritzen,
835 F.2d 1529, 1534 (7th Cir. 1987). Six commonly
applied factors are [the Lauritzen multi-factor employee
test]. Id. at 1534-35.
**********
The situation at hand bears none of the indicia of a
traditional bargained-for exchange of labor for
consideration. See Vanskike v. Peters, 974 F.2d 806,
809 (7th Cir. 1992).
Here, the record shows unquestionably that the parties
had no express compensation agreement. Nor could there
be any implied agreement between Lindeman and
Emanuel in the face of his unequivocal refusal to hire her
as an employee. Rather, it appears that Emanuel and
Shafer unilaterally decided that Emanuel would work at
the Elmhurst store, which does not amount to an
employment relationship between defendants and
Emanuel for purposes of the FLSA.
Id. at *9, 12. (emphasis supplied)

____________________

Davis v. B & S, Inc., 38 F. Supp. 2d 707 (N.D. Ind. 1998). Summary judgment

denied. Vanskike is referenced as follows:

The Court recognizes that the Seventh Circuit has noted

that the Bonnette factors are particularly appropriate
where it is clear that some entity is an “employer” under
the FLSA, and the question is which one. See Vanskike
v. Peters, 974 F.2d 806, 809 (7th Cir. 1992).
Id. at 716 n.12. (emphasis supplied)

• Dog groomers

Steelman v. Hirsch, 473 F.3d 124 (4th Cir. 2007). Summary judgment.

Vanskike is referenced as follows:

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 Thus, courts have been exhorted to examine “the
circumstances of the whole activity,” rather than “isolated
factors,” Rutherford, 331 U.S. at 730, or “technical
concepts,” Goldberg, 366 U.S. at 33 (internal quotations
omitted), and they have noted that in the absence of a
statutory definition, it is permissible to draw upon
“common linguistic intuitions,” Vanskike v. Peters, 974
F. 2d 806, 807 (7th Cir. 1992).
Id. at 128. (emphasis supplied)

• Salespersons

Johnston v. Leader’s Inst., LLC, No. 1:14-cv-00193-TWP-DML, 2015 U.S.

Dist. LEXIS 159024 (S.D. Ind. Nov. 24, 2015). Summary judgment

denied. Vanskike is referenced as follows:

These criteria are intended to assist in determining the

true nature of the relationship, but no criterion is by itself,
or by its absence, dispositive or controlling. Lauritzen, 835
F.2d at 1534; Perez, 55 F. Supp. 3d at 1076. Instead, courts
are to consider all the circumstances of the work activity
rather than a particular isolated factor. Lauritzen, 835
F.2d at 1534; see also Vanskike v. Peters, 974 F.2d 806,
808 (7th Cir. 1992) (“status as an ‘employee’ for purposes
of the FLSA depends on the totality of the circumstances
rather than on any technical label”).
While the ultimate conclusion regarding whether an
individual is an employee or an independent contractor is a
question of law, the “historical findings of fact that
underlie the findings” and “the findings as to the six
factors” are questions of fact. Lauritzen, 835 F.2d at 1535
(citing Brock v. Mr. W. Fireworks, Inc., 814 F.2d 1042,
1044-45 (5th Cir. 1987) and Karr v. Strong Detective
Agency, Inc., 787 F.2d 1205, 1206 (7th Cir. 1986)). But see
Lauritzen, 835 F.2d at 1542 (Easterbrook, J., concurring)
(“If we are to have multiple factors, we also should have a
trial. A fact-bound approach calling for the balancing of
incommensurables, an approach in which no ascertainable
legal rule determines a unique outcome, is one in which
the trier of fact plays the principal part”); Narayan v. EGL,
Inc., 616 F.3d 895, 901 (9th Cir. 2010) (quoting Lauritzen
concurring opinion) (“[t]he drawing of inferences from
subordinate to ‘ultimate’ facts is a task for the trier of fact-
if, under the governing legal rule, the inferences are
subject to legitimate dispute.”).

