Professional Documents
Culture Documents
16-1558
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
GILLIAN BERGER and TAYLOR HENNIG,
on their own behalf and on behalf of similarly situated persons
Plaintiff-Appellants
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, a/k/a the NCAA, and
certain NCAA Division I Member Schools, in their respective incorporated names or
in the name of their respective Boards of Regents/Trustees i
Defendant-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division
Case No. 1:14-CV-1710
The Honorable William T. Lawrence
BRIEF AND SHORT APPENDIX OF PLAINTIFF-APPELLANTS
Paul L. McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
(267) 238-3835
Counsel for Plaintiff-Appellants
DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and Cir. R. 26.1, the undersigned counsel for
Plaintiff-Appellants state:
1. The full names of every party that the undersigned attorneys represent in
this case are:
Gillian Berger
Taylor Hennig
2. The names of all law firms whose partners or associates have appeared for
the parties in the case or are expected to appear for the parties in this court are:
Paul L. McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
(267) 238-3835
3. The parent corporations and any publicly held companies that own 10 percent
or more of the stock of the parties represented by the undersigned attorneys: n/a.
Respectfully submitted,
s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC
Counsel for Plaintiff-Appellants
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES .... v
JURISDICTIONAL STATEMENT .......1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE .... 3
I.
Statement of Facts 6
II.
iii
iv
TABLE OF AUTHORITIES
CASES
ABN Amro, Inc. v. Capital Intl Ltd.,
No. 04 C 3123, 2007 U.S. Dist. LEXIS 19601 (N.D. Ill. Mar. 16, 2007) . 29
Aguilar v. United Floor Crew,
No. 14-CIV-61605, 2014 U.S. Dist. LEXIS 166468 (S.D. Fla. Nov. 26, 2014) .... 36
Alexander v. Stratus Bldg. Sols.,
No. 4:14 CV 921 CDP, 2014 U.S. Dist. LEXIS 164194 (E.D. Mo. Nov. 24, 2014) . 28
Bannon v. Edgewater Med. Ctr.,
406 F. Supp. 2d 907 (N.D. Ill. 2005) .... 29
Blanchar v. Std. Ins. Co.,
736 F.3d 753 (7th Cir. 2013) ... 27-28
Cole v. U.S. Capital, Inc.,
389 F.3d 719 (7th Cir. 2004) ... 9
Dawkins v. Picolata Produce Farms, Inc.,
No. 3:05-CV-559, 2005 U.S. Dist. LEXIS 28789 (M.D. Fla. Nov. 15, 2005) .... 36
Defender Sec. Co. v. First Mercury Ins. Co.,
803 F.3d 327 (7th Cir. 2015) ... 8, 29, 35
Diaz v. U.S. Century Bank,
No. 12-21224-CIV, 2012 U.S. Dist. LEXIS 116877 (S.D. Fla. Aug. 20, 2012) .... 36
Glatt v. Fox Searchlight Pictures, Inc.,
791 F.3d 376 (2d Cir. 2015),
modified, 2015 U.S. App. LEXIS 22977 (2d Cir. Jan. 25, 2016) iii, 2, 6, 8-11, 13, 26-28
Glatt v. Fox Searchlight Pictures Inc.,
293 F.R.D. 516 (S.D.N.Y. 2013),
vacated in part on other grounds, 791 F.3d 376 (2d Cir. 2015) .... 13
Goodrich v. Covelli Family Ltd. Pship,
No. 8:11-CV-1715, 2012 U.S. Dist. LEXIS 36363 (M.D. Fla. Mar. 19, 2012) .... 36
Lee v. City of Chicago,
330 F.3d 456 (7th Cir. 2003) ...... 9
Love v. JP Cullen & Sons, Inc.,
779 F.3d 697 (7th Cir. 2015) . 17
v
JURISDICTIONAL STATEMENT
On March 18, 2015, Plaintiffs filed an Amended Complaint in the district
court alleging, inter alia, that Defendants National Collegiate Athletic Association
(NCAA) and certain NCAA Division I Member Schools had jointly agreed to adopt
operating bylaws, and engage in patterns and practices, that misclassified Plaintiffs
and similarly situated NCAA Division I student athletes as unpaid labor, rather
than employees entitled to compensation under the Fair Labor Standards Act,
29 U.S.C. 201 et seq. (FLSA). A. 4-27, Am. Compl. (R. 119). 1
The district court had jurisdiction pursuant to 28 U.S.C. 1331 and 29 U.S.C.
