Learing v. Anthem Companies, Inc., The

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Christine Learing, individually and on  Civ. No. 21-2283 (JWB/DJF)       
behalf of all others similarly situated,                                 

          Plaintiff,                                                     
                                           ORDER ON                      
v.                                 SUMMARY JUDGMENT AND                  
                                     CLASS CERTIFICATION                 
The Anthem Companies, Inc.; Amerigroup                                   
Corporation; and Amerigroup Partnership                                  
Plan, LLC,                                                               

          Defendants.                                                    


Caitlin L. Opperman, Esq., Michele R. Fisher, Esq., and Rachhana T. Srey, Esq., Nichols 
Kaster PLLP, counsel for Plaintiff.                                       

Brett Christopher Bartlett, Esq., Kevin Michael Young, Esq., Lennon Haas, Esq., and 
Thomas J. Posey, Esq., Seyfarth Shaw LPP, counsel for Defendants.         


    This is a dispute over alleged misclassification of utilization review nurses as 
exempt from Fair Labor Standards Act (“FLSA”) overtime pay requirements. Plaintiff 
Christine Learing seeks to represent an FLSA collective and Rule 23 class of similarly 
situated utilization review nurses in Minnesota challenging their exemption status. The 
Defendants are the Anthem Companies, Inc. and its subsidiaries Amerigroup Corporation 
and Amerigroup Partnership Plan, LLC (collectively “Anthem”). Anthem hires nurses to 
review medical authorization requests submitted by healthcare providers to determine 
whether the services they have provided were medically necessary and therefore eligible 
for coverage—a process known as medical management or utilization review. 
    Anthem contends that Learing and the utilization review nurses she seeks to 
represent were properly classified as a category of employees ineligible for overtime pay 

(“exempt”) and moves for summary judgment. Learing also seeks summary judgment. 
She contends that utilization review positions like hers should not be exempt from 
overtime pay, and that Anthem has shown no evidence that its overtime exemption 
decision, denying employees their overtime pay, was made in good faith. Anthem also 
moves to decertify the previously certified FLSA collective. Learing, in turn, moves to 
certify a Rule 23 class asserting similar claims under Minnesota law. For the reasons 

below, Learing’s motions are granted, and Anthem’s motions are denied.    
                         BACKGROUND                                      
    Health insurance companies, like Anthem, employ utilization reviewers to confirm 
or deny the necessity of medical treatments. These decisions are based on whether the 
treatments align with established medical care standards, using clinical guidelines to 

decide whether insurance coverage is approved or denied. In Minnesota, Anthem has 
hired various workers to perform utilization review work for Medicaid plans as part of a 
contract with Blue Cross Blue Shield. Some positions require the reviewer to be a 
licensed practical nurse (“LPN”) and are paid hourly, while others require licensure as a 
registered nurse (“RN”) and are paid a salary.                            

    This case involves the salaried RN utilization review positions at Anthem—
specifically the roles of Nurse Medical Management I, II, Senior, and Lead, among others 
with similar titles. These Nurse Medical Managers (“NMMs”) handle authorization 
requests, which are directed to specific review teams that handle different types of 
requests. Each request assigned to an NMM involves reviewing clinical data in Anthem’s 
digital system, reading relevant clinical guidelines, and comparing whether the medical 

documentation meets the necessary medical criteria. If the criteria are present, the NMM 
grants authorization; if not, the decision is escalated to a licensed physician Medical 
Director for final determination.                                         
    Utilization review skills are not taught in nursing school but are acquired through 
on-the-job orientation, training, and experience. Anthem’s training for NMMs includes 
how to use the company’s digital systems to handle requests, as well as mock exercises 

on applying medical necessity criteria. Newly hired NMMs are also paired with 
experienced NMMs for mentorship and additional training.                  
    NMMs at Anthem must follow Anthem’s step-by-step process for conducting 
utilization review, no matter the specific team to which they are assigned or the substance 
of the authorization request. While the nature of each request determines the clinical 

guidelines that must be considered, the process of comparing the request’s underlying 
medical records to the applicable guidelines does not vary. Each approval request is 
routed through Anthem’s review framework using Anthem’s digital system.   
    The National Committee for Quality Assurance (“NCQA”), an accrediting 
organization, sets industry standards for managed care organizations that perform 

medical necessity reviews. Anthem has tailored its utilization management policies and 
procedures to satisfy NCQA requirements across a range of requirements, including 
program structure, clinical criteria, staff qualifications, turnaround time for requests, and 
case documentation. NCQA requires at least LPN-level credentials for utilization review 
tasks. Although Anthem previously mixed LPNs and RNs in review teams, it now 
differentiates roles, reserving certain authorization tasks for LPNs that do not demand 

nursing judgment.                                                         
    Anthem’s contract with Blue Cross Blue Shield mandates that the company’s 
utilization management program comply with NCQA standards. To maintain this 
compliance, Anthem conducts regular audits of its utilization review processes. These 
audits assess how well NMMs follow proscribed steps for processing requests, the 
accuracy of their decisions, and their productivity. Part of this assessment involves 

mandatory Inter-Rater Reliability (“IRR”) tests to ensure consistent application of 
medical necessity guidelines across reviewers. The IRR presents a series of short case 
summaries and asks a true or false question of whether the member in each case meets 
the criteria for the requested service. (See Doc. No. 150-21.) NMMs scoring below 90% 
on an IRR assessment face corrective action.                              

    NMMs’ workload sometimes demands more than 40 hours in a week. This lawsuit 
seeks overtime compensation for those additional hours worked.            
                          DISCUSSION                                     
I.   Certification of Collective Proceedings                              

    Whether to certify or decertify a collective proceeding is discretionary. See 
Bouaphakeo v. Tyson Foods, Inc., 

 (8th Cir. 2014) (citations omitted). 
Whether collective proceedings are warranted depends on first understanding the nature 
of the claims presented, and then considering whether common issues compel their 
resolution. See, e.g., Frank v. Gold’n Plump Poultry, Inc., Civ. No. 04-1018 (PJS/RLE), 

, at *4–5 (D. Minn. Sept. 24, 2007). Analyzing the case at the 
appropriate level of abstraction is key because “[i]f one zooms in close enough on 

anything, differences will abound.” Id. at *4. But “[a]ny competently crafted class 
complaint literally raises common questions.” Wal-Mart Stores, Inc. v. Dukes, 

 (2011).                                                          
    The core issue in this overtime pay dispute is whether utilization review work 
performed by NMMs at Anthem falls under exempt categories, meaning not qualifying 
for overtime pay. Learing argues that collective proceedings are proper because NMMs 

are uniformly governed by Anthem’s overarching policies, training protocols, and 
performance expectations, regardless of their specific areas of work. On the other hand, 
Anthem argues against collective proceedings, emphasizing the diverse work settings and 
case complexities faced by NMMs based on the nature of their assigned authorization 
requests and corresponding medical criteria.                              

    The resolution here hinges on examining Anthem’s employment policies at a 
structural level rather than individual NMM performance particularities. Despite some 
differences in NMMs’ assignments, all operate under a common employment framework 
that outlines their main duties, individual authority levels, and job performance standards. 
Consequently, for FLSA certification purposes, NMMs are deemed similarly situated 

within Anthem’s employment structure. For class certification, the common questions 
about Anthem’s employment framework for NMMs and related roles predominate over 
individual discrepancies.                                                 
    A.   Defendants’ Motion to Decertify FLSA Collective                 

    The FLSA permits collective action when the plaintiff presents a group of 
similarly situated employees who “suffer from a single, FLSA-violating policy, and when 
proof of that policy or of conduct in conformity with that policy proves a violation as to 
all the plaintiffs.” Bouaphakeo, 

 (quotation omitted); 

(b). 
    To decide whether FLSA claimants are similarly situated, courts consider: (1) the 
extent and consequences of disparate factual and employment settings, (2) the available 
defenses that appear to be individual to each plaintiff, and (3) fairness and procedural 

considerations. See Cruz v. Lawson Software, Inc., 

 (D. Minn. 
2011) (quotation omitted). After discovery, plaintiffs must show that the claimants are 
similarly situated—though not necessarily identical—to proceed with an FLSA collective 
action. See Frank, 

, at *2–3 (citations omitted); Cruz v. TMI Hosp., 
Inc., Civ. No. 14-1128 (SRN/FLN), 

, at *14 (D. Minn. Oct. 30, 2015) 

(citing Nerland v. Caribou Coffee Co., 

 (D. Minn. 2007)). The 
decertification decision falls within a court’s discretion. 

 (citation omitted). 
         1.   Disparate Factual and Employment Settings                  
    An inherent tension exists between Anthem’s summary judgment argument—that 
all NMMs fit within either the administrative or learned professional overtime 

exemption—and its opposition to collective proceedings, citing differences in NMM 
subject areas and work settings. This contradiction highlights the need to evaluate at the 
appropriate level of abstraction. The key question is whether the plaintiffs’ differences 
are substantial enough to outweigh their common experiences under the alleged FLSA-
violating practices. See White v. 14051 Manchester Inc., 

 (E.D. Mo. 
2014) (quotation omitted). On balance here, the similarities of Anthem’s practices with 

respect to NMMs outweigh the individual variations among NMMs that Anthem 
identifies. The employment policies that oversee all NMMs establish a significant 
structural similarity across positions, despite variations in job settings or medical areas. 
    The structural similarity across the NMM positions is apparent from the record. 
Anthem uses standardized job descriptions for each level of NMM position that do not 
vary based on the substance of the authorization requests that the position will process. 

The job descriptions in the record for the NMM I, NMM II, and NMM Lead positions are 
all but identical in their description of the positions’ primary duties. (See generally Doc. 
No. 150-1.) All NMMs are required to follow Anthem’s policies and procedures, 
regardless of their practice group or the type of authorization requests they handled. What 
clinical guidelines were used by which NMMs, substantive differences between the 

guidelines, or that certain authorization requests were more or less complex than others 
are all secondary to the commonalities of the NMM jobs’ structure, qualifications, 
procedures, and scope of authority. All NMMs can approve requests but none can deny. 
All are subject to the same performance evaluation metrics and productivity expectations.  
    Anthem’s contention that differences in case types, job complexities, and 

individual testimonies on work volume and setting make collective adjudication 
unfeasible is belied by the overarching similarities in job structure, qualifications, 
procedures, and authority scope shared among NMMs. Although individual NMMs may 
experience variations in their day-to-day duties, these do not subvert the central question 
of whether their primary job duty of conducting utilization review constitutes nonexempt 
work under the FLSA. Thus, despite some individual variability, NMMs are similarly 

situated in Anthem’s utilization management program and all face the same alleged 
FLSA violation: their work was misclassified as exempt from overtime pay.  
         2.   Anthem’s Individualized Defenses                           
    Anthem asserts that two FLSA overtime exemptions apply here to all NMM 
plaintiffs—the administrative or learned professional overtime exemption. Under the 
circumstances of this case, however, those exemption defenses do not require such 

extensive individualized analysis as might warrant decertification of the collective action. 
As Learing asserts, the common structural aspects of the NMMs’ employment are enough 
to decide their proper exemption status. Unduly focusing on an individual NMM’s 
workload ignores Anthem’s actions that apply equally to all NMMs regardless of the 
medical substance of the individual assignments. Regardless of the type of authorization 

request, NMMs are subject to the same job performance expectations, receive the same 
training on Anthem’s utilization management system, and have their work monitored and 
evaluated in the same way.                                                
    Anthem also references the combination exemption under 

 as 
a defense that requires individualized analysis but does not develop the argument. (See 

Doc. No. 134 at 15–16.) At most, that exemption might apply to an NMM primarily 
performing some combination of exempt duties other than utilization review. Should 
Anthem show that such an inquiry is warranted against an individual plaintiff, it can 
introduce individualized evidence as needed. But merely referencing the exemption does 
not warrant decertification. In sum, Anthem’s exemption defenses are individualized in 
appearance only; whether any exemption applies remains a matter of common resolution. 