Id. at *7-8. (emphasis supplied)

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 ____________________

Deschepper v. Midwest Wine & Spirits, Inc., 84 F. Supp. 3d 767 (N.D. Ill.

2015). Motion to dismiss denied as to FLSA, granted as to ERISA. Vanskike

is referenced as follows:

Status as an ‘employee’ for purposes of the FLSA depends

on the totality of the circumstances rather than on any
technical label.” Brown v. Club Assist Road Service U.S.,
Inc., No. 12-CV-5710, 2013 U.S. Dist. LEXIS 133990, 2013
WL 5304100, at *5 (N.D. Ill. Sept. 19, 2013) (citing
Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir. 1992)).
Whether individuals are independent contractors or
employees turns on whether they “as a matter of economic
reality[,] are dependent upon the business to which they
render service.” Sec’y of Labor v. Lauritzen, 835 F.2d 1529,
1534 (7th Cir. 1987). Six elements are relevant to this
determination [the Lauritzen multi-factor employee test].
Id. at 1535.

Id. at 776. (emphasis supplied)

• Delivery drivers

In re Fedex Ground Package Sys., 662 F. Supp. 2d 1069 (N.D. Ind. 2009).

Motions for conditional certification of classes granted and denied in part.

Vanskike is referenced as follows:

[T]o determine the employment status of the putative

class members, the FLSA requires the court to apply an
economic realities test, rather than considering the
common law concepts of “employee” and “independent
contractor.” Sec’y of Labor v. Lauritzen, 835 F.2d 1529,
1534 (7th Cir. 1987). In doing so, the court must focus on
the economic reality of the nature of the working
relationship, requiring a consideration of all the
circumstances of the work activity, not just one isolated
factor. Id. (citing Rutherford Food Corp. v. McComb, 331
U.S. 722, 730, 67 S. Ct. 1473, 91 L. Ed. 1772 (1947)); see
also Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir.
1992) (“status as an ‘employee’ for purposes of the FLSA
depends on the totality of the circumstances rather than
on any technical label.”). Among the criteria considered
are: [the Lauritzen multi-factor employee test]. Sec’y of
Labor v. Lauritzen, 835 F.2d at 1535.

Id. at 1083. (emphasis supplied)

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• Garment workers

Ling Nan Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003).

Summary judgment vacated; remanded. Vanskike is referenced as follows:

Other courts of appeals have made the same observation.

See Morgan v. MacDonald, 41 F.3d 1291, 1293 (9th Cir.
1994) (“The Bonnette factors are properly applied when an
individual is clearly employed by one of several entities
and the only question is which one. They are of no help,
however, in deciding the more fundamental question
present here: whether the inmates are ‘employed’ in the
relevant sense at all.”); Vanskike v. Peters, 974 F.2d
806, 809 (7th Cir. 1992) (“The Bonnette factors, with
their emphasis on control over the terms and structure of
the employment relationship, are particularly appropriate
where (as in Bonnette itself) it is clear that some entity is
an ‘employer’ and the question is which one.”).

Id. at 67 n.2. (emphasis supplied)

• Security guards

Solis v. Int’l Detective & Prot. Serv., Ltd., 819 F. Supp. 2d 740 (N.D. Ill. 2011).

Summary judgment granted for Plaintiffs. Vanskike is referenced as follows:

The employer’s label of “independent contractor” carries

little weight in defining the Guards’ status as independent
contractors; after all, the purpose of the economic realities
test is to set aside such conclusory classifications and
evaluate the totality of circumstances bearing on the
working relationship. Vanskike v. Peters, 974 F.2d 806,
808 (7th Cir. 1992) (status as an employee under FLSA
depends on the “economic reality” of the employment
relationship, rather than any “technical label”)

Id. at 752-53. (emphasis supplied)

• Roadside assistance drivers

Brown v. Club Assist Rd. Serv. U.S., Inc., No. 12 CV 5710, 2013 U.S. Dist.