216(b).
On February 16, 2016, the district court granted the defendants motions to
dismiss Plaintiffs Amended Complaint. A. 28-46, Entry on Mots. to Dismiss and
Related Mots. (Op.) (R. 238, 239).
Pursuant to Fed. R. App. P. 4(a)(1), Plaintiff-Appellants timely filed a Notice
of Appeal on March 14, 2016. (R. 240).
This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291
and 1294.
Citations to the Appendix are in the form A. __. Counsel affirms that all materials
required by Cir. R. 30(a) and (b) are included in the required Short Appendix bound with
Plaintiff-Appellants Brief, A. 1-46. A Separate Appendix is also submitted, A. 47-387.
1
Citations to the record are in the form R. __, and refer to docket numbers in the
district court as designations of record on appeal had not been completed before filing of
Plaintiff-Appellants Brief. Subsequent citations to a document in the record use either the
full title or abbreviated, common form.
II.
III.
IV.
V.
VI.
talent pool, and of the terms and conditions of student athlete participation in
NCAA-regulated sports. NCAA bylaws restrict defendant unilateral discretion in
recruiting student athletes, and in determining the eligibility, compensation,
supervision, term of participation, and discipline of student athletes, under the
threat of substantial competitive and financial penalties. A. 68-76, Pls. Mem. in
Oppn to Defs. Mots. to Dismiss and Strike, at 22-30. (R. 212).
Plaintiffs also noted that there is no amateurism exception to the FLSA, and
demonstrated that application of criteria for determining student employee status
under the FLSA points to these results: student-run group participants, no;
teaching assistants, no; residential advisers, no; work study participants, yes;
and NCAA student athletes, yes. A. 56-63, Pls. Mem. in Oppn to Defs. Mots. to
Dismiss and Strike, at 10-17.
Plaintiffs submitted supplemental authority regarding the proper test for
determining student employee status under the FLSA on July 6, 2015. A. 82-86,
Pls. Notice of Supplemental Authority. (R. 213)
On February 16, 2016, the district court granted the motions to dismiss,
concluding, inter alia, that Plaintiffs had not sufficiently plead, or elaborated upon,
a joint employment theory to have standing to sue on behalf of similarly situated
NCAA Division I student athletes attending colleges other than Penn, and that a
purported economic reality of NCAA-defined amateurism precludes a finding of
student athlete employee status under the FLSA as a matter of law. A. 28-46.
Plaintiffs filed a timely Notice of Appeal on March 14, 2016.
I.
Statement of Facts
There is no factual record, here, because there has been no discovery.
Indeed, as discussed, infra, it is well-settled that the central issues in this case
employee status and joint employment are both fact-intensive inquiries, and,
therefore, neither were ripe for determination upon defendants motions to dismiss.
In lieu of a factual record, Plaintiff-Appellants incorporate, by reference, the
Statement of the Case, supra, including citations to the Amended Complaint and
Plaintiffs briefing cross-referenced to the Appendix (including the Short Appendix
and Separate Appendix).
SUMMARY OF ARGUMENT
The district court erred in six respects, each supporting Plaintiff-Appellants
requests that this matter be remanded for further proceedings, with instructions.
First, the district court did not apply the proper test for determining student
employee status under the FLSA: the primary beneficiary test articulated by the
Second Circuit in Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015),
modified, 2015 U.S. App. LEXIS 22977 (2d Cir. Jan. 25, 2016), differentiating
academic or educational experiences from compensable work.
The district court favorably referred to the primary beneficiary test
articulated by the Second Circuit in Glatt. But the district court noted, there does
not appear to be any Seventh Circuit case on this precise issue.
In the absence of Seventh Circuit precedent for determining student employee
status, the district court relied upon a 24-year-old opinion declining to find an
employer-employee relationship between prisons and prisoners who work in prisons.
6
ARGUMENT
II.
dismiss de novo . consider[ing] the allegations in the light most favorable to the
nonmoving party and tak[ing] all well-pleaded facts and allegations as true. Cole
v. U.S. Capital, Inc., 389 F.3d 719, 724 (7th Cir. 2004) (internal citations omitted).
