Court Certifies Class in Buffalo Bills Cheerleaders Wage Theft Lawsuit, Appoints Levi & Korsinsky, LLP Co-Lead Class Counsel

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Published January 7, 2016

On January 5, 2016, the Honorable Timothy J. Drury, Erie County, NY, Supreme Court Judge, issued a decision granting the motion of four former Buffalo Bills Cheerleaders (“the Jills”) to certify a class of all Buffalo Bills cheerleaders and ambassadors since April 2008, and appointing plaintiffs as representatives for the class.   Judge Drury also appointed plaintiffs’ counsel, Levi & Korsinsky, LLP, Marlborough Law Firm, P.C.,  and Dolce Panepinto as co-lead counsel for the class, noting, the firms have “pursued the instant litigation vigorously and with skill and would be expected to continue to do so.”   The Court certified the class with respect to plaintiffs’ statutory wage and common law claims. In connection with his certification of the statutory wage claims, Judge Drury noted:
Plaintiffs have submitted evidence … that the members of the Jills cheerleader squad were required to work for the defendants not as employees, but rather as independent contractors and not paid by the Bills or the other defendants, when in fact they were employees of defendants. Given the above, the defendants would be in violation of the various causes of action the plaintiffs have alleged dealing with their wage claims. The Bills would be responsible for requiring the other employer defendants to misclassify the Jills and the NFL would be responsible for affirmatively approving the unlawful practice.
Similarly, the Court determined that plaintiffs’ common law fraud claim was appropriate for class treatment. With respect to its certification of that claim, the court stated that:
[E]ach Jill was subject to the same misrepresentation [misclassifying them as independent contractors] set forth in the Cheerleading Agreement which they were required to sign. The falsity of this Agreement is evident in the strictures of the Code of Conduct that bound them which treated them as employees. Finally, … the cheerleaders would not have agreed to the misrepresentation if they had known that they were participating in the commission of a crime by agreeing to serve as Bills cheerleaders.
With respect to plaintiffs’ retaliation claim based on the filing of the Buffalo Bills filing of an allegedly retaliatory counterclaim against plaintiffs and unnamed class members, the Court noted that class treatment was not appropriate because some members of the class may not have been aware that a counterclaim was filed against them.   The case is currently in the discovery phase. Pursuant to the Court’s decision, notice to class members of their rights with respect to the action will issue promptly.