Case Information
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS KAREN MORALES POSADA, *
AMANDA SARMENTO FERREIRA *
GUIMARAES, WILLIANA ROCHA, *
and SARA BARRIENTOS, *
individually and on behalf of all *
others similarly situated, *
*
Plaintiffs, *
* v. * Civil No. 1:20-cv-11862-IT *
CULTURAL CARE, INC., a *
Massachusetts Corporation, *
*
Defendant. *
MEMORANDUM AND ORDER August 13, 2021
TALWANI, D.J.
Plаintiffs Karen Morales Posada, Amanda Sarmento Ferreira Guimaraes, Williana Rocha, and Sara Barrientos are foreign nationals who participated as in the federal program (under the J-1 Exchange Visitor Visa Program). Sec. Amend. Compl. (“SAC”) ¶¶ 7-10 [#43]. Defendant Cultural Care, Inc. (“Cultural Care”) sponsored Plaintiffs, coordinated their immigration process, and placed them with a host family. Id. at ¶¶ 3-4, 31, 50, 60, 71, 84. Plaintiffs allege that Cultural Care, through its failure to adequately pay them and to provide certain disclosures, has violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq ., and New York, California, New Jersey, and Illinois minimum wage, overtime and wage statement laws. Plaintiffs also allege that Cultural Care has engaged in deceptive trade practices.
Their complaint includes fourteеn separate counts. Counts 1-11 allege, as Rule 23 class actions, violations of California, New York, New Jersey, and Illinois minimum wage, overtime, and wage statement laws. SAC ¶¶ 123-47 (counts 1-4), 84 (class definition counts 1-3), 148-63 (counts 5-7), 91 (class definition counts 5-7), 164-71 (counts 8-9), 98 (class definition counts 8- 9), 172-82 (counts 10-11), 105 (class definition counts 10-11). Counts 12-13 allege, as a collective action on behalf of the named plaintiffs and any similarly situated individuals in the three years prior to filing this suit, violations of the FLSA for failure to pay minimum wages and failure to pay overtime. Id. at ¶¶ 183-212 (counts), 120 (collective action class definition). Finally, Count 14 alleges, as a Rule 23 class action on behalf of the named plaintiffs and all individuals who were sponsored by Cultural Care and worked as au pairs in the states of New York, Illinois, New Jersey, Connectiсut, and Washington during “any portion of the period commencing during the applicable statute of limitations prior to the filing of this action through the entry of final judgment in this action,” that Cultural Care engaged in deceptive trade practices in violation of the consumer protection laws of aforementioned states. Id. at ¶¶ 213-17 (count), 112 (class definition).
Pending before the court is Cultural Care’s Motion to Dismiss [#66] for lack of subject matter jurisdiction and for failure to state a claim. [1] Cultural Care argues that it is entitled to derivative sovereign immunity (asserted via Rule 12(b)(1) of the Federal Rules of Civil Procedure), that the wage and employment laws allegedly violated are preempted by federal regulations (asserted via Rule 12(b)(6)), and that Plaintiffs failed to allege facts establishing either that Cultural Care “employs” or that Cultural Care engaged in any deceptive practices (both also asserted via Rule 12(b)(6)). Def’s Mem. 2-3 [#67].
For the following reasons, the Motion to Dismiss [#66] DENIED as to Counts 1 through 13 and GRANTED IN PART and DENIED IN PART as to Count 14.
I. Background
A. Overview of Federal Statutes and Regulations
The program is a part of the J-1 Exchange Visitor Program through which foreign nationals can come live and study in the United States. 22 C.F.R. § 62 et seq . (general program regulations); id. at § 62.31 ( au pair program specific regulations). To be eligible to receive a J-1 visa, a person must be:
an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program . . . for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training . . . .
8 U.S.C. § 1101(a)(15)(J). The au pair program is open to foreign nationals between the ages of 18 and 26 and allows such individuals to reside in the United States with an American host family for up to two years, where they provide childcare services and complete coursework at a local college or university. 22 C.F.R. § 62.31(a), (c)(1), (d), (o).