         3.   Fairness and Procedural Considerations                     
    Any collective proceeding poses certain logistical difficulties, but those difficulties 
do not render proceeding collectively to be less efficient or expedient than conducting 
many individual trials litigating essentially the same liability issues. Anthem’s logistical 
concerns are not so significant that a collective trial would be unmanageable. Those 
NMMs who have already been deposed offer testimony about their common and 

individualized work experience at Anthem, and they represent a cross-section of the 
various NMM teams and groups within Anthem’s organization. Anthem’s corporate 
witnesses and internal documents and policies represent the company’s actions. That 
representative evidence would permit a factfinder to determine the central liability 
question here: whether NMMs’ primary duty of utilization management as performed 

within Anthem’s system constitutes exempt or nonexempt work.              
    Anthem also raises concerns about how to fairly calculate damages, arguing that 
Learing has not put forward an adequate plan for doing so. Concerns over calculating 
damages, influenced by individual circumstances, do not invalidate the appropriateness of 
collective adjudication. See Cruz, 

, at *17. This aligns with the general 

principle that wrongfully classified employees should not be denied recovery simply 
because they cannot precisely prove the extent of their uncompensated work due to their 
employer’s failure to keep accurate records for those classified as exempt. See Holaway 
v. Stratasys, Inc., 

 (8th Cir. 2014) (citation omitted).  
    This matter does not involve variable pay rates or a payment scheme that depends 
on the type of work performed. It presents a straightforward damages question: if NMMs 

were not properly exempted, they would have a right to overtime pay for all weeks in 
which they worked hours that should have been treated as overtime hours and paid 
accordingly. If necessary, trial could be bifurcated into a liability and a damages phase. 
But differences in the amount of each individual NMM’s alleged overtime hours or the 
possibility that some NMMs did not work any overtime does not compel decertification. 
    Therefore, Anthem’s motion to decertify the FLSA collective is denied. 

    B.   Plaintiff’s Motion to Certify Rule 23 Class                     

    Whether to certify a class under Rule 23 is left to the reviewing court’s broad 
discretion. See Cruz, 

, at *4 (citing Shapiro v. Midwest Rubber 
Reclaiming Co., 

 (8th Cir. 1980)). To certify a class, the plaintiff must 
meet all the requirements of Rule 23(a) and at least one subsection of Rule 23(b). 

 
(quoting In re St. Judge Med., Inc., 

 (8th Cir. 2005)). 
    Rule 23(a) requires Learing to demonstrate that (1) the class is so numerous that 
joinder of all members is impracticable; (2) there are questions of law or fact common to 
the class; (3) the claims or defenses of the representative parties are typical of the claims 
or defenses of the class; and (4) the representative parties will fairly and adequately 

protect the interests of the class. See 

 (quoting Fed. R. Civ. P. 23(a)). Learing seeks 
certification under Rule 23(b)(3), which provides for class certification if common 
questions of law or fact predominate over individual questions and a class is the superior 
method to adjudicate the controversy fairly and efficiently. See Fed. R. Civ. P. 23(b)(3).  
    Learing’s proposed Minnesota class will be certified because the central 
question—whether NMMs performing their roles, as outlined and evaluated by Anthem, 

are doing nonexempt work—remains consistent across the class. This dispute centers on 
a common issue of how NMMs’ utilization review duties are executed within Anthem’s 
employment framework, which is subject to class-wide evidence and does not require 
individualized evidence for each type of authorization request reviewed.  
         1.   Numerosity                                                 

    This District has noted that a putative class of more than 40 is presumptively 
sufficient. See, e.g., Cruz, 

, at *5–6 (citing Lockwood Motors, Inc. v. 
Gen. Motors Corp., 

 (D. Minn. 1995)). Learing’s proposed class 
includes at least the 65 NMMs that received the FLSA collective notice but could include 
more given that the proposed class might include current Anthem employees. See 
Nerland, 

 (disagreeing that notice of FLSA collective accounted 

for all potential class members). Numerosity is satisfied here.           
         2.   Commonality                                                
    Commonality requires the presence of a common contention capable of class-wide 
resolution. Cruz, 

, at *7 (quoting Dukes, 

). It requires 
the class members to have suffered the same injury. 

 (quoting Luiken v. Domino’s 

Pizza, LLC, 

 (8th Cir. 2013)). Even though individuals may not be 
situated identically, commonality remains when the legal question linking class members 
is substantially related to resolving the litigation. See Nerland, 

 
(citations omitted). Factual variances will not defeat commonality if the claims arise from 
a common factual nucleus. 

 (citation omitted).                         
    Learing clears the commonality bar because each NMM allegedly suffered the 

same injury: wrongful classification as overtime exempt. Whether NMMs qualify as 
exempt is the fundamental contention in this suit, which can be resolved in one stroke. As 
explained further in the predominance analysis below, individual dissimilarities among 
NMMs do not have the potential to impede answering the common liability question, 
which is asked and answered based on Anthem’s common practices.           
         3.   Typicality                                                 

    Typicality is fairly easily met, so long as the purported class members have claims 
much like the named plaintiff. Postawko v. Missouri Dept. of Corr., 

 
(8th Cir. 2018) (quotation omitted). Factual variations seldom preclude certification if 
each claim stems from the same conduct and raises the same legal or remedial theory as 
the class claims. See 

 (quoting Alpern v. UtiliCorp United, Inc., 

 

(8th Cir. 1996)).                                                         
    Learing also clears the typicality bar. Anthem classified its NMMs as overtime 
exempt and paid them a salary. The wrongful classification allegedly suffered by Learing 
is the same as that suffered by the proposed class of salaried NMM workers. Whether an 
NMM’s primary duty to perform utilization review qualifies as exempt work is the 

fundamental legal question at issue. That question can be answered across the board by 
finding that utilization review work—as performed by NMMs at Anthem and subject to 
commonly applicable policies and procedures—does or does not qualify as exempt work. 
         4.   Adequate Representation                                    
    Certifying Learing as the representative plaintiff does not present any obvious 

concerns. Anthem raises no concern or argument about Learing that it could not raise 
about any other class member. And as Anthem points out, Learing has experience 
working on NMM teams that process different request types and therefore examine 
different medical necessity criteria. The proposed class counsel has been recognized in 
this District for experience in wage and hour litigation and is competent to represent a 
class or collective. See Netzel v. West Shroe Grp., Inc., Civ. No. 

, at *6 

(D. Minn. May 8, 2017) (collecting cases). Therefore, Learing and her attorneys are 
adequate to represent the class.                                          
         5.   Rule 23(b) Factors                                         
              a.   Predominance                                          
    Predominance in the context of Rule 23(b)(3) involves a detailed evaluation; 

simply having a common question among the class members is not enough to meet this 
criterion. See Ebert v. Gen. Mills, Inc., 

 (8th Cir. 2016). The essence of 
predominance is assessing whether the class is unified enough for a collective legal 
action to be appropriate. See Luiken v. Domino’s Pizza, LLC, 

 (8th Cir. 
2013). This involves determining whether plaintiffs can present a plausible claim of 

wrongdoing using evidence that applies broadly across the class. See Drake v. Steak N 
Shake Operations, Inc., 

 (E.D. Mo. 2017). Individual 
questions might require unique evidence for each class member, while common questions 
can be addressed with uniform evidence or are suitable for resolution as a group. See 

 
The predominance inquiry focuses on liability. See Nerland, 

.  
    Here, liability turns on whether Anthem appropriately classified NMMs as exempt 

administrative employees or learned professionals, which depends on the primary duties 
assigned to the NMM role. Learing offers a path to answering the exemption question 
based on common evidence, while Anthem frames the question at too granular a level. 
The proposed Minnesota class includes NMMs who were employed by Anthem in 
Minnesota, paid on a salary basis, expected to use the same Anthem systems and 
processes for reviewing authorization requests, and subject to the same expectations and 

performance evaluation. The evidence includes consistent job descriptions, Anthem’s 
policies applicable to all, and testimonies about the responsibilities tied to utilization 
review. The record lacks evidence that Anthem decided NMMs’ exemption status worker 
by worker, rather than collectively as a group.                           
    Anthem’s argument that NMM roles differ significantly in primary duties is 

challenged by its own admissions that utilization review is the main responsibility for 
most NMM positions. Anthem argues that utilization review is not the main duty of an 
NMM Lead, pointing to a declaration from a medical manager in Indiana who states that 
the NMM Lead on her team acts as an assistant manager and conducts no medical 
necessity reviews. (See Doc. No. 169-1 at 7 ¶ 18.) That goes against Anthem’s job 

description for the NMM Lead position, which states that the NMM Lead role’s primary 
duties include utilization review activities identical to those in the other NMM roles. (See 
generally Doc. No. 150-1.) In addition, testimony from the Opt-In Plaintiff that worked 
as an NMM Lead for Anthem in Minnesota was that half of her work was spent on 
utilization review. The NMM positions included in the proposed Minnesota class all had 
the same primary work duty.                                               

    Furthermore, on closer inspection, Anthem’s argument about differing NMM job 
duties relates mainly to the varying substance of authorization requests. Although there is 
variation in the substance of the requests (which in turn compels the use of a different set 
of clinical guidelines), the overall process and expectations for how NMMs are meant to 
process a request from start to finish is set by common Anthem policies and practices. All 
NMMs follow a set procedure governed by Anthem’s overarching policies and practices. 

The process and expectations for managing authorization requests are consistent across 
the board, meaning variations in request details do not change the fundamental job duty 
of conducting utilization reviews within Anthem’s system.                 
    In sum, the individualized differences Anthem highlights are not so consequential 
that they overcome the structural commonalities that apply to NMMs regardless of their 

team or the substance of their assigned authorization requests. Although individual 
NMMs varied in their daily routines and work settings, those variations have minimal 
relevance or effect on the central questions relating to whether the positions’ primary 
duty—utilization review—constitutes exempt or nonexempt work. Cf. Bouaphakeo, 

 (variations in individual plaintiffs’ donning and doffing routines did not 

present individualized issues that dominated the action and would prevent collective 
resolution). Individualized issues therefore do not predominate over the more substantial 
and consequential common questions to preclude certification under Rule 23(b). 
              b.   Superiority                                           
    Superiority considers (1) the interest of class members in controlling a separate 

action; (2) the extent and nature of existing litigation about the controversy; (3) the 
desirability of concentrating the litigation in a particular forum; and (4) the difficulties 
likely to be encountered in managing a class action. See Nerland, 

 
(citing Fed. R. Civ. P. 23(b)(3)). These four factors favor finding superiority here. 
    As Learing contends, it seems unlikely that individual NMMs would benefit more 
from individual actions than from this collective lawsuit, but any individual desiring to 

opt out will be given the opportunity. Currently, no other Minnesota case addresses these 
same issues. Therefore, it is sensible to gather all similar claims from Minnesota workers 
into one case, handled in a Minnesota forum.                              
    Although Anthem raises concerns about the complexity of managing a class action 
because of the varied duties among NMM roles, such challenges can be addressed 

through methods like subclassing or modifying the class certification if necessary. 
Testimonies from NMMs about their expected duties and Anthem’s operational 
procedures indicate that the main issues, particularly those related to liability, can be 
resolved with evidence that applies broadly across the class. Whether a given NMM on a 
certain team qualifies as exempt will not turn on that individual NMM’s understanding of 

how to carry out Anthem’s policies and procedures. The commonly applicable policies 
and procedures will determine whether an exemption applies.               
    Collective proceedings are superior for addressing the core issues of this case. 
Whether Anthem’s NMMs in Minnesota performed exempt or nonexempt work within 
Anthem’s utilization management program can effectively be resolved with common or 
representative evidence. The substantive differences between NMM teams are variations 

of a common function within Anthem’s employment structure: medical necessity review 
of authorization requests. Therefore, conducting multiple individual trials rather than a 
class action would be repetitive and inefficient, given the uniformity of the central 
question across all NMM roles. Accordingly, a class action is the superior method of 
adjudicating at least the liability question presented here.              
    Learing’s motion to certify the proposed Minnesota class is granted. 

