Class-Action

Southern District of Illinois Federal Court Conditionally Certifies FLSA Overtime Class-Action

February 21, 2011 | Peter S. Lubin and Patrick Austermuehle

Whether intentional or not, many companies implement policies and procedures that create violations of both federal and state wage laws. In our years of practicing law, Lubin Austermuehle has seen many such policies, and our Crystal Lake overtime attorneys have helped many previous clients victimized by them. Our lawyers recently discovered a wage and hour class-action case regarding one such policy and wanted to share it with our readers.

In Marshall v. Amsted Industries, Inc., the two named Plaintiffs worked at Defendants’ steel foundry as an hourly leadman and hourly chipper, respectively. Plaintiffs filed a class-action suit for unpaid overtime and a failure to keep accurate payroll records pursuant to the Fair Labor Standards Act (FLSA). They sought conditional certification of a class comprised of all current and former hourly employees who worked at Defendants’ facility in the last three years. Plaintiffs alleged that Defendants implemented a company policy that all hourly workers had to perform maintenance and service tasks as well as don protective clothing prior to the beginning of their work shifts. Additionally, Plaintiffs had to carry out shut-down and clean-up procedures after the end of their shifts, but were never compensated for the work performed during these times. In response to Plaintiff’s motion for conditional certification, Defendants’ moved to de-certify the action.

The Court found that they met the requirements of certification under FLSA and conditionally certified a class, despite the presence of four different collective bargaining agreements and varied job titles of the potential plaintiffs. The Court based their conditional approval on the fact that all of the hourly workers were similarly situated enough to allow Plaintiffs to send out opt-in notices. In so holding, the Court decided that Defendans’ company policies of requiring workers to complete pre- and post-shift tasks applied equally to all of the hourly workers and deprived them of their overtime pay.

Amicus Brief Filed by Illinois Trial Lawyers Association and National Association of Consumer Advocates in Illinois Class Action Appeal Regarding Government Required Processing Fee That is Not in Fact a Government Charge

February 14, 2011 | Peter S. Lubin and Patrick Austermuehle

The Illinois Trial Lawyers Association and the National Association of Consumer Advocates filed an amicus or friend of the Court brief before Illinois’s First District Appellate Court in an appeal in a consumer fraud and breach of contract class action Lubin Austermuehle is prosecuting. The brief explains why the right to pursue class actions is so important to consumers who cannot afford an attorney to correct small frauds or unfair practices which can result in Defendants reaping large gains. The brief states:

Another significant statement that appears in the defendant’s brief is the following:
“If the Circuit Court ruling is reversed, it is highly likely this case will be settled, given the low dollar value of Plaintiff’s individual claim for damages and the fact that the Plaintiff has no evidence that any other Advance customer allegedly also misunderstood the Governement Required Processing Fee. …

As to the statement that if the class certification decision is reversed, it is highly likely the case will be settled, given the low dollar value of the plaintiff’s individual claim. This is precisely why this claim needs to proceed as a class action.

As pointed out by Judge Posner, a defendant who resists a class action by stating that there are a multitude of class members makes no argument at all. “The more claimants there are, the more likely a class action is to yield substantial economies in litigation. It would hardly be an improvement to have in lieu of this single class action, 17 million suits, each seeking damages of $15 to $30 . . . The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30. But a class action has to be unwieldy indeed before it can be pronounced an inferior alternative – no matter how massive the fraud or other wrongdoing that will go unpunished if class treatment is denied – to no litigation at all.” Carnegie v. Household International Inc., 376 F.3d 656, 661 (7th Cir. 2004) (emphasis in original).

The courts developed the class action device to handle cases like this one. “The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997).

The Defendant has tipped its hand in its statement that the case will settle if the court reverses class certification. This is because if the court reverses class certification the defendant will pay off the Plaintiff by refunding the small sum of money it managed to take from it …

To review the full brief click here

Illinois District Court Holds that Termination is Not a Wage Reduction under FMLA

February 9, 2011 | Peter S. Lubin and Patrick Austermuehle

We here at Lubin Austermuehle have extensive experience as Joliet overtime class-action lawyers and are constantly scouring the federal court dockets in Illinois for cases that may help our practice. One particularly instructive opinion was issued by the Northern District of Illinois, Eastern Division earlier this year in Ottaviano v. Home Depot Inc.

In Ottaviano v. Home Depot Inc., the Plaintiff employees worked for Home Depot as assistant store managers, and allege that they and their fellow class members were misclassified as exempt employees. Plaintiff’s claimed that Defendant’s misclassification was intentional for the purpose of circumventing the Illinois Minimum Wage Law (IMWL). Defendant Home Depot denied the claims and filed to dismiss the action through a motion for summary judgment.