Exchange Visitor Program Sponsors are “legal entit[ies] designated by the Secretary of State to conduct an exchange visitor program.” Id. at § 62.2. Organizations must apply to the Department of State (the “State Department”) to become sponsors. Id. at § 62.5. If an applicant meets “all the statutory and regulatory requirements,” the State Department may grant designation via a letter specifying what activities the applicant may undertake. Id. at § 62.6(a), (c). Designation can last up to two years, id. at § 62.6(b), 62.7(d), and sponsors can apply for redesignation in advance of the expiration. Id. at 62.7. Sponsors are responsible for choosing, in accordance with the regulatory eligibility rules, who participates in the au pair program. Id. at 62.4. Sponsors also have certain financial, insurance, and reporting obligations. Id. at § 62.8-15.
Sponsors designated by the Department of State to conduct an au pair exchange program have additional responsibilities, including limiting the au pair’s initial participation to one year; requiring the au pair to register for аnd attend educational programs; and maintaining a record of monthly (or more frequent) contacts with each au pair and host family. 22 C.F.R. § 62.31(c).
The au pair specific regulations also require sponsors to provide the au pair and the host family documentation about: the program rules, a participant’s host family and the surrounding community, the participant’s educational institution, travel arrangements, and the State Department’s “written statement and brochure” about the program. Id. at 62.31(f), (i). [2] Sponsors must also select and screen host families in accordance with State Department criteria. Id. at § 62.31(e), (h). And there are specific program monitoring and reporting obligations. Id. at 62.31(c)(5)-(9), (l), (m).
Of particular relevance here, the regulations address au pair wages and hours in a few places. First, au pair sponsors are specifically charged with limiting the number of hours per day and per week that the au pair participant is obligated to provide child care services. Id. аt 62.31(c). The sponsor may not place an au pair with a host family unless the family signs a written agreement limiting the obligation to provide child care services for the au pair to ten hours per day and forty-five hours per week. Id. at 62.31(e)(5). Sponsors also must require that au pair participants “[a]re compensated at a weekly rate based upon forty-five hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United States Department of Labor.” Id. at 62.31(j)(1). The regulations make the aforementioned hourly limitations binding on sponsors and require that receive at least one and a half days off each week, one full weekend off each month, and two weеks of paid vacation. Id. at § 62.31(j)(2)-(4). In 2009, when the federal minimum wage increased to its current rate, see 29 U.S.C. § 206(a)(1)(C), the State Department issued a notice indicating that in its view a weekly stipend of $195.75 complies with the federal minimum wage rate of $7.25/hour based on crediting room and board as 40% of an ’s compensation. [3]
B. Factual Allegations
As alleged in the Second Amended Complaint [#43] and the incorporated documents, the facts are as follows.
According to the State Department, each year approximately 3,100 au pairs work in California, 2,500 au pairs work in New York, 1,700 au pairs work in New Jersey, and 1,100 au pairs work in Illinois, and Cultural Care, a sponsor under the federal program, sponsors the visas for at least 10% of these au pairs . Id. at ¶ 13. Au pairs sponsored by Cultural Care typically work at least forty hours per week and fifty weeks per year. Id. at ¶ 14. Cultural Care instructs host families to pay a weekly stipend of at least $195.75. Id. at ¶¶ 17, 21, 23. Cultural Care advertises the annual cost to a host family for an as $19,553.25, comprised of $9,570 in fees to Cultural Care and $9,983.25 in payment to . Id. at ¶ 17. Cultural Care has distinct instructions for Massachusetts host families, who are told the following:
Paid weekly to your au pair:
Au pairs who live with a host family in Massachusetts are entitled to a weekly payment directly from their host family, that is at least the greater of either: • The minimum federal stipend of $195.75 [1]
• The MA minimum wage ($12.75/hour in 2020) times the number of hours the au pair is on duty for the week up to 40. If the au pair works between 41-45 hours during a week, you must pay time-and-a-half for the hours worked over the 40 hour limit. You may be able to deduce from the weekly pay to your au pair under the MA minimum wage laws for a meal credit of up to $42 per week and/or a lodging credit of up to $35 per week if you determine all state requirements for these credits are met.