II.  Summary Judgment                                                     
    Having addressed the parties’ motions for and against collective proceedings, the 
analysis turns to their cross-motions for summary judgment.               
    A.   Legal Standard                                                  
    Cross-motions for summary judgment do not change the summary judgment 

standard. Hanson v. Loparex, Inc., 

 (D. Minn. 2011). Summary 
judgment is proper if the record establishes that there is no genuine issue of material fact 
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To 
determine which facts are material, courts should look to the substantive law in a dispute 
and identify the facts which are critical to the outcome. Com. Union Ins. v. Schmidt, 

 (8th Cir. 1992). A genuine issue of material fact exists when the evidence 
is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson v. 
Liberty Lobby, 

 (1986). If the evidence permits a verdict for the 
nonmoving party, then summary judgment is inappropriate. See Krenik v. Cnty. of Le 
Sueur, 

 (8th Cir. 1995). On summary judgment, evidence is considered 
in the light most favorable to the nonmoving party, drawing all reasonable inferences in 

that party’s favor. See Windstream Corp. v. Da Gragnano, 

, 802–03 (8th 
Cir. 2014).                                                               
    B.   Analysis of Anthem’s Overtime Exemption Defenses                
    As the employer, it is Anthem’s burden to prove that an overtime exemption 
applies, and it must do so by showing that the employees fit “plainly and unmistakably 
within the exemption’s terms and spirit.” Cruz, 

 (quoting Spinden 

v. GS Roofing Prods. Co., 

 (8th Cir. 1996)). Anthem contends that 
Learing and the NMMs conclusively qualify for the administrative exemption under 

 and the learned professional exemption under 

. 
    Courts are instructed to interpret FLSA exemptions in a balanced manner, neither 
too narrowly nor with bias towards either employees or employers. See Encino 

Motorcars, LLC v. Navarro, 

 (2018); Coates v. Dassault Falcon Jet 
Corp., 

, 1047 n.7 (8th Cir. 2020). The analysis of the exemptions focuses 
on the nature of the workers’ primary duties and not on who performs the work. See 

 (“any employee . . . whose primary duty is . . .”); 541.301 (“an 
employee’s primary duty must be . . .”). What matters are the actual job responsibilities 

rather than facial titles or qualifications. To decide the issue based on Anthem only hiring 
RNs for NMM positions is to avoid examining the job duties themselves. Cf. Rego v. 
Liberty Mut. Managed Care, LLC, 

 (E.D. Wis. 2019) (citations 
omitted). And this is not a matter of simply invoking “magic words” such as “judgment” 
or “discretion” in reference to employees’ duties—the important inquiry is what the job 
responsibilities in fact entail. See Rego, 

 (“That Plaintiffs may use 

the words ‘nursing rationale or ‘clinical judgment’ when speaking about their work does 
not transform the nature of the work itself. To allow the use of such terminology to 
trigger an exemption without a close look at the job duties would undermine the purpose 
of the FLSA maximum hours provision.”).                                   
    Under the regulations, determining whether an employee is exempt from overtime 
involves assessing if their salary and primary job responsibilities align with specific 

regulatory criteria. See 

 (“The exempt or nonexempt status of any 
particular employee must be determined on the basis of whether the employee’s salary 
and duties meet the requirements of the regulations . . . .”). It is not disputed that the 
NMMs here meet the salary requirement for exemption, making the decisive issue for 
summary judgment the characteristics of their primary work duties.        

    The two FLSA exemptions under consideration here are the administrative 
exemption and the learned professional exemption.                         
         1.   Administrative Exemption                                   
    Two elements must be satisfied to qualify for the administrative exemption: (1) the 
primary duty is performing office or non-manual work directly related to the management 

or general business operations of the employer or the employer’s customers; and (2) the 
primary duty includes the exercise of discretion and independent judgment with respect 
to matters of significance. 

(a). The “primary duty” is the principal, 
main, major, or most important duty. 

 § 541.700(a). The primary duty is utilization 
review work performed by NMMs at Anthem in Minnesota.                     
              a.   Directly related to management or general business    
                   operations                                            

    NMMs’ role in reviewing authorization requests per Anthem’s contracts with Blue 
Cross Blue Shield raises questions about whether their work directly relates to assisting 
with the running or servicing of Blue Cross Blue Shield’s business, contrasted to 
performing occupational functions like production line or product sales workers. See 

(a). The record reflects that NMMs operate more similarly to production 
line workers than to business consultants who manage or service the customer’s business. 
    While NMMs’ medical necessity decisions play a part in customer operations by 
determining insurance payment authorizations, they do not engage in direct business 

management activities. NMMs do not directly consult insurance company customers 
about how they go about processing insurance coverage; do not perform work that 
directly relates to how customers operate as a business; and are not directly involved in 
managing, operating, or otherwise running the customers’ businesses. NMMs’ work 
product is their response to an authorization request. That response is then used by 

customers like Blue Cross Blue Shield to carry out their business functions that depend 
on having that response. But the NMMs have no involvement at that point.  
    Because the record does not support a finding that NMMs’ primary duties are 
directly related to managing or assisting in the general business operations of Anthem or 
Anthem’s customers, Anthem does not meet the initial requirement for the administrative 

exemption. Summary judgment is thus granted for Learing on that basis.    
              b.   Discretion and independent judgment                   

    Despite Anthem’s failure on the first “directly related” requirement, the 
administrative exemption’s requirement for discretion and independent judgment is also 
not met. The exemption criteria require that discretion and judgment involve evaluating 
and deciding among various actions, not merely following established procedures or 
guidelines within strict limits. See 

(a); 541.202(e) (to meet the 
exemption requires more than the use of skill in applying well-established techniques, 
procedures, or specific standards described in manuals or other sources). 

    For example, inspection work seldom meets the exemption because inspectors 
normally perform “specialized work along standardized lines involving well-established 
techniques and procedures[,] rely on techniques and skills acquired through special 
training or experience[, and] have some leeway in the performance of their work but only 
within closely prescribed limits.” 

 § 541.203(g); see also § 541.704 (no exemption for 

employees who apply well-established techniques or procedures within closely 
prescribed limits to determine the correct response to an inquiry or set of circumstances). 
    It was this inspector example that the Fifth Circuit found closely mirrored 
utilization review work and compelled finding the administrative exemption inapplicable. 
See Clark v. Centene Co. of Texas, 

 (5th Cir. 2016). Similarly 

considering the utilization work performed here, NMMs at Anthem use well-established 
materials to complete their work, rely on skills acquired through training on the job, and 
operate within a governing program built to ensure the worker makes the correct response 
to an authorization request. NMMs are expected to strictly follow Anthem’s policies and 
procedures when finding and applying the proper medical necessity guideline. Any 
leeway exists only within Anthem’s closely prescribed requirements.       

    Anthem authorizes NMMs to take two possible courses in response to an 
authorization request and dictates what compels each. If the applicable guideline is met, 
the NMM must approve the request. If not, the NMM must recommend denial and 
escalate the decision to an Anthem Medical Director for final review. The NMM may 
request additional records from the provider, but only as needed for the NMM to decide 
whether to approve or recommend denial. NMMs do not evaluate possible courses of 

conduct. Their only options are to approve or recommend denial, based on the applicable 
medical necessity guideline and inspection of the medical records.        
    While reviewing authorization requests requires skill, the record does not support 
a finding that the level of skill rises above applying well-established guidelines to a set of 
medical records within closely prescribed limits. Therefore, the administrative exemption 

fails for this reason as well.                                            
         2.   Learned Professional Exemption                             
    Turning to the learned professional exemption, three elements must be met to 
qualify: (1) the employee’s primary duty must be performing work that requires advanced 
knowledge; (2) the advanced knowledge must be in a field of science or learning; and  

(3) the advanced knowledge must be customarily acquired by a prolonged course of 
specialized intellectual instruction. See 

(a). RNs are generally 
considered learned professionals, while LPNs and other similar health care employees 
generally are not. See 

 § 541.301(e)(2). As above, the primary duty under consideration 
is utilization review work performed by NMMs at Anthem in Minnesota.      
              a.   Work requiring advanced knowledge                     

    The advanced knowledge question is whether NMMs’ work involves the   
consistent exercise of discretion and judgment versus routine mental work. See 

(b). Based on the record here, NMMs’ utilization review work at Anthem 
mostly involves routine mental work, not consistent discretion and judgment. Anthem’s 
program structures, processes, training, and especially its performance evaluation that 
requires NMMs to choose the correct case outcome at least 90% of the time eliminate 

variability by design, which minimizes discretion and judgment.           
                   i.   Proper judgment and discretion analysis considers 
                        the nature of the work itself, and not in comparison 
                        to the arguable learned profession at issue      

    The parties fundamentally disagree about the proper approach to analyzing 
discretion and judgment. Neither side points to binding caselaw from the Eighth Circuit 
that controls the analysis. Instead, Learing points to Rego v. Liberty Mut. Managed Care, 
LLC, 

 (E.D. Wis. 2019) and Clark v. Centene Co. of Texas, L.P., 

 (W.D. Tex. 2014), aff’d, 

 (5th Cir. 2016) as instructive, 
while Anthem contends that the two-step inquiry developed by the Second Circuit in 
Pippins v. KPMG, LLP, 

 (2d Cir. 2014), applied to utilization review 
nurses in Isett v. Aetna Life Ins., 

 (2d Cir. 2020), should control.  
    Rego and Clark focus on the nature of the work duties, while the Isett approach 
focuses on the nature of the person doing the work. Rego found that, based on the nature 
of utilization review work as performed, the utilization review nurses relied mostly on 
medical necessity guidelines, and not consistent use of their own discretion and 
judgment, to determine whether an authorization request should be granted. See 367 F. 

Supp. 3d at 857–58. The work therefore did not satisfy the advanced knowledge 
requirement. See 

 at 859–60.                                           
    Anthem argues that Rego should be summarily rejected here, as it was in Isett. In 
Isett, the Second Circuit critiqued Rego’s advanced knowledge analysis because it “did 
not account for the unique character of the learned professional exemption” and failed to 
apply the two-step test from Pippins. See 

, 138 n.77. Rego’s reasoning is 

not so flawed. Rather than apply an out-of-circuit test (which the Second Circuit 
developed in a case involving accountants and had not yet applied to utilization 
management), Rego took a different approach. It repurposed the analysis of the more 
rigorous “judgment and independent discretion” required for the administrative 
exemption to consider the less rigorous “judgment and discretion” required for the 

learned professional exemption (citing Seventh Circuit authority allowing it to do so). See 

.                                                   
    Isett further criticized Rego for relying on Clark because that case did not analyze 
the advanced knowledge element of the learned professional exemption. See Isett, 

 n.59. But Rego simply agreed with Clark’s characterization of utilization 

review work as “inspector-type work” and then independently found that the utilization 
review work at issue is best described as routine mental work. See 

. Rego offers a useful and persuasive approach to evaluating the characteristics of 
utilization review work outside the Second Circuit.                       
    Clark is distinct from this case, however. Anthem expressly disclaims the use of 
nursing judgment from the primary duties for its utilization review jobs that require LPN 

licensure. (Compare Doc. No. 131-50 with Doc. No. 131-49.) In Clark, the learned 
professional exemption did not apply because the employer did not distinguish between 
LPN-level and RN-level utilization review positions. See generally 44 F. Supp. 3d at 
676–81. Clark’s approach to the exemption analysis and assessment of the utilization 
review work and industry is informative, but as its facts are materially distinct, Clark will 
not dictate the outcome on advanced knowledge.                            