The named Plaintiffs had worked for Defendant between approximately two to six years, and had worked well in excess of forty hours per week during the entirety of their employment. During the time that the Plaintiffs worked for Home Depot, they were paid a salary and were required to work fifty-five hours a week. Home Depot requires that all assistant store managers (ASM), including Plaintiffs, go through a training stage for two to eight weeks before they are deemed to be a qualified and capable ASM able to fulfill the responsibilities required for the position. The trainee ASM’s are classified as exempt by Defendants and are paid a salary during this period. Defendant has a universal policy of scheduling its ASM’s for fifty-five hours per week, and Home Depot terminates assistant store managers who fail to work the hours they are scheduled.

Plaintiffs filed their class action alleging that they were owed overtime for the training period and for every other week of their employment with Home Depot. Plaintiffs contended that Defendant’s policy of terminating ASM’s who do not work fifty-five hours a week is effectively a wage reduction under the Federal Labor Standards Act (FMLA). Plaintiffs also argued that under the salary-basis test, any employee whose wages can be reduced by their employer is non-exempt. The Court did not find Plaintiffs’ arguments persuasive, and in dismissing the claims Judge Dow cited a U.S. Supreme Court ruling that true exempt employees are disciplined by terminations, demotions, or restricted work assignments, as the Plaintiffs were, instead of wage deductions. The District Court went on to say that employers are permitted to set requirements for the overall number of hours worked by their exempt employees. Finally, the Court granted summary judgment to dismiss the overtime claims for the training period because they were barred by the applicable statute of limitations.

Appellate Court Certifies Class-Action in Title Insurance and Consumer Fraud Act Case

February 7, 2011 | Peter S. Lubin and Patrick Austermuehle

The purchase of land is a complex and multi-layered process that presents many opportunities for not only misunderstandings and mistakes, but also fraud and misrepresentations. Lubin Austermuehle has many attorneys who focus on handling consumer fraud cases, so we are always tracking developments in that field of the law. Chultem v. Ticor Title Insurance is a recent Illinois appellate decision concerning title insurance agent kickbacks in the sale of real properties here in Illinois.

Chultem v. Ticor Title Insurance began as two separate class-actions that were consolidated into one case. In both cases, however, Plaintiffs purchased a parcel of land that also included the purchase of a title insurance policy from Defendants. Plaintiffs were sold the title insurance by an attorney agent who also represented one or more of the parties in the real estate transactions in question. Defendants, as title insurance companies, paid these lawyer agents an additional sum “over and above the attorney fees” paid to them by their clients (who were parties to the transaction).

Plaintiffs filed suit because Defendants paid the attorney agents based upon “the amount of insurance premiums generated from the referred clients” instead of for the services that the lawyers actually performed in their role as title insurance agents. In doing so, Plaintiffs alleged that in doing so, Defendants violated the Title Insurance Act and the Consumer Fraud and Deceptive Business Practices Act. Plaintiffs sought to certify a class, but the lower court denied certification because it would not be possible to determine across the board liability. Plaintiffs then filed an appeal.

On appeal, the Court addressed Defendants’ argument that a transaction-by-transaction analysis would be required in order to determine liability, and as such common issues could not predominate as required for class certification. The Court did not find Defendants’ arguments persuasive, however, because the agreement between the attorney agents and Defendants provided for a pro forma commitment. The Court went on to reason that if Plaintiffs are able to show that the agreements were pro forma and that the agents received full compensation as insurance agents, then liability for all claims could be established. Therefore the Court reversed the lower court ruling and remanded the case consistent with the finding that the Plaintiffs had satisfied the predominance requirement for class-certification.

Consumer Law and Policy Blog Reports on New California Supreme Court Opinion Affirming Consumer’s Right to Sue for False Advertising Claims

February 6, 2011 | Peter S. Lubin and Patrick Austermuehle

Consumer Law and Policy Blog reports:

In a closely watched case, the California Supreme Court on Thursday issued a decision preserving the broad availability of the state’s principal consumer protection laws in cases involving mislabeled goods.The question at issue in Kwikset v. Superior Court (Benson) was whether a consumer who has bought a product that was mislabeled — a “union-made” shirt that was in fact manufactured in a sweatshop, “organic” produce that was grown with pesticides, or (as in this case) a “Made in the USA” lockset that had actually been partly manufactured in Taiwan and Mexico — may bring suit under the Unfair Competition Law (UCL) and the False Advertising Law (FAL). Proposition 64, passed by referendum in 2004, inserted in both laws a requirement that a private plaintiff have “lost money or property.” But what if the product the customer received was perfectly functional even if it wasn’t what the customer had ordered? Was there still a loss of money or property? The Court of Appeal thought not: since the item received was of equal value, plaintiffs had not “lost money” and therefore could not bring a claim under the UCL or FAL.

The California Supreme Court, however, disagreed. The Supreme Court held that neither the language nor the logic of Prop 64 precluded suits by consumers who did not get what they paid for. “Plaintiffs who can truthfully allege they were deceived by a product’s label into spending money to purchase the product, and would not have purchased it otherwise, have ‘lost money or property’ within the meaning of Proposition 64 and have standing to sue.” It doesn’t matter that to some other people, or by some objective measure, the mislabeled product is worth as much as the one the consumer expected. What matters is the consumer’s subjective valuation.