Id. at ¶ 20 (content of footnote omitted in the original). Cultural Care does not have unique payment instructions for host families in any other state, stating instead that the minimum au pair stipend calculation “is based on a weekly stipend of at least $195.75 [1] paid to your au pair for 51 weeks, including 2 weeks of paid vacation.” Id. at ¶ 21 (content of footnote omitted in the original). Cultural Care provides the Massachusetts instructions because, “[o]n December 2, 2019, the U.S. Court of Appeals for the First Circuit issued its decision that host families must comply with Massachusetts labor laws applicable to domestic workers, including the Massachusetts Domestic Workers’ Bill of Rights.” Id. at ¶ 19.
Cultural Care communicates with au pairs regarding their maximum work hоurs, the performance of their job duties, and other terms and conditions of their employment. Id. at ¶ 24. It also retains the right to terminate an au pair ’s assignment to a host family (upon a finding, to be made exclusively by Cultural Care, that an au pair has been unable to perform his or her duties for an extended period of time), to reassign an au pair , to determine that a host family’s home is unsuitable, to terminate a host family’s participation in the program, and to mediate disputes between au pairs and host families. Id. at ¶ 24.
Cultural Care specifically requires: (1) that if the host family has an infant less than three months old in the home, a parent or other responsible adult shall be present at all times, and a parent or responsible adult shall stay in the home for the first three days of an au pair ’s assignment; (2) that the au pair ’s schedule be limited to 45 hours per week, with a maximum of 10 hours per day and no more than 5.5 days per week of work, and failure to comply will result in Cultural Care terminating the host family from the program; (3) that the host family notify Cultural Care immediately if there is a change in the composition of the family and if there are any incidents involving law enforcement; (4) that any adults residing in the host family’s home be screened by Cultural Care; (5) that the au pair perform only childcare services and light housework relating to childcare services (host families may not ask to do general housekeeping or heavy chores); (6) that the host family provide automobile insurance for au pairs who drive; (7) that the contact Cultural Care if the family wishes to take the out of the country on vacation; and (8) that the host family notify Cultural Care if the au pair needs medical attention. Id. at ¶ 24.
Cultural Care also retains the right to reject any au pair application for any reason it deems advisable and to end an ’s placement if the au pair engages in conduct that Cultural Care believes is not in the best interest of the program. Id. at ¶¶ 25-26. Cultural Care does not provide wage statements to au pairs with information about pay, deductions, and withholdings. Id. at ¶ 18. Cultural Care also does not retain records of hours worked, breaks taken, or the specific value of room and board provided for Plaintiffs and other au pairs . Id. at ¶ 27. Cultural Care does keep records of meetings between au pairs and their regional points of contact and documents regarding immigration and visa status. Id. at ¶ 28. Cultural Care requires all it places to attend four days of training prior to their placement. Id. at ¶ 29. The training is uncompensated, and until recently took place in Tarrytown, New York. Id. at ¶¶ 29, 30.