    Anthem’s preferred authority, Isett from the Second Circuit, will not dictate the 
outcome either. A key factual difference in Isett is that the RN-level “nurse consultants” 
held final review authority over approval recommendations made by LPN-level “nurse 
associates” who had no authority to approve a case. See 947 F.3d at 126–27. By contrast, 
RNs, and LPNs at Anthem hold the same level of authority. That distinction aside, Isett’s 

two-step test will not be applied here because it overcomplicates and colors the 
exemption analysis based on a characteristic of the worker rather than the work itself. 
Isett wrote that an exclusive focus on work duties misinterprets the analytical framework 
established in Pippins. See 

. Pippins does not control here, and closely 
examining work duties as actually performed is the proper FLSA exemption analysis. 

                   ii.  Utilization review nurses and patient care nurses 
                        review medical necessity for distinct purposes   

    Isett’s test is also a poor fit because the parties fundamentally disagree over 
whether NMMs work in the field of nursing (but in a nontraditional setting) or in the field 
of insurance. Even without resolving the debate, a brief comparison of RNs working in a 
patient care setting and NMMs conducting utilization review reveals a meaningful 

distinction in the nature of their work that the Issett test might fail to appreciate. 
    Patient care RNs review records and assess a patient’s condition for purposes of 
deciding the course of treatment. The NMMs’ primary task is to make an insurance 
coverage determination based on an inspector-clipboard checklist appraisal of medical 
records for the presence or absence of medical necessity criteria. See Rego, 

 (distinguishing utilization review nurse role from a registered nurse in 

practice); Clark, 

 (describing the utilization management role in the 
insurance process). NMMs do not coordinate patient care directly or remotely. An 
NMM’s review affects only how a treatment is paid for, not whether the treatment will be 
provided.                                                                 
    RNs in patient care settings and NMMs at Anthem both review medical necessity 

and even use some of the same resources to do so. But patient care RNs review medical 
necessity by assessing patient needs for a possible course of treatment. NMMs review 
medical necessity by inspecting medical records to decide insurance coverage. That 
distinction differentiates work that requires consistent use of judgment and discretion 
from routine mental work. Based on how NMMs perform utilization review within 

Anthem’s program, the record reflects that NMMs do not consistently use judgment or 
discretion, nursing-like or otherwise, to qualify as learned professionals. 
                   iii.  Anthem’s utilization review program is designed to 
                        limit variability and avoid incorrect medical    
                        necessity determinations                         

    According to Isett, it is “a hallmark of informed professional judgment to 
understand when a problem can be dealt with by the professional herself . . . and when 
the issue needs to be brought to the attention of a senior colleague (i.e., a medical 
director) with greater experience, wisdom, or authority.” 947 F.3d at 134–35. No such 
judgment is available to NMMs here. Based on how Anthem trains and evaluates NMMs’ 
performance, it views their medical necessity determinations as true or false 
propositions—not judgment calls—and operates a system in which NMMs have no 
choice other than to approve or recommend denial, depending on what is seen in the 
records. NMMs at Anthem lack the professional discretion to assess whether they can 
handle a request themselves or if it should be elevated to the next level of authority. 
Anthem’s policies control, dictating when an NMM may or may not elevate a request. 

    Anthem argues NMMs nonetheless exercise sufficient judgment and discretion, 
depending on the complexity of the authorization request, the nature of the applicable 
guideline, and whether an NMM believes there is a basis to approve the request despite 
not satisfying the applicable medical necessity criteria. Anthem further contends that 
particular guidelines might require subjective interpretation, and that some NMMs even 

advocate for a Medical Director to approve a request that the NMM had to deny.  
    The record does not support a finding that NMMs consistently exercise such 
discretion and judgment. Discussions with a Medical Director where an NMM advocates 
to approve a request despite recommending denial are the exception, not the rule. In fact, 
NMMs handling outpatient requests do not discuss denial recommendations with Medical 
Directors at all. NMMs are mainly tasked with sifting through medical records to identify 

whether specific criteria are present; the record does not show them to be consistently 
analyzing, interpreting, or deducing from the records whether a guideline is satisfied. 
Anthem’s NMMs have limited discretion and exercise judgment infrequently at most. 
Their work is mostly routine and does not involve consistent discretion and judgment 
sufficient to meet the regulation’s definition of work requiring advanced knowledge. 
    Finally, Anthem correctly points out that using manuals, guidelines, or established 

procedures does not necessarily preclude exemption. See 

. But no 
exemption (learned professional, administrative, or otherwise) is available for employees 
who apply well-established techniques or procedures described in manuals or other 
sources within closely prescribed limits to determine the correct response to an inquiry or 
set of circumstances. See 

 The record shows that NMMs working in Anthem’s 

utilization review program fit that description. NMMs read and consider the applicable 
medical necessity criteria on their own, but they do so according to Anthem’s policies 
and procedures, using Anthem’s systems, and subject to routine examinations evaluating 
whether they correctly decide cases at an acceptable rate. Other than reading a guideline 
and looking at a medical file, Anthem closely prescribes nearly every other aspect of the 

utilization review process. NMMs use clinical guidelines within the closely proscribed 
confines of Anthem’s utilization review program to determine the correct response to an 
authorization request. Under § 541.704, that work does not qualify as exempt. 
                   iv.  Conclusion on advanced knowledge                 
    The record supports a finding that utilization review work conducted by NMMs 

within Anthem’s program is routine mental work, and does not support a finding that 
their work requires consistent discretion and judgment. Accordingly, Anthem cannot 
establish the advanced knowledge requirement for the learned professional exemption to 
apply. Thus, summary judgment is granted for Learing on that basis.       
              b.   Customarily acquired by a prolonged course of         
                   specialized intellectual instruction                  

    Because the learned professional exemption fails on advanced knowledge, there is 
no need to consider specialized intellectual instruction. Even so, it is not immediately 
clear that the specialized intellectual instruction element would be satisfied here.  
    The specialized intellectual instruction element examines the standard prerequisite 
to enter the profession. See 

(d). The best evidence that a worker 
meets the requirement is possessing the appropriate academic degree. See 

  
    NCQA establishes LPN-level credentials as the minimum required to perform 
utilization review work. Utilization management is not taught in nursing school. And 

Anthem previously staffed LPNs and RNs on the same utilization review teams but now 
distinguishes between the roles. Based on that evidence, RN-level academic training does 
not appear to be the standard prerequisite to join the utilization review industry. See, e.g., 
Rego, 

 (finding that standard prerequisite for utilization review 
work is LPN-level credentials, despite employer requiring its utilization reviewers to be 

RNs). Anthem requires RN licensure for utilization review work that it deems more 
complex or difficult. But that is Anthem’s choice, not an accreditation requirement. 
Anthem’s business practice does not equate to an industry standard for entering the field.  

    B.   Analysis of Anthem’s Section 260 Good Faith Defense             
    Learing also seeks summary judgment on any good faith defense to liquidated 
damages that Anthem may assert, arguing that Anthem has not produced sufficient 
evidence of its decision to classify the NMM positions as exempt.         
    An employer who violates the FLSA is liable for unpaid wages plus an equal 
amount of liquidated damages. See 

(b). Courts may reduce or deny 

liquidated damages if the employer shows its actions were taken in good faith and that it 
had reasonable grounds to believe its actions would not violate the FLSA. See 

. The burden of proof is difficult, requiring the employer to establish its honest 
intention and affirmative steps to learn and follow the FLSA’s requirements. Chao v. 
Barbeque Ventures, LLC, 

, 941–42 (8th Cir. 2008).             

    Anthem explains that the administrative and learned professional exemptions, 
including the regulation recognizing that RNs generally qualify as learned professionals, 
have been long established. Anthem does not otherwise show what steps it took to 
determine FLSA requirements for the NMM positions or point to evidence showing the 
company had reasonable grounds to believe that classifying NMMs as exempt did not 

violate the FLSA. In fact, FLSA lawsuits against Anthem’s predecessor dating to 2008 
indicate that Anthem has been on notice of its potentially unlawful classification of 
utilization review nurse positions. See Lazaar v. Anthem Cos., No. 22-cv-3075(JGK), 

, *3 (S.D.N.Y. Jan. 25, 2023) (finding that allegations of prior 
misclassification lawsuits against Anthem predecessor sufficient to raise question of 
willful FLSA violation for purposes of determining applicable statute of limitations); see, 

e.g., Ruggles v. WellPoint, Inc., 

, 63–64 (N.D.N.Y. 2008). The existence of 
applicable regulations and the fact that Anthem’s NMMs are salaried positions do not 
show Anthem’s intent or classification process.                           
    The purpose of summary judgment is to dispose of factually unsupported claims 
and defenses. See Schmidt, 

; see also Celotex Corp. v. Catrett, 

, 323–24 (1986). Anthem has not identified evidence that would support a verdict in 

its favor on a good faith defense to liquidated damages. Summary judgment is therefore 
granted for Learing on Anthem’s good faith defense.                       

    For these reasons, and based on all the records, files, and proceedings here,  
IT IS HEREBY ORDERED that:                                                

    1.   Plaintiff’s Motion for Partial Summary Judgment (Doc. No. 126) is 
GRANTED.                                                                  
    2.   Defendants’ Motion for Summary Judgment (Doc. No. 139) is DENIED. 
    3.   Defendants’ Motion to Decertify Conditionally Certified Collective (Doc. 
No. 133) is DENIED.                                                       

    4.   Plaintiff’s Motion to Certify Class (Doc. No. 145) is GRANTED as 
follows:                                                                  
         a.   The following Rule 23 class is certified:                  
              All persons who worked as Medical Management Nurses, Utilization 
             Management Nurses, Utilization Review Nurses, or other similar job 
             titles who were paid a salary and treated as exempt from overtime 
             laws, and were primarily responsible for performing medical 
             necessity reviews for Defendants in Minnesota from three years 
             prior to the filing of this Complaint through judgment.    

        b.   Plaintiff must file an amended proposed class notice reflecting the 
   rulings made in this Order within 14 days, after which an order setting a 45-day 
   notice period and authorizing Plaintiff’s counsel to mail the class notice will be 
   issued. If the notice will be sent to individuals who already received notice of the 
   FLSA action, the amended notice should explain why they are receiving a second 
   notice and explain the opt-out procedure that applies to the state law claims. 
   Defendants will be permitted to raise its objections to the amended notice by filing 
   a letter with the court within 7 days of Plaintiff’s filing the amended notice. 
        c.   Plaintiff Christine Learing is appointed Class Representative. 
        d.   Nichols Kaster, PLLP is appointed Class Counsel.           
        e.   Defendants are ordered to produce a list of all individuals who 
   worked in a medical management nurse role in Minnesota or otherwise fit the 
   certified class description at any time in the three years prior to the filing of the 
   Complaint in this matter.                                            
Date: March 22, 2024           s/ Jerry W. Blackwell                     
                              JERRY W. BLACKWELL                        
                              United States District Judge              

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Christine Learing, individually and on  Civ. No. 21-2283 (JWB/DJF)       
behalf of all others similarly situated,                                 

          Plaintiff,                                                     
                                           ORDER ON                      
v.                                 SUMMARY JUDGMENT AND                  
                                     CLASS CERTIFICATION                 
The Anthem Companies, Inc.; Amerigroup                                   
Corporation; and Amerigroup Partnership                                  
Plan, LLC,                                                               

          Defendants.                                                    


Caitlin L. Opperman, Esq., Michele R. Fisher, Esq., and Rachhana T. Srey, Esq., Nichols 
Kaster PLLP, counsel for Plaintiff.                                       

Brett Christopher Bartlett, Esq., Kevin Michael Young, Esq., Lennon Haas, Esq., and 
Thomas J. Posey, Esq., Seyfarth Shaw LPP, counsel for Defendants.         


