Chicago Business Litigation Lawyer Blog

Federal District Court in Illinois Authorizes Class Notice in Warehouse Worker Overtime Litigation

March 6, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The holiday season is a busy time for many corporations and particularly for those tied to the retail industry, increased holiday business usually means that employees have to work longer hours to keep up with consumer demands. Our Aurora overtime attorneys came across a case that illustrates what can happen when employers fail to compensate employees who work extra hours during such times of increased workflow.

In Nunes v. Chicago Import Inc. Plaintiffs worked for Defendant as warehouse laborers responsible for loading and unloading merchandise from delivery trucks and keeping the warehouse organized. In performing these duties, Plaintiffs routinely worked over forty hours per week, and worked seven days a week during the month of December. Plaintiffs were paid a flat rate of $300.00 per week for the first three weeks of the month, and were paid $400.00 for the fourth week. They were paid an additional $50.00 per week in December, but never received hourly or overtime wages for their services. Plaintiffs then filed suit alleging violations of the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL), and asked the Court to issue an Order to Authorize Notice to Similarly Situated Persons under FLSA Section 216(b).

The Court granted Plaintiffs’ motion, holding that it was proper to leniently review the pleadings at this early stage of the litigation. As such, the five sworn declarations submitted by the Plaintiffs established that the representative and pending class members were sufficiently similarly situated to proceed with a class action. Defendants made objections that the proposed notice was too broad, and should not include administrative or executive staff. The Court agreed with Defendant and ordered adjustments to the form of the notice to exclude such employees, but otherwise found in favor of the Plaintiffs and granted their motion to authorize notice.

Used Car Dealer Rips Off Military Families

March 5, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Confessions from a Car Dealer’s Backroom

March 4, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Dateline NBC Story on Auto Dealer Fraud and How Not to Buy a Car

March 3, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Video On Various Well Worn Frauds, Scams and Tricks Used By Automobile Dealers

March 2, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Although it is a bit hokey the below video provides useful information on various well worn automobile dealer scams and tricks and how consumers can avoid them.

https://www.youtube.com/watch?v=0n3-U35G7Tg

If you have already fallen victim to any of these scams our Chicago lemon law and auto fraud lawyers may be able to assist you.

NPR Reports: “Thinly Veiled: Lawsuit Over Steamy Rihanna Video Sparks Debate On Copycat Culture”

March 1, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Rihanna – S&M by jimihubabua

NPR reports on a very interesting recently filed law suit regarding allegations that the pop singer Rhianna’s latest video crosses the line an plagiarizes the photo images of David LaChapelle and thus violates copyright law. The story states:

Fashion photographer David LaChapelle is known for staging photo shoots with lots of bright colors, outrageous costumes, and sexy, surreal images. …

When compared side-by-side, the video does bear striking similarities to the photos LaChapelle claims were plagiarized. In once scene, Rihanna lies semi-nude on a table, surrounded by reporters in clown wigs. The corresponding LaChapelle photo depicts a woman lying in a hospital bed, also half-naked and also surrounded by clowns in business attire.

In his complaint against Rihanna, LaChapelle alleges, “Defendants are wrongly implying to the public that plaintiff was involved in the creation of the Music Video or that plaintiff has endorsed, approved or otherwise consented to its creation.”

You can read or listen to the entire story by clicking here.

Northern District of Illinois Rules that State Law Overtime Claims Not Precluded by Prior Dismissal of FLSA Class-Action

February 28, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

When dealing with class-action wage and hour disputes, defendants will try to get the court to dismiss claims by any means that they can, and there are a variety of legal defenses that allow them to do so. At Lubin Austermuehle DiTommaso, our overtime lawyers are familiar with all of the tricks of the trade, so to speak, so they were interested to discover a case that illuminates just one of these many tools that is utilized by defendants to escape liability.

