Cohen v. Consilio LLC

Background

Bruce C. Cohen sued Consilio LLC and Consilio Services, LLC, concerning his work as a document reviewer in Consilio’s Minneapolis office. Cohen alleged that Consilio changed its overtime policy after August 5, 2019, and classified document reviewers as exempt from overtime requirements under the Fair Labor Standards Act (FLSA). He also alleged that Consilio’s document-review operations involved unauthorized practice of law, fee-splitting, an association between attorneys and non-attorneys, and non-attorney control over attorney work.

The original complaint asserted a nationwide FLSA collective action in Count I. Counts II through IV asserted claims based on unauthorized practice of law under Minnesota, Delaware, and Virginia law. Cohen later moved to amend the complaint to add a negligence claim and a fraudulent-inducement claim, including claims purportedly brought for the public under Minnesota’s private attorney general statute.

Personal Jurisdiction

The court concluded that it had general personal jurisdiction over both Consilio entities. It relied in part on their registration to do business in Minnesota and appointment of an agent for service of process. Because general jurisdiction existed, the court said Consilio’s separate argument about specific jurisdiction was moot.

Standing and Dismissal

Consilio argued that Cohen lacked standing to bring the unauthorized-practice claims. Standing is the constitutional requirement that a plaintiff show an actual or imminent injury, a connection between that injury and the defendant’s conduct, and a likelihood that the requested relief would address the injury.

The court held that Cohen had not alleged an actual or imminent injury. No criminal, civil, or professional-discipline charges or investigations were pending against him or the other document reviewers. The court also rejected Cohen’s argument that his self-report to the Minnesota Office of Lawyers Professional Responsibility created an imminent injury. That office had declined to investigate while the lawsuit was pending, and any later complaint depended on Cohen’s future decision to file one.

The court further held that Minnesota statutes could not create constitutional standing where Cohen had not suffered the required injury. Supplemental jurisdiction likewise could not cure the lack of standing. As a result, the court dismissed Counts II, III, and IV of the original complaint without prejudice. The opinion also states that proposed Count VIII was futile because of the same lack of standing.

Proposed Amendments

The court denied Cohen’s motions to amend. The proposed fraudulent-inducement claim was futile for several reasons. First, Cohen did not explain how a private conversation during his hiring process benefited the public, as required for a claim under Minnesota’s private attorney general statute. Second, he did not allege facts supporting actual damages. Third, he did not adequately plead reliance because he did not allege that he turned down other employment opportunities based on Consilio’s statements.

The court also denied amendment because of prejudice to Consilio. Cohen knew the factual bases for the proposed claims when he filed the original complaint but waited approximately six months to seek amendment, after Consilio had answered, briefed, and argued its dismissal motion.

Disposition

The order denied the motions to amend, granted Consilio’s motion to dismiss in part, and dismissed Counts II, III, and IV without prejudice. The conclusion did not state that Count I was dismissed.