Plaintiff Karen Morales Posada (“Morales Posada”) has been an since January 2019. Id. at ¶ 7. She worked in New York from January 2019 until December 2019, and since January 7, 2020, she has been working in San Francisco, California. Id. Morales Posada attended three days of training in New York conducted by Cultural Care upon her arrival in the United States. Id. at ¶ 33. For roughly her first six months Morales Posada was paid $200 per week for every week worked and usually worked about 8.5 hours per day, five days a week (42.5 hours per week). Id. at ¶¶ 34-35. In one of those six months she worked two hours on the weekend on top of her usual 42.5 hours during the week. Id. at ¶¶ 35-36. For the second six months Morales Posada was also paid $200 per work week along with $50 for transportation. Id. at ¶ 39. During this period, she usually worked about eleven hours per day on Monday, Wednesday, and Friday and 8.5 hours a day on Tuesday and Thursday (fifty hours total). Id. at ¶ 40. From January 2020 through the start of the COVID-19 pandemic in March 2020, Morales Posada worked about forty hours per week. Id. at ¶ 45. From the start of the pandemic through the filing of the complaint, except for June 2020 when Morales Posada worked fewer hours while her host family’s children attended camp, on “many days she worked 10 hours straight with no breaks.” Id. at ¶¶ 45-46. She did receive “marginally more” payment during this period. Id. at ¶ 45. During this period she worked roughly forty-nine hours per week. Id. Cultural Care has not maintained any time records for her work, nor has Cultural Care provided any pay statements. Id. at ¶¶ 48-49.
Plaintiff Amanda Sarmento Ferreira Guimaraes (“Guimaraes”) has been an au pair since Sеptember 2018, working in Utah from September 2018 through October 2018, and then in New York since October 2018. Id. at ¶ 8. Guimaraes attended “three or four” days of training in New York conducted by Cultural Care. Id. at ¶ 53. She has been paid $200 per week for every week worked since starting as an . Id. at ¶ 54. From about September 2018 to September 2019, Guimaraes worked about nine hours per day, five days a week (forty-five hours). Id. at ¶ 55. From about September 2019 to November 2020, she worked about 6.5 hours a day, five days a week (32.5 hours). Id. at ¶ 56. From about November 2020 through the filing of the complaint here, she worked about nine hours a day, five days a week (forty-five hours). Id. at ¶ 57. She has never received any pay statements. Id. at ¶ 59.
Plaintiff Williana Rocha (“Rocha”) has worked as an in New Jersey since January 2020. Id. at ¶ 9. Rocha participated in three to four days of training in New York conducted by Cultural Care. Id. at ¶ 62. She was initially paid $195.75 for every week worked. Id. at ¶ 64. After about nine months, the weekly amount was rounded to $200 and from January 1, 2020, through filing the complaint she received $250 per week. Id. at ¶ 64. From January 2020 through March 2020 (i.e. the onset of the pandemic), she usually worked about seven hours per day, five days a week (thirty-five hours). Id. at ¶ 65. From the start of the pandemic through filing the complaint here she worked 8.5 hours per day, five days a week (forty-two hours). Id. at ¶ 66. Cultural Care has not kept time records regarding Rocha’s work, and she has not received any pay statements from Cultural Care. Id. at ¶ 69.
Plaintiff Sara Barrientos (“Barrientos”) has been an in Illinois since August 2018. Id. at ¶ 10. Barrientos attended a “several dаy” training conducted in New York by Cultural Care. Id. at ¶ 71. From August 2018 through April 2020, setting aside a two-week period at the beginning of the month, she was paid $200 per week for every week worked. Id. at ¶¶ 72, 74. She usually worked about ten hours per day, five days a week (fifty hours). Id. at ¶ 75. She “occasionally” worked a few hours on the weekend for which she “might” have been paid an extra $10 per hour. Id. at ¶ 77. From April 2020 to through June 2020, she was paid $200 for every week worked and usually worked six hours per day, five days a week (thirty hours). Id. at ¶ 80. Cultural Care has not kept time records regarding Barrientos’s work, and she has not received any pay statements from Cultural Care. Id. at ¶¶ 82-83.
Morales Posada, Rocha, Guimaraes and Barrienots had their J-1 visa—which allows each to work as an —sponsored by Cultural Care. Id. at ¶¶ 7-10.