In Anyere v. Wells Fargo Co. Inc, Plaintiffs were current and former employees of Defendant and worked as credit managers who provided customers primarily with loan consolidation services. Plaintiffs filed a lawsuit alleging overtime violations under Fair Labor Standards Act (FLSA) because they were required to work during lunch, on weekends, and late into the night on a regular basis. Plaintiffs also alleged that Defendant “verbally disciplined employees for logging more than forty hours per week” and would adjust employees’ time records to stay under the overtime threshold. In response to these allegations, Defendant moved to dismiss the action on the basis of collateral estoppel due to a previous lawsuit filed against Defendant in California for the same overtime violations.

The Court dismissed the FLSA claims for nationwide relief based upon issue preclusion — the California-filed class-action was dismissed because the members of the proposed class were not similarly situated. However, the Court maintained the statewide action because the prior case did not contemplate an Illinois-only class-action and therefore could not have been litigated previously.

Northern District of Illinois Denies FRCP 12(b)(6) Motion to Dismiss Brought Against Dialysis Technicians

February 28, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Because we focus on large-scale overtime class-action lawsuits, the attorneys here at Lubin Austermuehle DiTommaso have helped clients from many different fields recover their unpaid wages. We think it is important for all of our potential clients out there to understand what kinds of issues arise in wage and hour cases, so our Evanston overtime attorneys are always on the look-out for new decisions. In fact, our lawyers discovered a federal case in the Northern District of Illinois that involves workers in the medical industry.

In Howard v. Renal Life Link Inc., Plaintiffs worked for Defendant as dialysis technicians and routinely worked over forty hours each week, but Defendant allegedly deducted any overtime worked and paid Plaintiffs for only forty hours. The named Plaintiff complained to Defendant that she was not being paid properly for all of the time that she had worked, but Defendant allegedly ignored these complaints and continued to deduct any time worked over forty hours each week. Plaintiffs then filed suit alleging that these working hour deductions constituted violations of both the Illinois Minimum Wage Law (IMWL) and the Fair Labor Standards Act (FLSA). In response, Defendants filed a motion to dismiss the action under Federal Rule of Civil Procedure (FRCP) 12(b)(6) alleging that Plaintiff failed to supply sufficient factual evidence in the complaint in order to meet the requirements of FRCP 23.

Defendant’s based their argument that Plaintiff failed to allege enough facts because the complaint contained allegations based “upon information and belief” instead of hard evidence. The Court found this argument unpersuasive, however, because FRCP 8 allows such allegations as long as there is sufficient detail in the complaint to make the claims facially plausible. In denying Defendant’s motion to dismiss, the Court held that the issues brought up by Defendant were properly analyzed at the class certification phase of the case, and were not properly brought in a 12(b)(6) motion to dismiss.

Southern District of Illinois Federal Court Dismisses Minimum Wage Claim for Failure to Plead Sufficient Facts

February 28, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

A motions to dismiss is a weapon that is frequently used in large scale wage claim litigation, as it is an easy and expedient way for defendants to eliminate many lawsuits. Lubin Austermuehle DiTommaso is an experienced class-action law firm whose Chicago wage and hour attorneys frequently handle overtime disputes, and we deal with such motions on a regular basis, which is why our lawyers were interested in a case out of the Southern District of Illinois that discusses the federal standard for dismissals under Federal Rule of Civil Procedure (FRCP) 12(b)(6).

FRCP 12(b)(6) allows litigants to dismiss an action for a failure to state a claim upon which relief can be granted by a federal court. Nicholson v. UTI Worldwide, Inc. is an action brought by forklift operators who worked for Defendant Uti in its warehouses in Illinois. Plaintiffs claimed that they were forced to work without pay prior to the start of their shifts performing inspections, logging into computer systems, “donning special clothing and protective gear,” and other activities. Because they were not paid for this work, Plaintiffs claimed that Defendant had violated the Fairl Labor Standards Act (FLSA), and the Illinois Minimum Wage Law (IMWL). In their complaint, Plaintiffs failed to plead how frequently the pre-shift activities occurred and also included no estimates of the applicable wage rates that applied during the times that Plaintiff’s performed such work. Defendant filed a motion to dismiss for the lack of pleading specificity in response to Plaintiff’s complaint.