Courthouse News Reports: “Class Claims AT&T Rigs Bills for iPhones”

February 6, 2011 | Peter S. Lubin and Patrick Austermuehle

Courthouse News Reports:

AT&T Mobility faces another federal class action involving its iPhone and iPad services. This one claims that “AT&T’s bills systematically overstate the amount of data used on each data transaction involving an iPhone or iPad account,” and bills customers for data transactions even if they disable their phones and leave them untouched – as the plaintiff’s experts did.

The class says AT&T’s billing system “is like a rigged gas tank that charges pump that charges for a full gallon when it pumps only nine-tenths of a gallon into your car’s tank.”

NPR Reports: “New York Tackles Wage Theft”

February 6, 2011 | Peter S. Lubin and Patrick Austermuehle

Lubin Austermuehle is a firm of dedicated attorneys who focus on nationwide class action lawsuits. Our firm has successfully prosecuted wage and hour class actions for years and we pride ourselves on getting results. Our Chicagoland area lawyers know the overtime laws and have dealt with the issues that arise from wage claims. Many employers misclassify employees as being exempt from overtime laws and pay salary wages instead of hourly wages to avoid paying overtime. Some employers mistakenly classify employees as exempt and others intentionally do so in order to circumvent the law. In either case, workers do not receive the wages they should, and filing a lawsuit can help to recover their wages. Lubin Austermuehle serves many clients in Chicago, Lincolnshire, and Libertyville, but also represents clients across the nation who have not been paid for the overtime hours that they worked. If you believe that you are owed overtime wages, contact one of our Chicago wage and hour attorneys by phone at 1 630-333-0333, or through our online form.

The Times Herald Record Reports: “Orange County Man Leads National Class-Action Suit Against Wristband-Maker”

February 6, 2011 | Peter S. Lubin and Patrick Austermuehle

Snake oil salesman have been around our country for well over a hundred years. With low cost cable and internet advertising readily available the art of selling products that promise the moon but don’t deliver has reached new heights. Add some celebrity endorsements and a clever informercial and the money flows in.

Class-actions alleging that Power Balance wristbanks which are endorsed by NBA stars Shaquille O’Neal and Lamar Odom don’t turn the wearers into super star athletes and don’t provide any of the promised benefits have been filed all around the country, including a new alleged class-action suit in Orange County California according to an article in the Times Herald Record. To read the full article click here.

Our Nationwide class action lawyers have filed class-actions regarding alleged informercial scams and to recover monies consumers have lost due to false advertising. We also help consumers and workers who have been ripped off by all kinds of frauds whether they be mass frauds, failure to pay minimum wages or overtime pay or an indvidual car sale. We have resolved class action claims for hundreds of millions of dollars in benefits to the class and also work just as hard to represent individual consumers who have been ripped on in a single transaction. For instance, we just settled an indivual car fraud case for a $100,000. The victim spent all of her savings of $9,000 to purchase a used car from a major Chicago Automobile dealer. The Autodealer misrepresented that the car was in good condiction and concealed that it was in reality 3 cars welded together with 3 different VIN numbers. The dealer paid all of our attorneys fees and costs and the remainder of the money in excess of $45,000 went to the victim who didn’t have to pay any fees or costs other than the $250 fee of the expert appraiser to pursue the case.

Lubin Austermuehle attorney Peter Lubin has been selected by Super Lawyers as one of the top class-action attorneys in Illinois as rated by their peers.

Reuter’s Reports: “B of A to Pay $410 million to Settle Over Draft Lawsuit”

February 6, 2011 | Peter S. Lubin and Patrick Austermuehle

A number of national banks have been facing class-action lawsuits for allegedly misusing over draft fees on checking accounts to generate hundreds of millions of dollars in extra revenues. The way the Banks have achieved this is by reorganizing debits from debit cards by the size of the transaction as opposed to in date order and also denying customers the option of turning the transaction down and then charging large fees for the overdrafts.

Reuters reports that Bank of America has agreed to pay $410 million to settle a class-action lawsuit that has been pending for a number of years which makes these very allegations. To read the full article click here.

Our Woodstock, Illinois consumer rights private law firm handles individual and class action predatory lending, unfair debt collection, lemon law and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. The Chicago consumer rights attorneys at Lubin Austermuehle are proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

NPR Reports: “For-Profit Colleges Encouraged Fraud, Used Deceptive Marketing, GAO Reports”

January 4, 2011 | Peter S. Lubin and Patrick Austermuehle

Our Chicago consumer rights attorneys are pursuing and investigating class-action lawsuits against for profit trade schools that have allegedly duped students into taking classes even though there is little or no prospect of the students obtaining work in the field after taking the course. We have obtained class certification in one such case and seeking to file other cases under the correct factual circumstances.

If you have been duped into paying a subtantial sum to a for profit trade school only to find that it is impossible to find a job in the field, please contact one of our Chicago consumer rights lawyers online by clicking here. Lubin Austermuehle’s Oak Brook and Chicago consumer class action attorneys have been handling consumer rights and class action cases for over a quarter century. You can view the the types of cases we have handled at our website.