The Complaint, should not be dismissed unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief. Id. Moreover, [t]he issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support the claims. Id.;
see also Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003) (We review a
district courts decision to grant or deny a Rule 12(b)(1) motion to dismiss for lack of
standing de novo.)
III.
10
11
prisoners working within a prison as part of their sentences are simply not
employees under the FLSA. A. 42, Op. at 15, citing Vanskike v. Peters, 974 F.2d
806, 808-9 (7th Cir. 1992).
The district court then concluded that a purported economic reality of
amateurism in college sports trumps the literal application of any test that might
point to a finding of employee status under the FLSA, quoting Vanskike, [t]he fact
that a literal application of the four-factor test would point to a different result was
not relevant because those factors fail to capture the true nature of the relationship
between a prison and the prisoners who work in it. Id.
NCAA student athletes, of course, should not be deemed comparable to
prisoners, who, by their conduct, surrender certain legal rights and protections. 2
This said, THE NEW YORK TIMES Book Review for Indentured: The Inside Story of
the Rebellion Against the NCAA, comments on the captive nature of student athlete labor:
2
12
FLSAs employee criteria to waive the FLSAs protections, including her entitlement
to wages. See, e.g., Tony & Susan Alamo Found v. Secy of Labor, 471 U.S. 290, 301,
105 S. Ct. 1953, 85 L. Ed. 2d 278 (1985) ([T]he purposes of the Act require that it
be applied even to those who would decline its protections. If an exception to the
Act were carved out for employees willing to testify that they performed work
voluntarily, employers might be able to use superior bargaining power to coerce
employees to make such assertions, or to waive their protections under the Act.);
see also Glatt v. Fox Searchlight Pictures Inc., 293 F.R.D. 516, 534 (S.D.N.Y. 2013),
vacated in part on other grounds, 791 F.3d 376 (2d Cir. 2015) (citing Tony & Susan
Alamo Found for the proposition that while plaintiffs understood they would not be
paid . this factor adds little, because the FLSA does not allow employees to waive
their entitlement to wages.)
13
14
see also A. 382-387, Pls. Fourth Notice of Supplemental Authority (R. 236), for
further differentiation of consideration of amateurism in Rule of Reason analysis
under antitrust laws in OBannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).
For the foregoing reasons, Plaintiff-Appellants respectfully request that
this Court vacate the district courts decision, and remand, with instructions that
NCAA-defined amateurism rules neither precede nor abrogate the requirements of
federal law under the FLSA, and are irrelevant in further proceedings in this case.
market a particular brand of football college football.
The identification of this product with an academic
tradition differentiates college football from and makes
it more popular than professional sports to which it
might otherwise be comparable, such as, for example,
minor league baseball. In order to preserve the
character and quality of the product, athletes must not
be paid, must be required to attend class, and the like.
And the integrity of the product cannot be preserved
except by mutual agreement; if an institution adopted
such restrictions unilaterally, its effectiveness as a
competitor on the playing field might soon be destroyed.
468 U.S. at 101-2.
.
The most charitable reading of the passage in context suggests
no more than the plain fact that Defendants are members of a
joint enterprise, Id. at 117, requiring uniform rules and not
permitting unilateral choice to insure that there is a level
playing field. For example, if all schools mutually agreed to
pay student athletes, or had to in order to comply with federal
law, then there would be no anti-competitive consequences.
But, if an institution adopted a restriction on student athlete
pay unilaterally, and other schools did not join in such
restriction, the institution adopting the restriction unilaterally
might see its effectiveness as a competitor on the playing field
destroyed, because of its self-imposed recruiting
impediment. Instead, all schools mutually agreed to the
current restriction on student athlete pay.
A. 64-65, Pls. Mem. in Oppn to Defs. Mots. to Dismiss and Strike, at 18-19.
16
V.
17
18
20
21
NCAA Division I Manual, student athletes are subject to much stricter supervision
by full-time college staff than work study participants. See A. 18, Am. Compl. 53.
For example, although there is no factual record here, because there has been
no discovery, Plaintiff-Appellants submitted the National Labor Relations Board
(NLRB) hearing testimony of former Northwestern University (Northwestern)
quarterback Theodis Kain Colter, In re Northwestern Univ. and College Athletes
Players Association (CAPA), Case No. 13-RC-121359, NLRB, Feb. 18, 2014
(Colter Test.). See Ex. B to Pls. Third Notice of Supplemental Authority (R. 230).