LEXIS 133990 (N.D. Ill. Sep. 19, 2013). Motion to dismiss denied; motion for

conditional certification of collective granted in part. Vanskike is referenced

as follows:

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 Defendant’s contention that the contracts alone preclude
Plaintiffs from falling within the scope of the FLSA is at
odds with this totality of circumstances/multi-factor
approach. Indeed, both the Seventh Circuit, see Estate of
Suskovich, 553 F.3d 559, and district courts within the
circuit, see, e.g., Solis v. Int’l Detective & Protective Serv.,
Ltd., 819 F. Supp. 2d 740 (N.D. Ill. 2011), have conducted
the multi-factor analysis notwithstanding the existence of
contracts purporting to define the relationship between
plaintiffs and their alleged employers as one between
independent contractors. The bottom line is that “status as
an ‘employee’ for purposes of the FLSA depends on the
totality of the circumstances rather than on any technical
label.” Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir.
1992). The Court therefore concludes that the contracts
and any labels they contain are not dispositive here. See
Hefferman v. Ill. Cmty. Coll. Dist. No. 508, 2000 U.S. Dist.
LEXIS 6770, 2000 WL 631309, at *2 (N.D. Ill. May 16,
2000) (denying motion to dismiss FLSA claim where
defendant’s sole argument was that plaintiff was an
independent contractor because of the label affixed to
an invoice).

Id. at *17-18. (emphasis supplied)

• And others

Kibbons v. Double Jack Props., LLC, No. 17 C 3017, 2017 U.S. Dist. LEXIS

187767 (N.D. Ill. Nov. 14, 2017). Motion to dismiss denied. Kibbons reflects

the impact of Defense Counsel’s success in misleading the Berger court.

Still, the Kibbons court recognized the fact-intensive nature of employee status

and the inappropriateness of granting a motion to dismiss. Vanskike is

referenced as follows:

The Seventh Circuit has stated that whether an individual

is deemed an employee under FLSA “depends on the
totality of circumstances rather than on any technical
label,” and that “courts must examine the economic reality
of the working relationship between the alleged employee
and the alleged employer to decide whether Congress
intended the FLSA to apply to that particular
relationship.” Berger v. NCAA, 843 F.3d 285, 290 (7th
Cir. 2016)(internal quotations omitted)(quoting
Vanskike v. Peters, 974 F.2d 806, 807 (7th Cir. 1992)).

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 Defendants are seeking to delve into facts and evidence
beyond the pleadings and their argument is thus
premature. Kibbons provides ample allegations suggesting
that he might have qualified as an employee.

Id. at *3-4. (emphasis supplied)

____________________

Callahan v. City of Chi., 78 F. Supp. 3d 791 (N.D. Ill. 2015). Summary judgment.

Vanskike is referenced as follows:

The FLSA was enacted in 1938 “to protect all covered

workers from substandard wages and oppressive working
hours.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450
U.S. 728, 739, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981). The
goal was to ensure “a fair day’s pay for a fair day’s work.”
Id (quoting Overnight Motor Transp. Co. v. Missel, 316
U.S. 572, 578, 62 S. Ct. 1216, 86 L. Ed. 1682 (1942))
(internal brackets and quotation marks omitted); cf.
Vanskike v. Peters, 974 F.2d 806, 810 (7th Cir. 1992).

Id. at 801. (emphasis supplied)

____________________

Simmons v. Broadway Home Improvement Inc., No. 1:14-cv-483-JMS-DML,

2014 U.S. Dist. LEXIS 102420 (S.D. Ind. July 28, 2014). Motion for

conditional certification of collective granted. Vanskike is referenced

as follows:

“[t]he Supreme Court has instructed the courts to construe

the terms ‘employee’ and ‘employer’ expansively under the
FLSA.” Vanskike v. Peters, 974 F.2d 806, 807 (7th Cir.
1992) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318, 326, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992)).
“[S]tatus as an ‘employee’ for purposes of the FLSA
depends on the totality of circumstances rather than on
any technical label, [and] courts must examine the
‘economic reality’ of the working relationship.” Vanskike,
974 F.2d at 808 (citations omitted). For that reason,
whether a class member signed an independent contractor
agreement should not be considered at the notice stage.