    This is a dispute over alleged misclassification of utilization review nurses as 
exempt from Fair Labor Standards Act (“FLSA”) overtime pay requirements. Plaintiff 
Christine Learing seeks to represent an FLSA collective and Rule 23 class of similarly 
situated utilization review nurses in Minnesota challenging their exemption status. The 
Defendants are the Anthem Companies, Inc. and its subsidiaries Amerigroup Corporation 
and Amerigroup Partnership Plan, LLC (collectively “Anthem”). Anthem hires nurses to 
review medical authorization requests submitted by healthcare providers to determine 
whether the services they have provided were medically necessary and therefore eligible 
for coverage—a process known as medical management or utilization review. 
    Anthem contends that Learing and the utilization review nurses she seeks to 
represent were properly classified as a category of employees ineligible for overtime pay 

(“exempt”) and moves for summary judgment. Learing also seeks summary judgment. 
She contends that utilization review positions like hers should not be exempt from 
overtime pay, and that Anthem has shown no evidence that its overtime exemption 
decision, denying employees their overtime pay, was made in good faith. Anthem also 
moves to decertify the previously certified FLSA collective. Learing, in turn, moves to 
certify a Rule 23 class asserting similar claims under Minnesota law. For the reasons 

below, Learing’s motions are granted, and Anthem’s motions are denied.    
                         BACKGROUND                                      
    Health insurance companies, like Anthem, employ utilization reviewers to confirm 
or deny the necessity of medical treatments. These decisions are based on whether the 
treatments align with established medical care standards, using clinical guidelines to 

decide whether insurance coverage is approved or denied. In Minnesota, Anthem has 
hired various workers to perform utilization review work for Medicaid plans as part of a 
contract with Blue Cross Blue Shield. Some positions require the reviewer to be a 
licensed practical nurse (“LPN”) and are paid hourly, while others require licensure as a 
registered nurse (“RN”) and are paid a salary.                            

    This case involves the salaried RN utilization review positions at Anthem—
specifically the roles of Nurse Medical Management I, II, Senior, and Lead, among others 
with similar titles. These Nurse Medical Managers (“NMMs”) handle authorization 
requests, which are directed to specific review teams that handle different types of 
requests. Each request assigned to an NMM involves reviewing clinical data in Anthem’s 
digital system, reading relevant clinical guidelines, and comparing whether the medical 

documentation meets the necessary medical criteria. If the criteria are present, the NMM 
grants authorization; if not, the decision is escalated to a licensed physician Medical 
Director for final determination.                                         
    Utilization review skills are not taught in nursing school but are acquired through 
on-the-job orientation, training, and experience. Anthem’s training for NMMs includes 
how to use the company’s digital systems to handle requests, as well as mock exercises 

on applying medical necessity criteria. Newly hired NMMs are also paired with 
experienced NMMs for mentorship and additional training.                  
    NMMs at Anthem must follow Anthem’s step-by-step process for conducting 
utilization review, no matter the specific team to which they are assigned or the substance 
of the authorization request. While the nature of each request determines the clinical 

guidelines that must be considered, the process of comparing the request’s underlying 
medical records to the applicable guidelines does not vary. Each approval request is 
routed through Anthem’s review framework using Anthem’s digital system.   
    The National Committee for Quality Assurance (“NCQA”), an accrediting 
organization, sets industry standards for managed care organizations that perform 

medical necessity reviews. Anthem has tailored its utilization management policies and 
procedures to satisfy NCQA requirements across a range of requirements, including 
program structure, clinical criteria, staff qualifications, turnaround time for requests, and 
case documentation. NCQA requires at least LPN-level credentials for utilization review 
tasks. Although Anthem previously mixed LPNs and RNs in review teams, it now 
differentiates roles, reserving certain authorization tasks for LPNs that do not demand 

nursing judgment.                                                         
    Anthem’s contract with Blue Cross Blue Shield mandates that the company’s 
utilization management program comply with NCQA standards. To maintain this 
compliance, Anthem conducts regular audits of its utilization review processes. These 
audits assess how well NMMs follow proscribed steps for processing requests, the 
accuracy of their decisions, and their productivity. Part of this assessment involves 

mandatory Inter-Rater Reliability (“IRR”) tests to ensure consistent application of 
medical necessity guidelines across reviewers. The IRR presents a series of short case 
summaries and asks a true or false question of whether the member in each case meets 
the criteria for the requested service. (See Doc. No. 150-21.) NMMs scoring below 90% 
on an IRR assessment face corrective action.                              

    NMMs’ workload sometimes demands more than 40 hours in a week. This lawsuit 
seeks overtime compensation for those additional hours worked.            
                          DISCUSSION                                     
I.   Certification of Collective Proceedings                              

    Whether to certify or decertify a collective proceeding is discretionary. See 
Bouaphakeo v. Tyson Foods, Inc., 

 (8th Cir. 2014) (citations omitted). 
Whether collective proceedings are warranted depends on first understanding the nature 
of the claims presented, and then considering whether common issues compel their 
resolution. See, e.g., Frank v. Gold’n Plump Poultry, Inc., Civ. No. 04-1018 (PJS/RLE), 

, at *4–5 (D. Minn. Sept. 24, 2007). Analyzing the case at the 
appropriate level of abstraction is key because “[i]f one zooms in close enough on 

anything, differences will abound.” Id. at *4. But “[a]ny competently crafted class 
complaint literally raises common questions.” Wal-Mart Stores, Inc. v. Dukes, 

 (2011).                                                          
    The core issue in this overtime pay dispute is whether utilization review work 
performed by NMMs at Anthem falls under exempt categories, meaning not qualifying 
for overtime pay. Learing argues that collective proceedings are proper because NMMs 

are uniformly governed by Anthem’s overarching policies, training protocols, and 
performance expectations, regardless of their specific areas of work. On the other hand, 
Anthem argues against collective proceedings, emphasizing the diverse work settings and 
case complexities faced by NMMs based on the nature of their assigned authorization 
requests and corresponding medical criteria.                              

    The resolution here hinges on examining Anthem’s employment policies at a 
structural level rather than individual NMM performance particularities. Despite some 
differences in NMMs’ assignments, all operate under a common employment framework 
that outlines their main duties, individual authority levels, and job performance standards. 
Consequently, for FLSA certification purposes, NMMs are deemed similarly situated 

within Anthem’s employment structure. For class certification, the common questions 
about Anthem’s employment framework for NMMs and related roles predominate over 
individual discrepancies.                                                 
    A.   Defendants’ Motion to Decertify FLSA Collective                 

    The FLSA permits collective action when the plaintiff presents a group of 
similarly situated employees who “suffer from a single, FLSA-violating policy, and when 
proof of that policy or of conduct in conformity with that policy proves a violation as to 
all the plaintiffs.” Bouaphakeo, 

 (quotation omitted); 

(b). 
    To decide whether FLSA claimants are similarly situated, courts consider: (1) the 
extent and consequences of disparate factual and employment settings, (2) the available 
defenses that appear to be individual to each plaintiff, and (3) fairness and procedural 

considerations. See Cruz v. Lawson Software, Inc., 

 (D. Minn. 
2011) (quotation omitted). After discovery, plaintiffs must show that the claimants are 
similarly situated—though not necessarily identical—to proceed with an FLSA collective 
action. See Frank, 

, at *2–3 (citations omitted); Cruz v. TMI Hosp., 
Inc., Civ. No. 14-1128 (SRN/FLN), 

, at *14 (D. Minn. Oct. 30, 2015) 

(citing Nerland v. Caribou Coffee Co., 

 (D. Minn. 2007)). The 
decertification decision falls within a court’s discretion. 

 (citation omitted). 
         1.   Disparate Factual and Employment Settings                  
    An inherent tension exists between Anthem’s summary judgment argument—that 
all NMMs fit within either the administrative or learned professional overtime 

exemption—and its opposition to collective proceedings, citing differences in NMM 
subject areas and work settings. This contradiction highlights the need to evaluate at the 
appropriate level of abstraction. The key question is whether the plaintiffs’ differences 
are substantial enough to outweigh their common experiences under the alleged FLSA-
violating practices. See White v. 14051 Manchester Inc., 

 (E.D. Mo. 
2014) (quotation omitted). On balance here, the similarities of Anthem’s practices with 

respect to NMMs outweigh the individual variations among NMMs that Anthem 
identifies. The employment policies that oversee all NMMs establish a significant 
structural similarity across positions, despite variations in job settings or medical areas. 
    The structural similarity across the NMM positions is apparent from the record. 
Anthem uses standardized job descriptions for each level of NMM position that do not 
vary based on the substance of the authorization requests that the position will process. 

The job descriptions in the record for the NMM I, NMM II, and NMM Lead positions are 
all but identical in their description of the positions’ primary duties. (See generally Doc. 
No. 150-1.) All NMMs are required to follow Anthem’s policies and procedures, 
regardless of their practice group or the type of authorization requests they handled. What 
clinical guidelines were used by which NMMs, substantive differences between the 

guidelines, or that certain authorization requests were more or less complex than others 
are all secondary to the commonalities of the NMM jobs’ structure, qualifications, 
procedures, and scope of authority. All NMMs can approve requests but none can deny. 
All are subject to the same performance evaluation metrics and productivity expectations.  
    Anthem’s contention that differences in case types, job complexities, and 

individual testimonies on work volume and setting make collective adjudication 
unfeasible is belied by the overarching similarities in job structure, qualifications, 
procedures, and authority scope shared among NMMs. Although individual NMMs may 
experience variations in their day-to-day duties, these do not subvert the central question 
of whether their primary job duty of conducting utilization review constitutes nonexempt 
work under the FLSA. Thus, despite some individual variability, NMMs are similarly 

situated in Anthem’s utilization management program and all face the same alleged 
FLSA violation: their work was misclassified as exempt from overtime pay.  
         2.   Anthem’s Individualized Defenses                           
    Anthem asserts that two FLSA overtime exemptions apply here to all NMM 
plaintiffs—the administrative or learned professional overtime exemption. Under the 
circumstances of this case, however, those exemption defenses do not require such 

extensive individualized analysis as might warrant decertification of the collective action. 
As Learing asserts, the common structural aspects of the NMMs’ employment are enough 
to decide their proper exemption status. Unduly focusing on an individual NMM’s 
workload ignores Anthem’s actions that apply equally to all NMMs regardless of the 
medical substance of the individual assignments. Regardless of the type of authorization 

request, NMMs are subject to the same job performance expectations, receive the same 
training on Anthem’s utilization management system, and have their work monitored and 
evaluated in the same way.                                                
    Anthem also references the combination exemption under 

 as 
a defense that requires individualized analysis but does not develop the argument. (See 

Doc. No. 134 at 15–16.) At most, that exemption might apply to an NMM primarily 
performing some combination of exempt duties other than utilization review. Should 
Anthem show that such an inquiry is warranted against an individual plaintiff, it can 
introduce individualized evidence as needed. But merely referencing the exemption does 
not warrant decertification. In sum, Anthem’s exemption defenses are individualized in 
appearance only; whether any exemption applies remains a matter of common resolution. 

