Monthly Archives: April 2015

Recent Filings – April Digest

View Susan Huber's Complete Bio at RBH.com Not every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of April’s filings:

Equifax Information Services v. Soutter, No. 15-172 (4th Cir. Apr. 30, 2015) (petitioning to appeal under Rule 23(f) from Order certifying class in class action regarding Equifax’s alleged violations of the Fair Credit Reporting Act).

Western Pennsylvania Electrical Employees Pension Fund v. Tonnesen, No. 15-1468 (4th Cir. Apr. 30, 2015) (docketing appeal from Order dismissing putative class action brought on behalf of purchasers of Triad Guaranty, Incorporated stock regarding defendants’ alleged violations of the Securities Exchange Act).

Johnson v. Time Warner Entertainment-Advance/Newhouse Partnership, No. 3:15-cv-1727 (D.S.C. Apr. 21, 2015) (removing under the Class Action Fairness Act a putative class action brought on behalf of South Carolina landowners on whose property defendants have allegedly trespassed).

Davis v. Merrill Lynch & Co., Inc., No. 3:15-cv-175 (W.D.N.C. Apr. 20, 2015) (asserting various tort claims for unpaid compensation and benefits in putative class action brought on behalf of former Merrill Lynch employees).

Adams v. Air Methods Corporation, No. 3:15-cv-1683 (D.S.C. Apr. 17, 2015) (asserting class action on behalf of South Carolina trauma victims transported by defendants regarding the validity of the transport charges).

Beck v. Shinseki, No. 15-1395 (4th Cir. Apr. 16, 2015) (appealing from Order dismissing for lack of standing putative class action brought on behalf of veterans whose personal and medical information was stored on a missing Veterans Affairs medical center laptop).

Sams v. Kimmel & Godfrey Enterprises, LLC, No. 2:15-cv-1643 (D.S.C. Apr. 15, 2015) (asserting collective action under the Fair Labor Standards Act and class action under the South Carolina Payment of Wages Act regarding defendants’ alleged failure to pay employees).

Galloway v. Santander Consumer USA, Inc., No. 15-1392 (4th Cir. Apr. 15, 2015) (appealing from Order compelling arbitration in putative class action alleging violations of Maryland common and statutory law related to allegedly deficient pre-sale notices for repossessed personal property).

Spallone v. SoHo University, Inc., No. 4:15-cv-1622 (D.S.C. Apr. 14, 2015) (asserting collective action under the Fair Labor Standards Act and class action under the South Carolina Payment of Wages Act regarding defendants’ allegedly improper tip pooling practices).

Bontempi v. Texas Roadhouse, Inc., No. 3:15-cv-1587 (D.S.C. Apr. 10, 2015) (asserting collective action under the Fair Labor Standards Act on behalf of tipped employees at Texas Roadhouse restaurants regarding defendants’ allegedly improper tip pooling practices).

Padilla v. TD Bank, N.A., No. 6:15-cv-1563 (D.S.C. Apr. 9, 2015) (asserting putative nationwide class action regarding TD Bank’s overdraft fees). This case was transferred from the Eastern District of Pennsylvania pursuant to the April 2, 2015 In re: TD Bank, N.A. MDL Order.

Austin v. TD Bank, N.A., No. 6:15-cv-1559 (D.S.C. Apr. 9, 2015) (asserting putative nationwide and state-specific class action regarding TD Bank’s overdraft fees). This case was transferred from the District of Connecticut pursuant to the April 2, 2015 In re: TD Bank, N.A. MDL Order.

Ucciferri v. TD Bank, N.A., No. 6:15-cv-1535 (D.S.C. Apr. 8, 2015) (asserting putative nationwide class action regarding TD Bank’s overdraft fees). This case was transferred from the District of New Jersey pursuant to the April 2, 2015 In re: TD Bank, N.A. MDL Order.

Koshgarian v. TD Bank, N.A., No. 6:15-cv-1534 (D.S.C. Apr. 8, 2015) (asserting putative nationwide class action regarding TD Bank’s overdraft fees). This case was transferred from the Southern District of New York pursuant to the April 2, 2015 In re: TD Bank, N.A. MDL Order.