Id. at *12. (emphasis supplied)

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____________________

Arellano v. Vo, GO44393, 2012 WL 748759 (Cal. App. Mar. 7, 2012)

Dismissal during first phase of trial reversed; remanded. Vanskike is

referenced as follows:

In this case, the trial court cited to the four Bonnette

factors in making its ruling. We conclude it is unclear
whether the Bonnette test applies in the context of
determining whether a corporate officer is an “employer,”
as normally it is applied in cases concerning whether an
entity is an employer. (See Baystate Alternative Staffing,
Inc. v. Herman 163 F.3d 668, 674-79 (1st Cir. 1998)
[applying Bonnette test in deciding whether corporation
was “employer” but not in deciding whether corporate
officer was]); see also Morgan v. MacDonald 41 F.3d 1291,
1293 (9th Cir. 1994) [“The Bonnette factors are properly
applied when an individual is clearly employed by one of
several entities and the only question is which one”];
Vanskike v. Peters 974 F.2d 806, 809 (7th Cir. 1992)
[“The Bonnette factors, with their emphasis on control over
the terms and structure of the employment relationship,
are particularly appropriate where (as in Bonnette itself) it
is clear that some entity is an ‘employer’ and the question
is which one”] …

Id. at *7. (emphasis supplied)

____________________

Olivas v. A Little Havana Check Cash, Inc., 324 F. App’x 839 (11th Cir. 2009).

Split verdict at trial; remanded in part for new jury trial. Vanskike is

referenced as follows:

The district court also concluded that Mrs. Rodriguez did

not meet the “economic reality test” set forth in Bonnette v.
California Health & Welfare Agency, 704 F.2d 1465 (9th
Cir. 1983), abrogated on other grounds by Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528, 539, 105 S. Ct.
1005, 83 L. Ed. 2d 1016 (1985), which some courts apply to
determine if an employer/employee relationship exists. The
test involves inquiries into “whether the alleged employer
(1) had the power to hire and fire the employees, (2)
supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and

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 method of payment, and (4) maintained employment
records.” Id. at 1470 (internal quotation marks and
citation omitted). It is unclear whether the Bonnette test
applies in the context of determining whether a corporate
officer is an “employer,” as normally it is applied in cases
concerning whether an entity is an employer. See Baystate
Alternative Staffing v. Herman, 163 F.3d 668, 674-79 (1st
Cir. 1998) (applying Bonnette test in deciding whether
corporation was “employer” but not in deciding whether
corporate officer was); see also Morgan v. MacDonald, 41
F.3d 1291, 1293 (9th Cir. 1994) (“The Bonnette factors are
properly applied when an individual is clearly employed by
one of several entities and the only question is which
one.”); Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir.
1992) (“The Bonnette factors, with their emphasis on
control over the terms and structure of the employment
relationship, are particularly appropriate where (as in
Bonnette itself) it is clear that some entity is an ‘employer’
and the question is which one.”).

Id. at 846 n.6. (emphasis supplied)

Defense Counsel, keenly aware that their legally frivolous reliance upon Vanskike

and its Thirteenth Amendment rationale is now laid bare, obviously, and desperately,

searched for any reference to Vanskike in any non-prisoner case no matter how off point

upon a motion to dismiss.

Then, Defense Counsel cynically “threw everything against the wall to see if anything

might stick” – without disclosing procedural posture or the entirety, and context, of scant

and non-dispositive references – to obfuscate the truth in an intentional effort to mislead

this Court to misapply Vanskike to their motions to dismiss.

Moreover, none of these newly cited cases are in the Third Circuit.

