On September 26, 2014, The Dugger Law Firm, PLLC, on behalf of Eva Agerbrink, filed a class and collective action complaint in New York federal court against modeling agency MSA Models and MSA Models owner Susan Levine.
The amended complaint alleges that MSA Models and Susan Levine have misclassified their “fit models” as independent contractors in violation of the Fair Labor Standards Act and the New York Labor Law.
Ms. Agerbrink, individually and on behalf of all similarly situated MSA fit models, seeks payment of minimum wages, payment of unpaid earned wages, liquidated damages with respect to minimum wages that were eventually paid but were not paid promptly, damages for violations of New York Labor Law recordkeeping requirements, and reimbursements for illegal deductions, as well as additional associated liquidated damages.
Ms. Agerbrink also sought declaratory relief, under the Declaratory Judgment Act, that MSA Models is operating as an unlicensed employment agency in violation of New York General Business Law § 172, and therefore, could not prospectively enforce its modeling employment agreement with respect to all, or a portion of, the 20% commission it deducts from fit models’ wages.
MSA Models filed a motion to dismiss the amended complaint on January 2, 2015.
On June 16, 2015, Judge Oetken issued an order denying the majority of Defendants’ motion. Judge Oetken held that all of Ms. Agerbrink’s class and collective action wage and hour claims would move forward to discovery.
Judge Oetken determined, however, that Ms. Agerbrink could not pursue a Declaratory Judgment Act claim regarding the prospective unenforceability of MSA Model’s contractual commission of 20%.
As a result, Ms. Agerbrink’s class action wage and hour claims will move forward to discovery on behalf of all MSA fit models employed by MSA Models at any time from September 26, 2008 through the conclusion of the litigation.
The case is Agerbrink v. Model Service LLC d/b/a MSA Models, No. 14 Civ. 7841, in the United States District Court for the Southern District of New York.