II. Standard of Review
A. 12(b)(1) Standard
Rule 12(b)(1) is the “proper vehicle for challenging a court’s subject-matter
jurisdiction . . . .” Valentin v. Hospital Bella Vista,
B. 12(b)(6) Standard
In evaluating a motion to dismiss, this court assumes “the truth of all well-pleaded facts”
and draws “all reasonable inferences in the plaintiff’s favor.” Nisselson v. Lernout, 469 F.3d
143, 150 (1st Cir. 2006). To survive dismissal, a complaint must contain sufficient factual
material to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . [f]actual allegations must be enough to raise a right to relief
above the speculative level . . . .” Twombly,
III. Discussion
A. Derivative Sovereign Immunity
Cultural Care argues, under Rule 12(b)(1), that the court lacks subject matter jurisdiction
over all fourteen counts alleged in Plaintiffs’ complaint because Cultural Care is entitled to
derivative sovereign immunity. Def’s Mem. 18-22 [#67]. Yearsley v. W.A. Ross Const. Co., 309
U.S. 18 (1940), is the wellhead for derivative sovereign immunity doctrine. The plaintiff in the
case was a landowner whose property had been damaged by flooding that occurred as a result of
a private construction contractor’s work, and the Court held that the contractor was protected
from suit by sovereign immunity because it had been hired by the federal government. Id. at 20-
21. Yearsley and its progeny dictate that to receive this kind of protection a private party must be
performing exactly as expressly directed by the government. See Campbell-Ewald Co. v. Gomez,
Unlike the parties that successfully invoked derivative sovereign immunity in Yearsley
and Cunningham, Cultural Care was not hired by the government to perform certain tasks; it
voluntarily decided to apply to be a sponsor organization and operate an program, and a
condition оf doing that was complying with the applicable regulations. Cultural Care is thus
more akin to a company operating in a heavily regulated industry, like a bank, than a contractor
hired by the government to perform a specific task. Cf. City of Worcester v. HCA Management
Co., Inc.,
Cultural Care repeatedly emphasizes that it exists only because of, and subject to, the comprehensive commands of the federal government. The regulations, however, make clear that sponsors may be entities that have been operating for some time in other lines of business: there are regulations specifically addressing the financial information required from established entities applying to become sponsors. 22 C.F.R. § 62.5(c)(3)(i). True, the concept of an exchange visitor program “sponsor” is a creation of federal regulations, but this is not uncommon. For example, the concept of an “authorized dispenser” is created by federal regulations governing prescription drug distribution. See 21 C.F.R. § 209.2. And the fact that sponsors must run programs in accordance with exhaustive and detailed regulations is much like the situation of a federally chartered bank. See 12 C.F.R. § 5.20. Cultural Care’s arguments amount to saying that it operates in a heavily regulated area and therefore should have derivative sovereign immunity, a principle that is far broader than the court can accept. Accordingly, Cultural Care is not entitled to derivative sovereign immunity. [4]
B. Preemption
Cultural Care argues, under Rule 12(b)(6), Plaintiffs’ state law class action claims— Counts 1-11 and 14—are preempted by federal law and regulations via field preemption and conflict preemption. Def’s Mem. 22-28 [#67]. In an earlier action, Cultural Care asked the court to determine that Massachusetts wage and hour laws were preempted and could not be enforced against Cultural Care or its host families. Capron v. Off. of Att’y Gen. of Massachusetts, 944 F.3d 9, 13 (1st Cir. 2019). In that case, Cultural Care did not develop its argument as to sponsors, however, and focused instead on host families. Id. at 20 n.5. Thе First Circuit held that state wage regulations are not preempted as applied to host families, id. at 43-44, but left open the separate question of whether state wage laws were preempted as applied to sponsor organizations as not properly before it and premature. Id. at 20 n.5. Cultural Care’s preemption arguments here now seek to have this question addressed.
1. Field Preemption
In cases of field preemption, “the States are precluded from regulating conduct in a field
that Congress, acting within its proper authority, has determined must be regulated by its
exclusive governance.” Arizona v. United States,
Cultural Care points out that unlike host families, sponsors have extensive reporting, insurance, selection, au pair monitoring, and host family selection obligations. See 22 C.F.R. § 62.31. But nothing in those regulations suggest an intent to displace state wage and hour laws.