And, none of these newly cited cases dispute that, in all 12 instances where

Vanskike has been relied upon, in existing law in the Third Circuit, to dismiss a well-pleaded

employment-based claim under the FLSA or other federal law (e.g., Title VII), it has been

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applied to prisoners. In an additional two (2) instances, in existing law in the Third Circuit,

Vanskike was relied upon to grant summary judgment, on such claims, against prisoners. 4

See Pl.’s Mot. for Sanctions, Ex. 1, at 3 n.3.

Vanskike has never been relied upon, let alone referenced, in existing law in the

Third Circuit, regarding any claim by a non-prisoner.

D. Defense Counsel Cannot Complain about Public Outcry Regarding

Their Reliance upon Vanskike; Vanskike “Says What It Says”

Defense Counsel acknowledge that Vanskike is readily accessible to the public.

Indeed, the articles attached to Defendant’s Objection and Motion to Strike as

exhibits, and about which Defense Counsel complain, all include, or incorporate, the

same hyperlink to Vanskike, available at Justia US Law, that Defense Counsel cite in

their Objection and Motion to Strike, at 4 n.3 5

4 See Tourscher v. McCullough, 184 F.3d 236 (3d Cir. 1999) (motion to dismiss); Northrop v.
Fed. Bureau of Prisons, No. 1:CV-08-0746, 2008 U.S. Dist. LEXIS 124931 (M.D. Pa. May 12, 2008)
(motion to dismiss); Kounelis v. Sherrer, 396 F. Supp. 2d 525 (D.N.J. 2005) (motion to dismiss);
Wofford v. Lanigan, Civil Action No. 14-5723, 2015 U.S. Dist. LEXIS 172583 (D.N.J. Dec. 28, 2015)
(motion to dismiss); Planker v. Christie, Civil Action No. 13-4464, 2015 U.S. Dist. LEXIS 6804
(D.N.J. Jan. 20, 2015) (motion to dismiss); Shabazz v. N.J. Comm’r of Dep’t of Corr., Civil Action No.
13-4968, 2014 U.S. Dist. LEXIS 68294 (D.N.J. May 19, 2014) (motion to dismiss); Banks v. Roberts,
No. 1:06-CV-01232, 2007 U.S. Dist. LEXIS 39658 (M.D. Pa. May 31, 2007) (motion to dismiss);
Wilkerson v. Samuels, 524 F. App’x 776 (3d Cir. 2013) (motion to dismiss); Carey v. Johnson, Civil
Action No. 06 - 1578, 2008 U.S. Dist. LEXIS 124933 (W.D. Pa. Feb. 19, 2008) (summary judgment);
Urbanski v. Horn, Civil Action NO. 97-4647, 1998 U.S. Dist. LEXIS 15031 (E.D. Pa. Sep. 25, 1998)
(summary judgment); Wilkerson v. Samuels, No. 3:12-CV-1462, 2012 U.S. Dist. LEXIS 186147 (M.D.
Pa. Dec. 13, 2012) (motion to dismiss); Loyal v. Lanigan, Civil Action No. 15-5769, 2016 U.S. Dist.
LEXIS 116050 (D.N.J. Aug. 30, 2016) (motion to dismiss); Stile v. Fed. Bureau of Prisons, No. 16-
3832, 2016 U.S. Dist. LEXIS 114445 (D.N.J. Aug. 25, 2016) (motion to dismiss); Stile v. United States
of America, No. 16-3832, 2016 U.S. Dist. LEXIS 145388 (D.N.J. Oct. 20, 2016) (motion to dismiss).
5 Shaun King, “The NCAA Says Student-Athletes Shouldn’t Be Paid Because the
13th Amendment Allows Unpaid Prison Labor,” The Intercept, Feb. 22, 2018 includes this hyperlink
to Vanskike. Elie Mystal, “NCAA Doubles Down On Comparing Student Athletes to Prisoners,”
AboveTheLaw.com, Feb. 23, 2018 and Charles Pierce, “No One Wins When the FBI Doubles as the
NCAA’s Enforcement Arm,” Sports Illustrated, Feb. 26, 2018 include a hyperlink to The Intercept
article, thereby incorporating the same hyperlink to Vanskike.