         3.   Fairness and Procedural Considerations                     
    Any collective proceeding poses certain logistical difficulties, but those difficulties 
do not render proceeding collectively to be less efficient or expedient than conducting 
many individual trials litigating essentially the same liability issues. Anthem’s logistical 
concerns are not so significant that a collective trial would be unmanageable. Those 
NMMs who have already been deposed offer testimony about their common and 

individualized work experience at Anthem, and they represent a cross-section of the 
various NMM teams and groups within Anthem’s organization. Anthem’s corporate 
witnesses and internal documents and policies represent the company’s actions. That 
representative evidence would permit a factfinder to determine the central liability 
question here: whether NMMs’ primary duty of utilization management as performed 

within Anthem’s system constitutes exempt or nonexempt work.              
    Anthem also raises concerns about how to fairly calculate damages, arguing that 
Learing has not put forward an adequate plan for doing so. Concerns over calculating 
damages, influenced by individual circumstances, do not invalidate the appropriateness of 
collective adjudication. See Cruz, 

, at *17. This aligns with the general 

principle that wrongfully classified employees should not be denied recovery simply 
because they cannot precisely prove the extent of their uncompensated work due to their 
employer’s failure to keep accurate records for those classified as exempt. See Holaway 
v. Stratasys, Inc., 

 (8th Cir. 2014) (citation omitted).  
    This matter does not involve variable pay rates or a payment scheme that depends 
on the type of work performed. It presents a straightforward damages question: if NMMs 

were not properly exempted, they would have a right to overtime pay for all weeks in 
which they worked hours that should have been treated as overtime hours and paid 
accordingly. If necessary, trial could be bifurcated into a liability and a damages phase. 
But differences in the amount of each individual NMM’s alleged overtime hours or the 
possibility that some NMMs did not work any overtime does not compel decertification. 
    Therefore, Anthem’s motion to decertify the FLSA collective is denied. 

    B.   Plaintiff’s Motion to Certify Rule 23 Class                     

    Whether to certify a class under Rule 23 is left to the reviewing court’s broad 
discretion. See Cruz, 

, at *4 (citing Shapiro v. Midwest Rubber 
Reclaiming Co., 

 (8th Cir. 1980)). To certify a class, the plaintiff must 
meet all the requirements of Rule 23(a) and at least one subsection of Rule 23(b). 

 
(quoting In re St. Judge Med., Inc., 

 (8th Cir. 2005)). 
    Rule 23(a) requires Learing to demonstrate that (1) the class is so numerous that 
joinder of all members is impracticable; (2) there are questions of law or fact common to 
the class; (3) the claims or defenses of the representative parties are typical of the claims 
or defenses of the class; and (4) the representative parties will fairly and adequately 

protect the interests of the class. See 

 (quoting Fed. R. Civ. P. 23(a)). Learing seeks 
certification under Rule 23(b)(3), which provides for class certification if common 
questions of law or fact predominate over individual questions and a class is the superior 
method to adjudicate the controversy fairly and efficiently. See Fed. R. Civ. P. 23(b)(3).  
    Learing’s proposed Minnesota class will be certified because the central 
question—whether NMMs performing their roles, as outlined and evaluated by Anthem, 

are doing nonexempt work—remains consistent across the class. This dispute centers on 
a common issue of how NMMs’ utilization review duties are executed within Anthem’s 
employment framework, which is subject to class-wide evidence and does not require 
individualized evidence for each type of authorization request reviewed.  
         1.   Numerosity                                                 

    This District has noted that a putative class of more than 40 is presumptively 
sufficient. See, e.g., Cruz, 

, at *5–6 (citing Lockwood Motors, Inc. v. 
Gen. Motors Corp., 

 (D. Minn. 1995)). Learing’s proposed class 
includes at least the 65 NMMs that received the FLSA collective notice but could include 
more given that the proposed class might include current Anthem employees. See 
Nerland, 

 (disagreeing that notice of FLSA collective accounted 

for all potential class members). Numerosity is satisfied here.           
         2.   Commonality                                                
    Commonality requires the presence of a common contention capable of class-wide 
resolution. Cruz, 

, at *7 (quoting Dukes, 

). It requires 
the class members to have suffered the same injury. 

 (quoting Luiken v. Domino’s 

Pizza, LLC, 

 (8th Cir. 2013)). Even though individuals may not be 
situated identically, commonality remains when the legal question linking class members 
is substantially related to resolving the litigation. See Nerland, 

 
(citations omitted). Factual variances will not defeat commonality if the claims arise from 
a common factual nucleus. 

 (citation omitted).                         
    Learing clears the commonality bar because each NMM allegedly suffered the 

same injury: wrongful classification as overtime exempt. Whether NMMs qualify as 
exempt is the fundamental contention in this suit, which can be resolved in one stroke. As 
explained further in the predominance analysis below, individual dissimilarities among 
NMMs do not have the potential to impede answering the common liability question, 
which is asked and answered based on Anthem’s common practices.           
         3.   Typicality                                                 

    Typicality is fairly easily met, so long as the purported class members have claims 
much like the named plaintiff. Postawko v. Missouri Dept. of Corr., 

 
(8th Cir. 2018) (quotation omitted). Factual variations seldom preclude certification if 
each claim stems from the same conduct and raises the same legal or remedial theory as 
the class claims. See 

 (quoting Alpern v. UtiliCorp United, Inc., 

 

(8th Cir. 1996)).                                                         
    Learing also clears the typicality bar. Anthem classified its NMMs as overtime 
exempt and paid them a salary. The wrongful classification allegedly suffered by Learing 
is the same as that suffered by the proposed class of salaried NMM workers. Whether an 
NMM’s primary duty to perform utilization review qualifies as exempt work is the 

fundamental legal question at issue. That question can be answered across the board by 
finding that utilization review work—as performed by NMMs at Anthem and subject to 
commonly applicable policies and procedures—does or does not qualify as exempt work. 
         4.   Adequate Representation                                    
    Certifying Learing as the representative plaintiff does not present any obvious 

concerns. Anthem raises no concern or argument about Learing that it could not raise 
about any other class member. And as Anthem points out, Learing has experience 
working on NMM teams that process different request types and therefore examine 
different medical necessity criteria. The proposed class counsel has been recognized in 
this District for experience in wage and hour litigation and is competent to represent a 
class or collective. See Netzel v. West Shroe Grp., Inc., Civ. No. 

, at *6 

(D. Minn. May 8, 2017) (collecting cases). Therefore, Learing and her attorneys are 
adequate to represent the class.                                          
         5.   Rule 23(b) Factors                                         
              a.   Predominance                                          
    Predominance in the context of Rule 23(b)(3) involves a detailed evaluation; 

simply having a common question among the class members is not enough to meet this 
criterion. See Ebert v. Gen. Mills, Inc., 

 (8th Cir. 2016). The essence of 
predominance is assessing whether the class is unified enough for a collective legal 
action to be appropriate. See Luiken v. Domino’s Pizza, LLC, 

 (8th Cir. 
2013). This involves determining whether plaintiffs can present a plausible claim of 

wrongdoing using evidence that applies broadly across the class. See Drake v. Steak N 
Shake Operations, Inc., 

 (E.D. Mo. 2017). Individual 
questions might require unique evidence for each class member, while common questions 
can be addressed with uniform evidence or are suitable for resolution as a group. See 

 
The predominance inquiry focuses on liability. See Nerland, 

.  
    Here, liability turns on whether Anthem appropriately classified NMMs as exempt 

administrative employees or learned professionals, which depends on the primary duties 
assigned to the NMM role. Learing offers a path to answering the exemption question 
based on common evidence, while Anthem frames the question at too granular a level. 
The proposed Minnesota class includes NMMs who were employed by Anthem in 
Minnesota, paid on a salary basis, expected to use the same Anthem systems and 
processes for reviewing authorization requests, and subject to the same expectations and 

performance evaluation. The evidence includes consistent job descriptions, Anthem’s 
policies applicable to all, and testimonies about the responsibilities tied to utilization 
review. The record lacks evidence that Anthem decided NMMs’ exemption status worker 
by worker, rather than collectively as a group.                           
    Anthem’s argument that NMM roles differ significantly in primary duties is 

challenged by its own admissions that utilization review is the main responsibility for 
most NMM positions. Anthem argues that utilization review is not the main duty of an 
NMM Lead, pointing to a declaration from a medical manager in Indiana who states that 
the NMM Lead on her team acts as an assistant manager and conducts no medical 
necessity reviews. (See Doc. No. 169-1 at 7 ¶ 18.) That goes against Anthem’s job 

description for the NMM Lead position, which states that the NMM Lead role’s primary 
duties include utilization review activities identical to those in the other NMM roles. (See 
generally Doc. No. 150-1.) In addition, testimony from the Opt-In Plaintiff that worked 
as an NMM Lead for Anthem in Minnesota was that half of her work was spent on 
utilization review. The NMM positions included in the proposed Minnesota class all had 
the same primary work duty.                                               

    Furthermore, on closer inspection, Anthem’s argument about differing NMM job 
duties relates mainly to the varying substance of authorization requests. Although there is 
variation in the substance of the requests (which in turn compels the use of a different set 
of clinical guidelines), the overall process and expectations for how NMMs are meant to 
process a request from start to finish is set by common Anthem policies and practices. All 
NMMs follow a set procedure governed by Anthem’s overarching policies and practices. 

The process and expectations for managing authorization requests are consistent across 
the board, meaning variations in request details do not change the fundamental job duty 
of conducting utilization reviews within Anthem’s system.                 
    In sum, the individualized differences Anthem highlights are not so consequential 
that they overcome the structural commonalities that apply to NMMs regardless of their 

team or the substance of their assigned authorization requests. Although individual 
NMMs varied in their daily routines and work settings, those variations have minimal 
relevance or effect on the central questions relating to whether the positions’ primary 
duty—utilization review—constitutes exempt or nonexempt work. Cf. Bouaphakeo, 

 (variations in individual plaintiffs’ donning and doffing routines did not 

present individualized issues that dominated the action and would prevent collective 
resolution). Individualized issues therefore do not predominate over the more substantial 
and consequential common questions to preclude certification under Rule 23(b). 
              b.   Superiority                                           
    Superiority considers (1) the interest of class members in controlling a separate 

action; (2) the extent and nature of existing litigation about the controversy; (3) the 
desirability of concentrating the litigation in a particular forum; and (4) the difficulties 
likely to be encountered in managing a class action. See Nerland, 

 
(citing Fed. R. Civ. P. 23(b)(3)). These four factors favor finding superiority here. 
    As Learing contends, it seems unlikely that individual NMMs would benefit more 
from individual actions than from this collective lawsuit, but any individual desiring to 

opt out will be given the opportunity. Currently, no other Minnesota case addresses these 
same issues. Therefore, it is sensible to gather all similar claims from Minnesota workers 
into one case, handled in a Minnesota forum.                              
    Although Anthem raises concerns about the complexity of managing a class action 
because of the varied duties among NMM roles, such challenges can be addressed 

through methods like subclassing or modifying the class certification if necessary. 
Testimonies from NMMs about their expected duties and Anthem’s operational 
procedures indicate that the main issues, particularly those related to liability, can be 
resolved with evidence that applies broadly across the class. Whether a given NMM on a 
certain team qualifies as exempt will not turn on that individual NMM’s understanding of 

how to carry out Anthem’s policies and procedures. The commonly applicable policies 
and procedures will determine whether an exemption applies.               
    Collective proceedings are superior for addressing the core issues of this case. 
Whether Anthem’s NMMs in Minnesota performed exempt or nonexempt work within 
Anthem’s utilization management program can effectively be resolved with common or 
representative evidence. The substantive differences between NMM teams are variations 

of a common function within Anthem’s employment structure: medical necessity review 
of authorization requests. Therefore, conducting multiple individual trials rather than a 
class action would be repetitive and inefficient, given the uniformity of the central 
question across all NMM roles. Accordingly, a class action is the superior method of 
adjudicating at least the liability question presented here.              
    Learing’s motion to certify the proposed Minnesota class is granted. 