A. 87-381.
Colters testimony details Defendant Northwesterns rigorous control on and
off the field, year round, of student football athletes, and substantial responsibilities
and duties that student football athletes have to Northwesterns football program.
Colter describes a big operation of full-time, well-paid college staff supervising
student football athletes, including a head coach and more than 10 assistant coaches,
a separate strength and conditioning staff, and still more support staff. A. 130-134,
Colter Test. 62:21-66:8. Members of this college staff determine, and distribute,
official schedules that detail student football athletes daily duty to the program
throughout the year. A. 135-136, 154-155, Colter Test. 67:21-68:2, 86:25-87:15.
Student football athletes are not permitted to schedule academic classes that conflict
with their daily duties to the football program. A. 205-206, Colter Test. 137:3-138:2.
Football is the priority:
22
For its part, the district court acknowledged that, 10b03(e) is not
dispositive of the issue of the existence of an employer-employee relationship
between colleges and NCAA student athletes. A. 44, Op. at 17.
Indeed, the district court noted, in declining to defer to 10b11(b) regarding
determination of employee status for trainees or students: 8
In Skidmore [v. Swift & Co., 323 U.S. 134 (1944)], the
Supreme Court established the rule that nonregulatory
guidelines of agencies such as the DOL, while not
controlling upon the courts by reason of their authority,
do constitute a body of experience and informed judgment
to which courts and litigants may properly resort for
guidance. The weight of such judgment in a particular
case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power
to control. 323 U.S. at 140.
A. 38, Op. at 11 n.11.
The DOL replicated 10b11(b) guidance in DOL, Wage and Hour Div., Fact Sheet #71
(Apr. 2010):
8
1. the training, even though it includes actual operation of the facilities of the
employer, is similar to that which would be given in a vocational school;
2. the training is for the benefit of the trainees or students;
3. the trainees or students do not displace regular employees, but work under
their close observation;
4. the employer that provides the training derives no immediate advantages
from the activities of the trainees or students, and on occasion operations
may actually be impeded;
5. the trainees or students are not necessarily entitled to a job at the conclusion
of the training period; and
6. the employer and the trainees or students understand that the trainees or
students are not entitled to wages for the time spent in training.
24
ProPublica reported:
[T]he Labor Department has not made enforcing its guidelines
for unpaid internships a priority .
Instead of proactively investigating employers that advertise
illegal internships, the department has decided to rely on
complaints even though the agency admits unpaid interns
25
To sum up, the district court declined to defer to a known position taken by
the DOL, i.e., that 10b11(b) ought to be applied to determine employee status for
trainees or students, but then credited assumed and unknown DOL considerations
related to 10b03(e) after acknowledging that 10b03(e) is not dispositive.
But, in the end, the district courts internal inconsistencies and assumptions
should be of little, or no, moment, because the Second Circuit in Glatt demonstrates
that the proper means for determining if there is an employer-employee relationship
under the FLSA is not to defer to the DOL Field Operations Handbook, which
guidance does not reflect todays economy, 10 but rather to apply developed facts to
26
the employee criteria set forth in the primary beneficiary test articulated by the
Second Circuit in Glatt.
Here, a factual record has yet to be developed because there has been
no discovery. 11
For the foregoing reasons, Plaintiff-Appellants respectfully request that
this Court vacate the district courts decision, and remand, with instructions to apply
the primary beneficiary test articulated by the Second Circuit in Glatt, rather than
defer to, or make assumptions about, the DOL Field Operations Handbook, in
further proceedings in this case.
VI.
employee under [federal law] can be determined only upon careful analysis of the
myriad facts surrounding the employment relationship in question, that ordinarily
this cannot be done from the face of the complaint, and, thus, a motion to dismiss
should be denied as premature. Miller v. Advanced Studies, Inc., 635 F. Supp. 1196,
1200 (N.D. Ill. 1986) (emphasis in original); 12 see also Blanchar v. Std. Ins. Co., 736
This said, even at this preliminary stage before there has been discovery necessary
to apply to the employee criteria set forth in the primary beneficiary test, it seems apparent
that the ultimate application of this test to students on campus points to these results:
student-run group participants, no; teaching assistants, no; residential advisers, no;
work study participants, yes; and NCAA student athletes, yes. See, e.g., A. 56-63,
Pls. Mem. in Oppn to Defs. Mots. to Dismiss and Strike, at 10-17; see also A. 82-85,
Pls. Notice of Supplemental Authority.
