Court Grants Motion Expanding MSA Models Independent Contractor Misclassification Class Action to Include Unjust Enrichment Claim for All MSA Models and MSA COO Bill Ivers as an Individual Defendant

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. 

On January 7, 2016, Judge Francis granted Plaintiff Eva Agerbrink’s motion to amend her class and collective action complaint to: (1) add MSA Models Chief Operating Officer Bill Ivers as an individual defendant; (2) add a class claim of unjust enrichment concerning MSA’s liquidated damages provision in its modeling contract between the company and its models; and (3) expand the scope of the putative class action from only MSA fit models to include all types of MSA models (i.e. fashion, lifestyle, showroom) with respect to the class claim for unjust enrichment.

As a result, the putative class in this litigation has been expanded from Fair Labor Standards Act and New York Labor Law wage and hour misclassification claims for all MSA fit models (from September 2008 to the present), to include all types of MSA models (i.e. fit, fashion, showroom, and/or lifestyle) concerning class claims for unjust enrichment related to MSA’s allegedly unenforceable contractual liquidated damages provision (from January 2000 to the present).

Specifically, with respect to the claim for unjust enrichment, the Court held:

“The crux of this claim -- that the defendants have been unjustly enriched by retaining payments from clients and owed to the plaintiff for work performed -- is that the defendants are not entitled to these monies because the MSA Contract’s liquidated damages provision is unenforceable. The Second Amended Complaint contains a number of assertions that plausibly suggest that the liquidated damage provision is an illegal penalty and therefore invalid, namely, that it is not ‘a reasonable measure of anticipated loss’ but rather is ‘a means by which Defendants . . . intimidate MSA models into compelled continued performance.’"

Accordingly, Plaintiff’s amended complaint alleges that, because this provision is unenforceable under New York law, all monies withheld by MSA under this provision from any MSA fit, fashion, lifestyle, and/or showroom model, since January 2010, must be paid back to these models.

A copy of the Court’s decision is available here.

Previously, on June 16, 2015, Judge Oetken denied the Defendants’ motion to dismiss with respect to Plaintiff’s wage and hour FLSA and New York Labor Law claims.  In addition, on October 27, 2015, Judge Francis ordered Defendants to provide a corrective notice to members of the putative class following his review of an email that MSA Chief Operating Officer William Ivers sent to members of the putative class regarding 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. 


The Dugger Law Firm, PLLC Files Independent Contractor Misclassification Class Action Against MSA Models and Susan Levine

On September 26, 2014, 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 complaint alleges that MSA and 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 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, reimbursements for illegal deductions, as well as additional associated liquidated damages. 

In addition, Ms. Agerbrink alleges that MSA and Levine are operating as an unlicensed employment agency in violation of New York General Business Law § 172, and therefore, cannot enforce their modeling employment agreement with respect to all, or a portion of, the “commissions” that MSA and Levine deduct from their fit models’ wages.  The complaint further alleges that MSA Models’ deductions for “commissions” are illegal wage deductions in violation of New York Labor Law § 193.

Ms. Agerbrink seeks certification of a class of all MSA fit models from September 2008 through the resolution of the lawsuit.  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.