II.  Summary Judgment                                                     
    Having addressed the parties’ motions for and against collective proceedings, the 
analysis turns to their cross-motions for summary judgment.               
    A.   Legal Standard                                                  
    Cross-motions for summary judgment do not change the summary judgment 

standard. Hanson v. Loparex, Inc., 

 (D. Minn. 2011). Summary 
judgment is proper if the record establishes that there is no genuine issue of material fact 
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To 
determine which facts are material, courts should look to the substantive law in a dispute 
and identify the facts which are critical to the outcome. Com. Union Ins. v. Schmidt, 

 (8th Cir. 1992). A genuine issue of material fact exists when the evidence 
is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson v. 
Liberty Lobby, 

 (1986). If the evidence permits a verdict for the 
nonmoving party, then summary judgment is inappropriate. See Krenik v. Cnty. of Le 
Sueur, 

 (8th Cir. 1995). On summary judgment, evidence is considered 
in the light most favorable to the nonmoving party, drawing all reasonable inferences in 

that party’s favor. See Windstream Corp. v. Da Gragnano, 

, 802–03 (8th 
Cir. 2014).                                                               
    B.   Analysis of Anthem’s Overtime Exemption Defenses                
    As the employer, it is Anthem’s burden to prove that an overtime exemption 
applies, and it must do so by showing that the employees fit “plainly and unmistakably 
within the exemption’s terms and spirit.” Cruz, 

 (quoting Spinden 

v. GS Roofing Prods. Co., 

 (8th Cir. 1996)). Anthem contends that 
Learing and the NMMs conclusively qualify for the administrative exemption under 

 and the learned professional exemption under 

. 
    Courts are instructed to interpret FLSA exemptions in a balanced manner, neither 
too narrowly nor with bias towards either employees or employers. See Encino 

Motorcars, LLC v. Navarro, 

 (2018); Coates v. Dassault Falcon Jet 
Corp., 

, 1047 n.7 (8th Cir. 2020). The analysis of the exemptions focuses 
on the nature of the workers’ primary duties and not on who performs the work. See 

 (“any employee . . . whose primary duty is . . .”); 541.301 (“an 
employee’s primary duty must be . . .”). What matters are the actual job responsibilities 

rather than facial titles or qualifications. To decide the issue based on Anthem only hiring 
RNs for NMM positions is to avoid examining the job duties themselves. Cf. Rego v. 
Liberty Mut. Managed Care, LLC, 

 (E.D. Wis. 2019) (citations 
omitted). And this is not a matter of simply invoking “magic words” such as “judgment” 
or “discretion” in reference to employees’ duties—the important inquiry is what the job 
responsibilities in fact entail. See Rego, 

 (“That Plaintiffs may use 

the words ‘nursing rationale or ‘clinical judgment’ when speaking about their work does 
not transform the nature of the work itself. To allow the use of such terminology to 
trigger an exemption without a close look at the job duties would undermine the purpose 
of the FLSA maximum hours provision.”).                                   
    Under the regulations, determining whether an employee is exempt from overtime 
involves assessing if their salary and primary job responsibilities align with specific 

regulatory criteria. See 

 (“The exempt or nonexempt status of any 
particular employee must be determined on the basis of whether the employee’s salary 
and duties meet the requirements of the regulations . . . .”). It is not disputed that the 
NMMs here meet the salary requirement for exemption, making the decisive issue for 
summary judgment the characteristics of their primary work duties.        

    The two FLSA exemptions under consideration here are the administrative 
exemption and the learned professional exemption.                         
         1.   Administrative Exemption                                   
    Two elements must be satisfied to qualify for the administrative exemption: (1) the 
primary duty is performing office or non-manual work directly related to the management 

or general business operations of the employer or the employer’s customers; and (2) the 
primary duty includes the exercise of discretion and independent judgment with respect 
to matters of significance. 

(a). The “primary duty” is the principal, 
main, major, or most important duty. 

 § 541.700(a). The primary duty is utilization 
review work performed by NMMs at Anthem in Minnesota.                     
              a.   Directly related to management or general business    
                   operations                                            

    NMMs’ role in reviewing authorization requests per Anthem’s contracts with Blue 
Cross Blue Shield raises questions about whether their work directly relates to assisting 
with the running or servicing of Blue Cross Blue Shield’s business, contrasted to 
performing occupational functions like production line or product sales workers. See 

(a). The record reflects that NMMs operate more similarly to production 
line workers than to business consultants who manage or service the customer’s business. 
    While NMMs’ medical necessity decisions play a part in customer operations by 
determining insurance payment authorizations, they do not engage in direct business 

management activities. NMMs do not directly consult insurance company customers 
about how they go about processing insurance coverage; do not perform work that 
directly relates to how customers operate as a business; and are not directly involved in 
managing, operating, or otherwise running the customers’ businesses. NMMs’ work 
product is their response to an authorization request. That response is then used by 

customers like Blue Cross Blue Shield to carry out their business functions that depend 
on having that response. But the NMMs have no involvement at that point.  
    Because the record does not support a finding that NMMs’ primary duties are 
directly related to managing or assisting in the general business operations of Anthem or 
Anthem’s customers, Anthem does not meet the initial requirement for the administrative 

exemption. Summary judgment is thus granted for Learing on that basis.    
              b.   Discretion and independent judgment                   

    Despite Anthem’s failure on the first “directly related” requirement, the 
administrative exemption’s requirement for discretion and independent judgment is also 
not met. The exemption criteria require that discretion and judgment involve evaluating 
and deciding among various actions, not merely following established procedures or 
guidelines within strict limits. See 

(a); 541.202(e) (to meet the 
exemption requires more than the use of skill in applying well-established techniques, 
procedures, or specific standards described in manuals or other sources). 

    For example, inspection work seldom meets the exemption because inspectors 
normally perform “specialized work along standardized lines involving well-established 
techniques and procedures[,] rely on techniques and skills acquired through special 
training or experience[, and] have some leeway in the performance of their work but only 
within closely prescribed limits.” 

 § 541.203(g); see also § 541.704 (no exemption for 

employees who apply well-established techniques or procedures within closely 
prescribed limits to determine the correct response to an inquiry or set of circumstances). 
    It was this inspector example that the Fifth Circuit found closely mirrored 
utilization review work and compelled finding the administrative exemption inapplicable. 
See Clark v. Centene Co. of Texas, 

 (5th Cir. 2016). Similarly 

considering the utilization work performed here, NMMs at Anthem use well-established 
materials to complete their work, rely on skills acquired through training on the job, and 
operate within a governing program built to ensure the worker makes the correct response 
to an authorization request. NMMs are expected to strictly follow Anthem’s policies and 
procedures when finding and applying the proper medical necessity guideline. Any 
leeway exists only within Anthem’s closely prescribed requirements.       

    Anthem authorizes NMMs to take two possible courses in response to an 
authorization request and dictates what compels each. If the applicable guideline is met, 
the NMM must approve the request. If not, the NMM must recommend denial and 
escalate the decision to an Anthem Medical Director for final review. The NMM may 
request additional records from the provider, but only as needed for the NMM to decide 
whether to approve or recommend denial. NMMs do not evaluate possible courses of 

conduct. Their only options are to approve or recommend denial, based on the applicable 
medical necessity guideline and inspection of the medical records.        
    While reviewing authorization requests requires skill, the record does not support 
a finding that the level of skill rises above applying well-established guidelines to a set of 
medical records within closely prescribed limits. Therefore, the administrative exemption 

fails for this reason as well.                                            
         2.   Learned Professional Exemption                             
    Turning to the learned professional exemption, three elements must be met to 
qualify: (1) the employee’s primary duty must be performing work that requires advanced 
knowledge; (2) the advanced knowledge must be in a field of science or learning; and  

(3) the advanced knowledge must be customarily acquired by a prolonged course of 
specialized intellectual instruction. See 

(a). RNs are generally 
considered learned professionals, while LPNs and other similar health care employees 
generally are not. See 

 § 541.301(e)(2). As above, the primary duty under consideration 
is utilization review work performed by NMMs at Anthem in Minnesota.      
              a.   Work requiring advanced knowledge                     

    The advanced knowledge question is whether NMMs’ work involves the   
consistent exercise of discretion and judgment versus routine mental work. See 

(b). Based on the record here, NMMs’ utilization review work at Anthem 
mostly involves routine mental work, not consistent discretion and judgment. Anthem’s 
program structures, processes, training, and especially its performance evaluation that 
requires NMMs to choose the correct case outcome at least 90% of the time eliminate 

variability by design, which minimizes discretion and judgment.           
                   i.   Proper judgment and discretion analysis considers 
                        the nature of the work itself, and not in comparison 
                        to the arguable learned profession at issue      

    The parties fundamentally disagree about the proper approach to analyzing 
discretion and judgment. Neither side points to binding caselaw from the Eighth Circuit 
that controls the analysis. Instead, Learing points to Rego v. Liberty Mut. Managed Care, 
LLC, 

 (E.D. Wis. 2019) and Clark v. Centene Co. of Texas, L.P., 

 (W.D. Tex. 2014), aff’d, 

 (5th Cir. 2016) as instructive, 
while Anthem contends that the two-step inquiry developed by the Second Circuit in 
Pippins v. KPMG, LLP, 

 (2d Cir. 2014), applied to utilization review 
nurses in Isett v. Aetna Life Ins., 

 (2d Cir. 2020), should control.  
    Rego and Clark focus on the nature of the work duties, while the Isett approach 
focuses on the nature of the person doing the work. Rego found that, based on the nature 
of utilization review work as performed, the utilization review nurses relied mostly on 
medical necessity guidelines, and not consistent use of their own discretion and 
judgment, to determine whether an authorization request should be granted. See 367 F. 

Supp. 3d at 857–58. The work therefore did not satisfy the advanced knowledge 
requirement. See 

 at 859–60.                                           
    Anthem argues that Rego should be summarily rejected here, as it was in Isett. In 
Isett, the Second Circuit critiqued Rego’s advanced knowledge analysis because it “did 
not account for the unique character of the learned professional exemption” and failed to 
apply the two-step test from Pippins. See 

, 138 n.77. Rego’s reasoning is 

not so flawed. Rather than apply an out-of-circuit test (which the Second Circuit 
developed in a case involving accountants and had not yet applied to utilization 
management), Rego took a different approach. It repurposed the analysis of the more 
rigorous “judgment and independent discretion” required for the administrative 
exemption to consider the less rigorous “judgment and discretion” required for the 

learned professional exemption (citing Seventh Circuit authority allowing it to do so). See 

.                                                   
    Isett further criticized Rego for relying on Clark because that case did not analyze 
the advanced knowledge element of the learned professional exemption. See Isett, 

 n.59. But Rego simply agreed with Clark’s characterization of utilization 

review work as “inspector-type work” and then independently found that the utilization 
review work at issue is best described as routine mental work. See 

. Rego offers a useful and persuasive approach to evaluating the characteristics of 
utilization review work outside the Second Circuit.                       
    Clark is distinct from this case, however. Anthem expressly disclaims the use of 
nursing judgment from the primary duties for its utilization review jobs that require LPN 

licensure. (Compare Doc. No. 131-50 with Doc. No. 131-49.) In Clark, the learned 
professional exemption did not apply because the employer did not distinguish between 
LPN-level and RN-level utilization review positions. See generally 44 F. Supp. 3d at 
676–81. Clark’s approach to the exemption analysis and assessment of the utilization 
review work and industry is informative, but as its facts are materially distinct, Clark will 
not dictate the outcome on advanced knowledge.                            