11
The Miller court allowed for an extraordinary exception that did not apply in that
case, and does not apply in this case: unless the complaint happens to allege facts which
clearly preclude the possibility that the plaintiff is an employee. Id.
12
27
F.3d 753, 756 (7th Cir. 2013) (The evaluation of a FLSA claim requires a thorough,
fact-intensive analysis of the employees employment duties and responsibilities.);
Alexander v. Stratus Bldg. Sols., No. 4:14 CV 921 CDP, 2014 U.S. Dist. LEXIS
164194, at *1 (E.D. Mo. Nov. 24, 2014) ([T]he question of whether an employeremployee relationship exists is fact-intensive and cannot be determined at the
current stage in the proceedings. The motion to dismiss will be denied.)
Indeed, Glatt and Schuman were decided on appeal from summary judgment.
Here, again, a factual record has yet to be developed because there has been
no discovery.
For the foregoing reasons, Plaintiff-Appellants respectfully request that
this Court vacate the district courts decision, and remand, because the grant of
motions to dismiss, before development of a factual record, was premature.
VII.
Here, this mainly relates to the issue of joint employment, or the standing
that Plaintiff-Appellants, who attend(ed) Defendant Penn, have to sue on behalf of
fellow NCAA Division I student athletes attending other defendant schools.
The district court determined that Plaintiff-Appellants lacked such standing
because the legalese of joint employment is not used in the Amended Complaint.
A. 32, Op. at 5.
But, the Amended Complaint refers to defendants as having jointly agreed
on operating bylaws, i.e., NCAA Division I Bylaws, of which the defendants
28
cannot feign ignorance and from which, as discussed, infra, it is reasonable to draw
an inference of joint employment. See, e.g., A. 18, Am. Compl. 56.
These bylaws are referenced more than 40 times in the Amended Complaint.
In their opposition to dismissal, Plaintiff-Appellants noted:
The district court may also consider documents quoted or
cited in, and integral to, the Amended Complaint, or
subject to judicial notice as public documents. See, e.g.,
ABN Amro, Inc. v. Capital Intl Ltd., No. 04 C 3123, 2007
U.S. Dist. LEXIS 19601 at * 10-11, (N.D. Ill. Mar. 16,
2007) (in evaluating a Rule 12(b)6) motion to dismiss, a
district court may consider documents referred to in the
complaint and central to plaintiffs claim, and take
judicial notice of matters of public record); see also
Bannon v. Edgewater Med. Ctr., 406 F. Supp. 2d 907, 919
n.16 (N.D. Ill. 2005) (in resolving a motion to dismiss, a
district court is entitled to take judicial notice of matters
in the public record, including, for example, newspaper
and magazine articles).
A. 51, Pls. Mem. in Oppn to Defs. Mots. to Dismiss and Strike, at 5 n.1.
Moreover, as the district court acknowledged, nothing prevents a plaintiff
opposing dismissal from elaborating on the complaint or even attaching materials to
an opposition brief illustrating the facts the plaintiff expects to be able to prove,
citing Defender Sec. Co., 803 F.3d at 335. A. 32-33, Op. at 4-5.
In fact, in their opposition to dismissal, Plaintiff-Appellants elaborated on
their joint-employment theory, thoroughly referencing and discussing NCAA bylaws
setting forth the defendants joint agreement to share control of the student athlete
talent pool, and of the terms and conditions of student athlete participation in
NCAA-regulated sports, including NCAA bylaws that:
29
13
30
14
15
31
16
17
32
19
34
Defendants moved to strike pursuant to Fed. R. Evid. 408. But, the communication
referenced in Amended Complaint 61-65 neither initiated settlement discussions, nor
occurred during such discussions rather, it occurred after the NCAA declined to engage in
such discussions. Moreover, the factual assertions contained therein cannot prejudice
defendants because these assertions responded to a defense that defense counsel continues
to claim in public filings in this case, i.e., DOL Field Operations Handbook 10b03(e).
The district court struck these allegations, but not in relation to Fed. R. Evid. 408.
Instead, the district court complained that the drafting appeared strange. A. 29, Op. at 2.