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 Given this, it is insulting, bizarre and borderline paranoid for Defense Counsel to

assert that well-respected authors, published by award-winning websites and magazines, 6 and

their readers “apparently” did not read Vanskike for themselves but rather are under some

sort of spell cast by Plaintiff Counsel “to confuse the intelligence of the wider public.” Id.

To the contrary, it is apparent that “the wider public” have read Vanskike for

themselves, and draw the obvious conclusion that the Thirteenth Amendment’s allowance for

involuntary servitude as punishment for crime is central to Vanskike’s holding that prisoners

are not employees under the FLSA.

Bloomberg Law came to this conclusion, and included a hyperlink to Vanskike, in an

article that stated, as a matter of fact:

Unpaid prison labor has been carved out as an exemption

from the FLSA’s “employee” status because the Thirteenth
Amendment explicitly allows involuntary, unpaid labor as
punishment for a crime.

See Porter Wells, “NCAA Attorneys Should Be Sanctioned, Former Student Athlete Says,”

Bloomberg Law, Feb. 20, 2018. As reported in that article, Defense Counsel did not respond

to Bloomberg Law’s request for comment.

The Washington Post also came to a similar conclusion in the aftermath of Berger.

Sally Jenkins, “Are college athletes the same as prisoners? These judges seem to think so,”

The Washington Post, Jan. 5, 2017.

Both The Intercept and Washington Post articles, referenced above, were “tweeted” on

February 23, 2018 by ESPN analyst, and Duke University School of Law graduate, Jay Bilas.

6 Shaun King, author of the referenced Intercept article, is currently Writer-In-Residence at

Harvard Law School’s Fair Punishment Project, among other engagements. The Intercept has won
New York Press Club Awards for Journalism.
Elie Mystal, author of the referenced AboveTheLaw.com article, is a Harvard Law School
graduate and former corporate litigator at Debevoise & Plimpton. AboveTheLaw.com is in the
American Bar Association’s Blawg (i.e., Law Blog) Hall of Fame.
Charles Pierce, author of the referenced Sports Illustrated article, is a veteran journalist
covering politics and sports in print and on television; he currently leads political coverage for
Esquire magazine. Sports Illustrated, and Esquire magazine, “need no introduction.”

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 This “wider public” read of Vanskike is consistent with how courts apply Vanskike.

Again, it bears repeating that, except for Berger and Dawson, the Third Circuit and

10 other Circuits only apply Vanskike, as grounds for dismissal of FLSA claims, to prisoners,

and, in so doing, reference the Thirteenth Amendment and acknowledge its centrality to

Vanskike’s holding.

Vanskike “says what it says.”

Defense Counsel’s complaint, at bottom, is that “the wider public” understand

Vanskike. Confronted with public offense legitimately taken at Defense Counsel’s insistence

that Vanskike be applied to student athletes, Defense Counsel now desperately appeal to the

public, and this Court, to “please believe me, not your lying eyes.”

Moreover, the only race-baiting going on here is by Defense Counsel and Defendants.7

Defense Counsel and Defendants chose to rely upon Vanskike, fully aware of the centrality of

the Thirteenth Amendment to its holding and the optics of arguing that Vanskike should be

applied to athletes after Houston Texans owner Bob McNair was roundly denounced for

comparing NFL players protesting police brutality to “inmates running the prison.” See, e.g.,