The program’s circuitous history supports this conclusion. In 1986 the U.S.
Information Agency (“USIA”) piloted the program under the Fulbright-Hays Act, Pub. L. No.
87-256 § 102, 75 Stat. 527 (1961) (codified at 22 U.S.C. § 2452). Capron,
This history certainly offers no indication of preemptive intent; it does not suggest
anything more than a very limited intent that the program continue to operate. And while
regulations can have preemptive effect, the agency must be acting within its statutory authority if
promulgating preemptive regulations. See de la Cuesta,
Even setting that aside, the First Circuit’s comprehensive analysis of the specific
au pair
program regulations reveals no intent by the State Department—or its precursor the USIA—to
displace state wage regulation in any context, see Capron,
Cultural Care briefly argues that preemption is particularly appropriate where state law is
invoked “in an area there has been a history of significant federal presence.” Def’s Mem. 23
[#67] (quoting United States v. Locke,
2. Conflict Preemption
Conflict preemption may occur “where the challenged stаte law ‘stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of Congress.’” Arizona,
“Conflict preemption is particularly difficult to show when ‘the most that can be said
about the statе law is that the direction in which state law pushes behavior is in general tension
with broad or abstract goals that may be attributed to . . . federal laws.’” Fitzgerald v. Harris, 549
F.3d 46, 53 (1st Cir. 2008) (quoting L.H. Tribe American Constitutional Law § 6-26, at 487 (2d
ed.1988)). Nevertheless, “[a] direct, facial contradiction between state and federal law is not
necessary to catalyze an ‘actual[ ]conflict’ within the doctrinal parameters of the Supremacy
Clause . . . .” KKW Enters., Inc. v. Gloria Jean’s Gourmet Coffees Franchising Corp., 184 F.3d
42, 49 (1st Cir. 1999) (quoting Securities Indus. Assoc. v. Connolly,
Cultural Care’s conflict preemption argument is premised on there being significant
federal interests. Def’s Mem. 26-28 [#67]. As noted above, there is no history of a significant
federal presence, and the First Circuit has rejected the idea that applying state wage laws to
au
pairs
impedes the government's foreign affairs interests. Capron,
The only actual conflict Cultural Care identifies is that state employment laws generally prohibit age and national origin discrimination while the regulations require selection based on those characteristics. Def’s Mem. 28 [#67]. But the First Circuit has already rejected that exact argument, id. at 25 n.9, and there is no reason to believe that the logic does not apply equally in the context of sponsor organizations. Cultural Care’s preemption argument, as to both field and conflict preemption, fails.
C. Whether Cultural Care “Employs” Au Pairs Cultural Care next argues, under Rule 12(b)(6), that Plaintiffs did not adequately allege that Cultural Care “employs” because merely following federal regulations—as Cultural Care argues is the full extent of its role and the full extent of Plaintiffs’ allegations—does not make it an employer. Def’s Mem. 28-29 [#67]. Though there is some support for the idea that merely following regulations does not make an organization an employer, the principle is not applicable here given the extent of Cultural Care’s alleged activities.
A comparison to Cultural Care’s two supporting citations bears this out. The more recent
case, Ivanov v. Sunset Pools Mgmt. Inc., involved plaintiffs who came to the United States to
work as lifeguards and subsequently sued both the lifeguard company they worked for and the
recruiting agency they worked with to arrange their immigration paperwork and initial travel
arrangements.
The other citation is from California state court and is cited for the proposition that
“where the method of performing a task is dictated by . . . regulations imposed by the
government, the principal is not exercising the manner and means of control as an employer.”
Sw. Research Inst. v. Unemployment. Ins. Appeals Bd.,
The court’s finding is in line with the conclusions of other courts that have examined this
issue. A California state court has rejected Cultural Care’s challenge to its employer status under
California wage law. Kudlacz v. Cultural Care, Inc., Case No. CGC-20-584567, Slip. Op. p. 3.