In making its decision, the Court held that Defendants had been sufficiently notified of the overtime claims because Plaintiffs plead enough facts to show that their employment was covered by FLSA and the IMWL. Despite the fact that the complaint did not include allegations that Plaintiffs worked over forty hours a week, Plaintiffs did allege that they worked “overtime,” which was enough to give Defendant notice of the claim. However, the Court dismissed the minimum wage claims because Plaintiffs failed to plead facts suggesting that their actual wages fell beneath the applicable minimum wage. Thus, the Court allowed the overtime claims to proceed, but dismissed the minimum wage claim under the IMWL.

Five-Year Statute of Limitations Applies to Enforcement of Arbitration Award, First District Finds

February 23, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

As Illinois arbitration lawyers, we were interested to see a ruling on the statute of limitations for enforcing an award won in private arbitration. Peregrine Financial Group Inc. v. Futronix Trading, Ltd. No. 1-09-2293 (Ill. 1st May 21, 210) pits Peregrine, a commodities brokerage firm, against Futronix, a client that became delinquent in its accounts with Peregrine. The plaintiff took the defendant to arbitration and won an award of the delinquent amount plus interest. However, that was in August of 2003, and the plaintiff waited until November of 2008 to file in court to enforce the award. The defendant successfully moved to dismiss on the grounds that the statute of limitations had passed, under Illinois Code of Civil Procedure sec. 13-205. The plaintiff moved to reconsider but was denied, and appealed both decisions to the First District Court of Appeal.

Defendants hired plaintiffs to act as their agent in commodities futures purchasing. However, the defendants did not maintain enough money in its account to cover its losses, causing it to go delinquent in the amount of $115,512.64. The plaintiff filed an arbitration action with the National Futures Association and won that amount plus costs. The defendants then moved and did not pay the award. Five years and three months later, the plaintiffs filed in Cook County court to confirm the award. Defendants moved to dismiss on several grounds, including the statute of limitations. The plaintiff argued that there is no statute of limitation on an arbitration award, but the trial court was unmoved. Plaintiff appealed.

On appeal, the First noted that sec. 13-205 of the Code of Civil Procedure explicitly includes “awards of arbitration” among the types of actions to which it applies. Nonetheless, the plaintiff cited a federal case, United Steelworkers of America v. Danly Machine Corp., 658 F. Supp. 736 (N.D. Ill. 1987), in support of its argument. In that case, the district court for northern Illinois specifically said Illinois law does not impose a statute of limitations on arbitration awards. However, the First said, the district court gave no support or reasoning for its statement, and federal law is not binding on state courts.

The First also rejected an argument that if a statute of limitations applies, it should be sec. 13-206 of the Code, which gives a 10-year statute of limitations for actions arising from “written evidence of indebtedness” such as written contracts and promissory notes. In support, the plaintiff cited Blacke v. Industrial Comm’n, 268 Ill. App. 3d 26, 644 N.E.2d 23 (1994), a case about whether sec. 13-205 applied to collection actions under the Workers’ Compensation Act. That court decided that 13-205 applies to all statutory rights of action unless the legislature specifically intended otherwise, and rejected the argument that sec. 13-206 applied to the Workers’ Compensation Act or any other statute. The plaintiff argued the inverse: that the 10-year statute of limitations applies because its cause of action was based on a contract. However, the First said, that’s not quite true — the arbitration was based on a contract, but the suit seeking to enforce the arbitration award was not.

Finally, the court rejected three more arguments. One was based on public policy — that applying the five-year statute of limitations would run counter to Illinois public policy of enforcing arbitration awards. While it’s true that Illinois has such a public policy, the court said, it also has a public policy to enforce statutes of limitations. The plaintiff then argued that the statute of limitations should have been tolled when the defendants moved without paying. But this did not prevent the plaintiff from filing, the court noted, although it would have required the plaintiff to serve notice of the claim by publication. The last argument plaintiff made was that fundamental fairness should require the court to allow the case to go forward. The First rejected this, saying the plaintiff hadn’t shown any good reason for its five-year delay in filing. Thus, it upheld both the original judgment of the trial court and its denial of plaintiff’s motion to reconsider.