7 Defense Counsel’s claim that Plaintiff Counsel “comes perilously close to unethical vouching
when he reveals that ‘Plaintiff, and Plaintiff Counsel, are African-American,’” Defs’ Objection and Mot.
to Strike, at 1-2, is absurd.
Obviously, Plaintiff Counsel did not identify his ethnicity (which is discernible in his online bio)
to vouch for any legal argument. Rather, he did so as part of a separate, non-legal observation:
“Defense Counsel’s insistence that Vanskike be applied here is not only legally frivolous, but also
deeply offensive to all Scholarship Athletes – and particularly to African-Americans.” Pl.’s Reply in
Supp. of Mot. for Sanctions, at 14 and n.4 (emphasis supplied).
In making this non-legal observation, Plaintiff Counsel identified his ethnicity to preclude
any misimpression, from the face of the filing alone, that he “spoke out of turn,” i.e., presumed to speak,
in generality, for a group to which he does not belong.
Indeed, the articles that Defense Counsel attach to their Objection and Motion to Strike as
Exs. 1-2, authored by African-Americans, and the public outcry about which Defense Counsel complain
only confirm Plaintiff Counsel’s non-legal observation to be accurate.
Defense Counsel’s retort that “[African-American] counsel for the NCAA [] deem [Plaintiff
Counsel’s] assertions patently ridiculous and offensive,” Defs’ Objection and Mot. to Strike, at 2, is
tantamount to representatives of the Washington Redskins defending against obvious racial undertones
of their team name by pointing to some Native Americans “okay” with its use.

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Kelley D. Evans, “Texans players enraged over Bob McNair’s ‘inmates’ comment and these

are the facts,” TheUndefeated.com, Oct. 28, 2017.

Like McNair, Defense Counsel and Defendants could issue a retraction.

But, Defense Counsel and Defendants opt not to retract because they well know that

Vanskike is the only case they have ever cited – here, and in Berger and Dawson, before –

granting a motion to dismiss a well-pleaded FLSA complaint, with prejudice.

Rather than do the right thing – legally, ethically and morally – by withdrawing

their motions to dismiss relying on Vanskike and letting facts play out in the normal course of

FLSA litigation, Defense Counsel and Defendants hold out hope that they can, again, obfuscate

the truth and succeed in misleading a court to misapply Vanskike to student athletes.

CONCLUSION

By now, it is clear that Defense Counsel’s modus operandi, when seeking dismissal of

the well-pleaded FLSA complaints of student athletes against Defendants, is to obfuscate the

truth in intentional efforts to mislead courts.

Defense Counsel’s sanctionable conduct, here, is “straight from the same playbook”

that Jackson Lewis ran in Berger, and that Constangy ran in Dawson:

• falsely state “there is no ‘prisoner exception’ to the FLSA” in spite of the

clear language of the Thirteenth Amendment;
• never even acknowledge the Thirteenth Amendment when discussing Vanskike,
in moving and reply papers, in spite of its centrality to the holding in Vanskike;
• mispresent the limited applicability of Vanskike to urge its inappropriate use to
dismiss the well-pleaded FLSA complaints of non-prisoners;
• fail to disclose procedural posture of cases decided at summary judgment or trial,
which undermine, rather than support, the premise of their motions to dismiss;
• argue “facts” directly contradicted by Defendants’ own admissions and policies
published on their respective websites, which demonstrate that the Defendants
do not even believe Defense Counsel’s disingenuous arguments;

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 • falsely suggest antitrust cases, inapplicable to FLSA claims, confer the
imprimatur of federal law upon a “tradition” of NCAA-defined amateurism –
although cited antitrust precedent, O’Bannon v. NCAA, concluded that
NCAA-defined amateurism violates antitrust law and is neither sacrosanct
nor law unto itself;
• falsely suggest the FLSA countenances exemption of NCAA-defined amateurism,
and urge courts to judicially recognize (or create) such exemption and give it the
same claim preclusion effect as the Thirteenth Amendment applied to prisoners –
although no such exemption is statutorily enumerated or defined in the FLSA;
• falsely state that someone cannot be a student and an employee of Defendants –
although students in work study programs are both and, thus, the benchmark
against which student athlete employee status is properly compared;
• pound the table, project their misleading conduct onto Plaintiff Counsel, and
insult their critics (Plaintiff Counsel, and those in the media and “wider public”);
• repeat the above in successive moving and reply papers.