(Cal. Sup. Ct. Sept. 3, 2020) Helland Decl. Ex. 1 at 12-13 [#78-2]. A magistrate judge from the
District of Colorado also rejected a challenge to Cultural Care’s status as an employer of at the motion to dismiss stage. Beltran v. Interexchange, Inc, No. 14-CV-03074-CMA-KMT,
D. Deceptive Practices Claim
Cultural Care argues, under Rule 12(b)(6), that Count 14, the deceptive practices claims,
should be dismissed because Plaintiffs failed to include the specific consumer protection laws
that Cultural Care allegedly violated. Def’s Mem. 29-30 [#67]. But it is not necessary to cite the
specific provision allegedly violated. Skinner v. Switzer,
Cultural Care also complains that Plaintiffs asserted violations of Washington and
Connecticut consumer protection law but none of the named plaintiffs worked in those states.
Plaintiffs do not dispute that they did not work in those states, but argue that it is not necеssary to
have a named plaintiff in each jurisdiction whose laws were allegedly violated, relying on In re
Asacol Antitrust Litig.,
The First Circuit rejected the defendant’s Article III standing challenge to the inclusiоn of
unnamed plaintiffs who made purchases outside the states where the named plaintiffs made
purchases. Id. at 47-51. This superficially supports Plaintiffs’ argument, but the plaintiffs in
Asocal argued—and the court agreed—that the state laws were “parallel” to each other. Id. at 49.
The court rejected the standing challenge because it was convinced the named plaintiffs would
adequately protect the interests of unnamed plaintiffs, and it was convinced because of the
parallelism of the state laws. Id. at 49-50. Plaintiffs here made no such allegation of parallelism
in their complaint, nor did they allege that any sponsored by Cultural Care were placed
in Connecticut or Washington. Legal theories need not be fully fleshed out in comрlaints, see
Skinner,
IV. Conclusion
For the forgoing reasons: Cultural Care’s Motion to Dismiss [#66] is DENIED as to Counts 1 through 13, GRANTED regarding the Connecticut and Washington elements of Count 14, and DENIED as to the rest of Count 14.
IT IS SO ORDERED.
August 13, 2021 /s/ Indira Talwani United States District Judge
Notes
[1] Plaintiffs’ Motion to Certify a Collective Action [#98] and Cultural Care’s Motion to Strike Pre-Certification Consents [#114] are also pending and will be addressed in a separate order.
[2] Cultural Care asks the court to take judicial notice of what it claims is a copy of the State
Department brochure. Cоurts can take judicial notice of information from an official government
website that is “not subject to reasonable dispute.” Gent v. CUNA Mut. Ins. Soc'y,
[3] Cultural Care asks the court to take judicial notice of two documents, Wolkoff Decl. Exs. B, C
[#68], that Cultural Care claims are notices issued in 2007 and 2009 by the State Department in
which the department calculated the minimum weekly stipend payments owed to s under
the federal minimum wage. Def's Mem. 12 [#67]. Plaintiffs reference the notices in their
memorandum opposing the motion to dismiss and do not contest their authenticity. Pl.'s Mem. 26
[#78]. The court therefore finds it appropriate to take judicial notice of both documents. See
Watterson,
[4] Cultural Care’s claim of derivative sovereign immunity as to the FLSA claims fails for the additional reason that the FLSA waives sovereign immunity by permitting suits against public agencies. 29 U.S.C. § 216(b) (applying the FLSA’s penalties to provision to any “employer”), § 203(d) (defining “employer” to include public agencies). Cultural Care says that because au pairs are not employed by the State Department it cannot be sued under this provision. Def’s Reply Mem. 1-2 [#86]. But Cultural Care’s argument for derivative sovereign immunity is premised on the idea that it is standing in the shoes of the government by acting as a sponsor organization. Def’s Mem. 18. [#67]. It cannot then argue that it is not standing in the shoes of the government where the government has waived sovereign immunity.