Cohen v. Consilio LLC

Background

Bruce C. Cohen sued Consilio LLC and Consilio Services, LLC. He alleged violations of the Fair Labor Standards Act, or FLSA, and claimed that Consilio engaged in or required him to engage in the unauthorized practice of law. His complaint included a nationwide FLSA collective action for document reviewers classified as exempt from overtime requirements, a proposed Minnesota class action, declaratory claims based on Delaware and Virginia law, and claims under Minnesota wage statutes.

The court had previously dismissed the claims involving the Minnesota Professional Firms Act and unauthorized practice of law, as well as the related Delaware and Virginia declaratory claims. The court later conditionally certified Cohen’s proposed FLSA collective. The parties then settled the FLSA claim, with court approval. Cohen acknowledged that Consilio had paid all overtime wages owed in the action and all liquidated damages recoverable under the Minnesota Fair Labor Standards Act.

The remaining claims were counts V, VI, and VII, involving the Minnesota Payment of Wages Act, the Minnesota Wage Theft Act, and the Minnesota Fair Labor Standards Act. Cohen continued to seek $172,080 in average daily wage penalties and other Minnesota-law penalties, including $1,000 per alleged violation under two of the statutes. He also sought prejudgment interest, attorney’s fees, and several injunctions.

Summary judgment standard

The court explained that summary judgment must be granted when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. A fact is material if it could affect the result, and a dispute is genuine if the evidence could support a verdict for either side. The court viewed the evidence in the light most favorable to Cohen as the nonmoving party.

Minnesota Payment of Wages Act penalties

Cohen sought unpaid overtime wages, liquidated damages, and an average daily earnings penalty under the Minnesota Payment of Wages Act. Because he had already recovered the overtime wages and liquidated damages, the issue was whether he could recover the penalty himself.

The court held that the statute allows an employee to pursue wages owed but authorizes the Commissioner of the Minnesota Department of Labor and Industry to impose and collect the average-daily-earnings penalty. Cohen’s standing to pursue unpaid overtime wages did not give him a private right of action—the ability to enforce the penalty in his own lawsuit—to seek a penalty that the statute reserved to the Commissioner. The court also rejected Cohen’s argument that another statutory civil-action provision authorized him to recover the penalty.

Civil penalties under the Minnesota Wage Theft Act and Minnesota Fair Labor Standards Act

Cohen also sought civil penalties under the Minnesota Wage Theft Act and the Minnesota Fair Labor Standards Act on his own behalf and for a proposed Rule 23 class. The court held that the relevant statutes authorized the Commissioner to impose civil penalties and allowed employees to sue for unpaid wages, gratuities, and overtime compensation. Relying on Minnesota Supreme Court precedent, the court concluded that civil penalties are payable to the state rather than to private litigants.

The court rejected Cohen’s argument that a 2019 amendment changed that result. It concluded that the Commissioner alone was authorized to enforce the penalties for the wage violations at issue. The court therefore held that Cohen could not seek those statutory penalties.

Additional damages and injunctions

The court ruled that prejudgment interest was not yet owed because judgment had not previously been entered. It also stated that attorney’s fees and costs connected with the class settlement had already been approved and that no outstanding fee issue prevented summary judgment. The court further noted that Cohen had stipulated that he had received all wages due under Minnesota law.

Cohen requested several permanent injunctions directing Consilio to comply with Minnesota overtime-payment, notice, professional-firm, and legal-practice requirements. The court characterized these requests as general commands to obey the law and declined to impose them, explaining that such injunctions are disfavored.

Disposition

The court granted Consilio’s motion for summary judgment and ordered that the case be dismissed with prejudice. The court did not address Consilio’s constitutional arguments because its ruling that Cohen could not privately seek the penalties resolved the remaining penalty claims.