    Anthem’s preferred authority, Isett from the Second Circuit, will not dictate the 
outcome either. A key factual difference in Isett is that the RN-level “nurse consultants” 
held final review authority over approval recommendations made by LPN-level “nurse 
associates” who had no authority to approve a case. See 947 F.3d at 126–27. By contrast, 
RNs, and LPNs at Anthem hold the same level of authority. That distinction aside, Isett’s 

two-step test will not be applied here because it overcomplicates and colors the 
exemption analysis based on a characteristic of the worker rather than the work itself. 
Isett wrote that an exclusive focus on work duties misinterprets the analytical framework 
established in Pippins. See 

. Pippins does not control here, and closely 
examining work duties as actually performed is the proper FLSA exemption analysis. 

                   ii.  Utilization review nurses and patient care nurses 
                        review medical necessity for distinct purposes   

    Isett’s test is also a poor fit because the parties fundamentally disagree over 
whether NMMs work in the field of nursing (but in a nontraditional setting) or in the field 
of insurance. Even without resolving the debate, a brief comparison of RNs working in a 
patient care setting and NMMs conducting utilization review reveals a meaningful 

distinction in the nature of their work that the Issett test might fail to appreciate. 
    Patient care RNs review records and assess a patient’s condition for purposes of 
deciding the course of treatment. The NMMs’ primary task is to make an insurance 
coverage determination based on an inspector-clipboard checklist appraisal of medical 
records for the presence or absence of medical necessity criteria. See Rego, 

 (distinguishing utilization review nurse role from a registered nurse in 

practice); Clark, 

 (describing the utilization management role in the 
insurance process). NMMs do not coordinate patient care directly or remotely. An 
NMM’s review affects only how a treatment is paid for, not whether the treatment will be 
provided.                                                                 
    RNs in patient care settings and NMMs at Anthem both review medical necessity 

and even use some of the same resources to do so. But patient care RNs review medical 
necessity by assessing patient needs for a possible course of treatment. NMMs review 
medical necessity by inspecting medical records to decide insurance coverage. That 
distinction differentiates work that requires consistent use of judgment and discretion 
from routine mental work. Based on how NMMs perform utilization review within 

Anthem’s program, the record reflects that NMMs do not consistently use judgment or 
discretion, nursing-like or otherwise, to qualify as learned professionals. 
                   iii.  Anthem’s utilization review program is designed to 
                        limit variability and avoid incorrect medical    
                        necessity determinations                         

    According to Isett, it is “a hallmark of informed professional judgment to 
understand when a problem can be dealt with by the professional herself . . . and when 
the issue needs to be brought to the attention of a senior colleague (i.e., a medical 
director) with greater experience, wisdom, or authority.” 947 F.3d at 134–35. No such 
judgment is available to NMMs here. Based on how Anthem trains and evaluates NMMs’ 
performance, it views their medical necessity determinations as true or false 
propositions—not judgment calls—and operates a system in which NMMs have no 
choice other than to approve or recommend denial, depending on what is seen in the 
records. NMMs at Anthem lack the professional discretion to assess whether they can 
handle a request themselves or if it should be elevated to the next level of authority. 
Anthem’s policies control, dictating when an NMM may or may not elevate a request. 

    Anthem argues NMMs nonetheless exercise sufficient judgment and discretion, 
depending on the complexity of the authorization request, the nature of the applicable 
guideline, and whether an NMM believes there is a basis to approve the request despite 
not satisfying the applicable medical necessity criteria. Anthem further contends that 
particular guidelines might require subjective interpretation, and that some NMMs even 

advocate for a Medical Director to approve a request that the NMM had to deny.  
    The record does not support a finding that NMMs consistently exercise such 
discretion and judgment. Discussions with a Medical Director where an NMM advocates 
to approve a request despite recommending denial are the exception, not the rule. In fact, 
NMMs handling outpatient requests do not discuss denial recommendations with Medical 
Directors at all. NMMs are mainly tasked with sifting through medical records to identify 

whether specific criteria are present; the record does not show them to be consistently 
analyzing, interpreting, or deducing from the records whether a guideline is satisfied. 
Anthem’s NMMs have limited discretion and exercise judgment infrequently at most. 
Their work is mostly routine and does not involve consistent discretion and judgment 
sufficient to meet the regulation’s definition of work requiring advanced knowledge. 
    Finally, Anthem correctly points out that using manuals, guidelines, or established 

procedures does not necessarily preclude exemption. See 

. But no 
exemption (learned professional, administrative, or otherwise) is available for employees 
who apply well-established techniques or procedures described in manuals or other 
sources within closely prescribed limits to determine the correct response to an inquiry or 
set of circumstances. See 

 The record shows that NMMs working in Anthem’s 

utilization review program fit that description. NMMs read and consider the applicable 
medical necessity criteria on their own, but they do so according to Anthem’s policies 
and procedures, using Anthem’s systems, and subject to routine examinations evaluating 
whether they correctly decide cases at an acceptable rate. Other than reading a guideline 
and looking at a medical file, Anthem closely prescribes nearly every other aspect of the 

utilization review process. NMMs use clinical guidelines within the closely proscribed 
confines of Anthem’s utilization review program to determine the correct response to an 
authorization request. Under § 541.704, that work does not qualify as exempt. 
                   iv.  Conclusion on advanced knowledge                 
    The record supports a finding that utilization review work conducted by NMMs 

within Anthem’s program is routine mental work, and does not support a finding that 
their work requires consistent discretion and judgment. Accordingly, Anthem cannot 
establish the advanced knowledge requirement for the learned professional exemption to 
apply. Thus, summary judgment is granted for Learing on that basis.       
              b.   Customarily acquired by a prolonged course of         
                   specialized intellectual instruction                  

    Because the learned professional exemption fails on advanced knowledge, there is 
no need to consider specialized intellectual instruction. Even so, it is not immediately 
clear that the specialized intellectual instruction element would be satisfied here.  
    The specialized intellectual instruction element examines the standard prerequisite 
to enter the profession. See 

(d). The best evidence that a worker 
meets the requirement is possessing the appropriate academic degree. See 

  
    NCQA establishes LPN-level credentials as the minimum required to perform 
utilization review work. Utilization management is not taught in nursing school. And 

Anthem previously staffed LPNs and RNs on the same utilization review teams but now 
distinguishes between the roles. Based on that evidence, RN-level academic training does 
not appear to be the standard prerequisite to join the utilization review industry. See, e.g., 
Rego, 

 (finding that standard prerequisite for utilization review 
work is LPN-level credentials, despite employer requiring its utilization reviewers to be 

RNs). Anthem requires RN licensure for utilization review work that it deems more 
complex or difficult. But that is Anthem’s choice, not an accreditation requirement. 
Anthem’s business practice does not equate to an industry standard for entering the field.  

    B.   Analysis of Anthem’s Section 260 Good Faith Defense             
    Learing also seeks summary judgment on any good faith defense to liquidated 
damages that Anthem may assert, arguing that Anthem has not produced sufficient 
evidence of its decision to classify the NMM positions as exempt.         
    An employer who violates the FLSA is liable for unpaid wages plus an equal 
amount of liquidated damages. See 

(b). Courts may reduce or deny 

liquidated damages if the employer shows its actions were taken in good faith and that it 
had reasonable grounds to believe its actions would not violate the FLSA. See 

. The burden of proof is difficult, requiring the employer to establish its honest 
intention and affirmative steps to learn and follow the FLSA’s requirements. Chao v. 
Barbeque Ventures, LLC, 

, 941–42 (8th Cir. 2008).             

    Anthem explains that the administrative and learned professional exemptions, 
including the regulation recognizing that RNs generally qualify as learned professionals, 
have been long established. Anthem does not otherwise show what steps it took to 
determine FLSA requirements for the NMM positions or point to evidence showing the 
company had reasonable grounds to believe that classifying NMMs as exempt did not 

violate the FLSA. In fact, FLSA lawsuits against Anthem’s predecessor dating to 2008 
indicate that Anthem has been on notice of its potentially unlawful classification of 
utilization review nurse positions. See Lazaar v. Anthem Cos., No. 22-cv-3075(JGK), 

, *3 (S.D.N.Y. Jan. 25, 2023) (finding that allegations of prior 
misclassification lawsuits against Anthem predecessor sufficient to raise question of 
willful FLSA violation for purposes of determining applicable statute of limitations); see, 

e.g., Ruggles v. WellPoint, Inc., 

, 63–64 (N.D.N.Y. 2008). The existence of 
applicable regulations and the fact that Anthem’s NMMs are salaried positions do not 
show Anthem’s intent or classification process.                           
    The purpose of summary judgment is to dispose of factually unsupported claims 
and defenses. See Schmidt, 

; see also Celotex Corp. v. Catrett, 

, 323–24 (1986). Anthem has not identified evidence that would support a verdict in 

its favor on a good faith defense to liquidated damages. Summary judgment is therefore 
granted for Learing on Anthem’s good faith defense.                       

    For these reasons, and based on all the records, files, and proceedings here,  
IT IS HEREBY ORDERED that:                                                

    1.   Plaintiff’s Motion for Partial Summary Judgment (Doc. No. 126) is 
GRANTED.                                                                  
    2.   Defendants’ Motion for Summary Judgment (Doc. No. 139) is DENIED. 
    3.   Defendants’ Motion to Decertify Conditionally Certified Collective (Doc. 
No. 133) is DENIED.                                                       

    4.   Plaintiff’s Motion to Certify Class (Doc. No. 145) is GRANTED as 
follows:                                                                  
         a.   The following Rule 23 class is certified:                  
              All persons who worked as Medical Management Nurses, Utilization 
             Management Nurses, Utilization Review Nurses, or other similar job 
             titles who were paid a salary and treated as exempt from overtime 
             laws, and were primarily responsible for performing medical 
             necessity reviews for Defendants in Minnesota from three years 
             prior to the filing of this Complaint through judgment.    

        b.   Plaintiff must file an amended proposed class notice reflecting the 
   rulings made in this Order within 14 days, after which an order setting a 45-day 
   notice period and authorizing Plaintiff’s counsel to mail the class notice will be 
   issued. If the notice will be sent to individuals who already received notice of the 
   FLSA action, the amended notice should explain why they are receiving a second 
   notice and explain the opt-out procedure that applies to the state law claims. 
   Defendants will be permitted to raise its objections to the amended notice by filing 
   a letter with the court within 7 days of Plaintiff’s filing the amended notice. 
        c.   Plaintiff Christine Learing is appointed Class Representative. 
        d.   Nichols Kaster, PLLP is appointed Class Counsel.           
        e.   Defendants are ordered to produce a list of all individuals who 
   worked in a medical management nurse role in Minnesota or otherwise fit the 
   certified class description at any time in the three years prior to the filing of the 
   Complaint in this matter.                                            
Date: March 22, 2024           s/ Jerry W. Blackwell                     
                              JERRY W. BLACKWELL                        
                              United States District Judge