Defense Counsel successfully employed this playbook to mislead the courts in Berger

and Dawson. Indeed, the Thirteenth Amendment is not referenced at all in either of

those decisions in spite of its centrality to the dismissal in Vanskike, upon which both Berger

and Dawson expressly rely.

Defense Counsel should not be permitted to insulate themselves from sanctions by

reference to Berger and Dawson, which were decided in error based on Defense Counsel’s own,

prior misrepresentations. Their pattern of sanctionable conduct must end – here.

Setting aside Defense Counsel’s intentional efforts to distract and mislead this Court,

the only relevant inquiry at this stage is whether the Complaint states a prima facie claim

under the FLSA.

As this Court recognized in Razak v. Uber Techs., Inc., No. 16-573, 2016 U.S. Dist.

LEXIS 139668, at *8-9 (E.D. Pa. Oct. 7, 2016) (Baylson, J.)

“[T]he requirements to state a claim of a FLSA violation are

quite simple and straightforward.” To state a prima facie claim
under the FLSA, a plaintiff must allege that: (1) the plaintiff was
an “employee,” as defined by the FLSA; (2) the defendant was
“engaged in commerce,” as defined by the FLSA; and (3) the
plaintiff was not paid the federal minimum wage ….

(internal citations omitted).

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 The detailed Complaint, here, on its face, obviously states such a prima facie claim

under the FLSA and easily clears the low hurdle of Rule 12(b)(6). 8

Nothing Defense Counsel have offered disputes these simple truths.

Defense Counsel’s arguments – now, and in their motions to dismiss and replies in

support of motions to dismiss – do not support dismissal of this Complaint, but rather only

support the imposition of substantial sanctions against Defense Counsel and Defendants for

their pattern of intentional, and egregious, violations of Rules 11(b)(1), (2) and (3).

Respectfully submitted,

s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
Telephone: (267) 238-3835
Facsimile: (267) 238-3801
Email: paul@plmcdonaldlaw.com
Counsel for Plaintiff and the
Proposed Collective
Dated: March 5, 2018

8 Indeed, as this Court has recognized:

Courts in this district have found that plaintiffs had adequately pled
the existence of an employer-employee relationship based on far less
detailed complaints. See, e.g., Mackereth v. Kooma, Inc., 14-cv-04824,
2015 U.S. Dist. LEXIS 63143, 2015 WL 2337273, at *5 (E.D. Pa. May
14, 2015) (holding that plaintiffs sufficiently alleged employee-employer
relationship by asserting that “Defendants have employed and/or
continue to employ Plaintiff,” “that they all received paychecks from
[Defendants],” that “they worked at the addresses that correspond with
the locations of [Defendants], and by providing the dates of their
alleged employment); Diaz v. Counsins, Inc., 15-cv-06620, 2016 U.S.
Dist. LEXIS 73745, 2016 WL 3165603, at *2 (E.D. Pa. June 7, 2016)
(holding Plaintiff “sufficiently alleged a plausible claim under the
FLSA” by alleging that “‘[f]or approximately three years prior to
November 2015, Defendants employed Plaintiff at their Philadelphia
restaurant and paid him hourly wage.’”).

Razak, 2016 U.S. Dist. LEXIS 139668, at *13.

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 ORAL ARGUMENT REQUESTED

Pursuant to Local Rule 7.1(f), Plaintiff requests oral argument on Defendants’

Objection and Motion to Strike.

Respectfully submitted,

s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
Telephone: (267) 238-3835
Facsimile: (267) 238-3801
Email: paul@plmcdonaldlaw.com

Counsel for Plaintiff and the

Proposed Collective
Dated: March 5, 2018

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 CERTIFICATE OF SERVICE

I hereby certify that on March 5, 2018, the foregoing document was served on counsel by

filing via the CM/ECF system, which will send an email notice to registered parties.

s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC

Counsel for Plaintiff and the

Proposed Collective