But, the district court later referenced these same allegations in a manner suggesting
that it accepted that such allegations could be, and had been, made in good faith and,
therefore, ought to have been accepted as true in consideration of motions to dismiss. A. 44,
Op. at 17 n.14.
Consistent with the district courts citation to Defender Sec. Co., 803 F.3d at 335,
Plaintiff-Appellants also thoroughly discussed differences between student-run groups and
NCAA-regulated sports in their opposition to dismissal, see A. 51-56, Pls. Mem. in Oppn to
Defs. Mots. to Dismiss and Strike, at 5-10, such that these allegations in the opposition to
dismissal are also properly incorporated into the Amended Complaint and also ought to
have been accepted as true in consideration of motions to dismiss.
35
Because, [t]he inquiry into joint employment for FLSA purposes is flexible
and fact-intensive . such an inquiry is ill-suited for consideration on a motion to
dismiss. Aguilar v. United Floor Crew, No. 14-CIV-61605, 2014 U.S. Dist. LEXIS
166468, at *8-10 (S.D. Fla. Nov. 26, 2014). 21
Here, again, a factual record has yet to be developed because there has been
no discovery.
For the foregoing reasons, Plaintiff-Appellants respectfully request that
this Court vacate the district courts decision, and remand, because the grant of
motions to dismiss, before development of a factual record, was premature.
The Aguilar court relied on sister courts in the Eleventh Circuit, including Diaz v.
U.S. Century Bank, No. 12-21224-CIV, 2012 U.S. Dist. LEXIS 116877, at *9-10 (S.D. Fla.
Aug. 20, 2012) (denying motion to dismiss for lack of a factual foundation for establishing a
joint employment relationship, noting that [a]n exhaustive joint employment analysis
would . . . be premature at this stage where Plaintiffs have submitted a plausible claim);
Goodrich v. Covelli Family Ltd. Pship, No. 8:11-CV-1715, 2012 U.S. Dist. LEXIS 36363, at
*5 (M.D. Fla. Mar. 19, 2012) (denying motion to dismiss and declining to address[] the
fact-intensive issue of joint employment [before] giving the parties the opportunity to
conduct discovery . . . [and] giv[ing] Plaintiffs an opportunity to prove their case); and
Dawkins v. Picolata Produce Farms, Inc., No. 3:05-CV-559, 2005 U.S. Dist. LEXIS 28789
(M.D. Fla. Nov. 15, 2005) (explaining that determining employer and joint employer
status involves fact intensive inquiries that need to be developed, and are not readily
amenable to resolution on a motion to dismiss).
21
36
CONCLUSION
For all the foregoing reasons, the district courts decision should be vacated
and the case remanded for further proceedings, with instructions.
Respectfully submitted,
s/ Paul L. McDonald
Counsel for Plaintiff-Appellants
Paul L. McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
(267) 238-3835
37
CERTIFICATE OF COMPLIANCE
I, Paul L. McDonald, hereby certify that Plaintiff-Appellants Brief complies
with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), because this brief
contains 10,200 words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC
Counsel for Plaintiff-Appellants
38
39
CERTIFICATE OF SERVICE
The undersigned counsel for Plaintiff-Appellants hereby certifies that on
March 16, 2016, a true and correct copy of the foregoing Plaintiff-Appellants Brief
and Short Appendix, and Plaintiff-Appellants Separate Appendix, were served on
counsel by filing via the CM/ECF system, which will send an email notice to
registered parties, and by U.S. Postal Service Priority Mail to the following counsel of
record for Defendant-Appellees:
Lisa (Lee) A. Schreter
Littler Mendelson P.C.
3344 Peachtree Rd., NE, Ste. 1500
Atlanta, GA 30326
Paul DeCamp
Jackson Lewis P.C.
10701 Parkridge Blvd., Ste. 300
Reston, VA 20191
Danuta B. Panich
Ogletree Deakins P.C.
111 Monument Cir., Ste. 4600
Indianapolis, IN 46204
Lawrence Peikes
Wiggin and Dana LLP
281 Tresser Blvd.
Stamford, CT 06901
Donald S. Prophete
Constangy, Brooks, Smith
& Prophete LLP
2600 Grand Blvd., Ste. 750
Kansas City, MO 64108
s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC
Counsel for Plaintiff-Appellants
40
41