Klein v. TD Bank, N.A., No. 6:15-cv-1536 (D.S.C. Apr. 8, 2015) (asserting putative nationwide – or, alternatively, state-specific – class action regarding TD Bank’s overdraft fees). This case was transferred from the District of New Jersey pursuant to the April 2, 2015 In re: TD Bank, N.A. MDL Order.

Hurel v. TD Bank, N.A., No. 6:15-cv-1537 (D.S.C. Apr. 8, 2015) (asserting putative nationwide class action regarding TD Bank’s overdraft fees). This case was transferred from the District of New Jersey pursuant to the April 2, 2015 In re: TD Bank, N.A. MDL Order.

Goodall v. Toronto-Dominion Bank, No. 6:15-cv-1538 (D.S.C. Apr. 8, 2015) (asserting putative nationwide class action regarding TD Bank’s overdraft fees). This case was transferred from the Middle District of Florida pursuant to the April 2, 2015 In re: TD Bank, N.A. MDL Order.

Flowers Foods, Inc. v. Scott Rehberg, No. 15-161 (4th Cir. Apr. 7, 2015) (petitioning to appeal under Rule 23(f) from Order granting class certification – for class composed of defendants’ North Carolina distributors – on North Carolina Wage and Hour Act claim; the Order also denies defendants’ motion to decertify Fair Labor Standards Act claim that was conditionally certified in 2013).

Besley v. FCA US, LLC, No. 1:15-cv-1511 (D.S.C. Apr. 6, 2015) (asserting nationwide class action for claims of unjust enrichment, negligence per se, promissory estoppel, and negligent misrepresentation on behalf of owners and lessees of FCA Ram pickup trucks for which the Monroney sticker provided inaccurate rear axle ratio information).

Berber v. Hutchison Tree Service, No. 5:15-cv-143 (E.D.N.C. Apr. 3, 2015) (asserting on behalf of “salary-paid laborers” a collective action for unpaid overtime compensation under the Fair Labor Standards Act and a class action for unpaid wages and overtime compensation under the North Carolina Wage and Hour Act).

Chatman v. GC Services, LP, No. 15-157 (4th Cir. Apr. 2, 2015) (petitioning to appeal under Rule 23(f) from Order denying class certification in putative class action asserting violations of the Fair Debt Collection Practices Act by third-party debt collectors against South Carolina residents).

In re: TD Banks, N.A. Debit Card Overdraft Fee Litigation, MDL No. 2613 (U.S. Judicial Panel on Multidistrict Litigation, April 2, 2015) (consolidating in the District of South Carolina eight putative nationwide class actions involving imposition of overdraft fees by TD Bank; presiding judge will be Hon. Bruce Howe Hendricks).

Clark v. RCI Entertainment (North Carolina), Inc., No. 3:15-cv-141 (W.D.N.C. Apr. 1, 2015) (asserting collective action for unpaid wages and overtime compensation under the Fair Labor Standards Act on behalf of “entertainers” at Club Onyx-Charlotte).

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Judge Cogburn Certifies Class Alleging that Distributors Are “Employees”

View David Wright's Complete Bio at RBH.comWe all know that an employer’s decision to label certain individuals as “independent contractors” is not dispositive of the legal issue whether they are, in actuality, “employees.” And that issue is complicated further because the definition of “employee” varies from statute to statute. But courts have struggled in deciding whether employment status in a misclassification case can be decided on a class-wide basis. On the one hand, the legal issue is the same: are these folks employees or aren’t they? But, as Justice Scalia cautioned in Wal-Mart, merely stating the “common question” is insufficient – the answer to the posed question must “resolve an issue that is central to the validity of each one of the claims in one stroke.”

Judge Cogburn wrestled with this issue in a putative class action brought on behalf of distributors for a baking company. Rehberg v. Flowers Baking Co of Jamestown, LLC, No. 3:12-cv-596 (W.D.N.C. March 23, 2015). The court first determined that the answer to the “status” question under the North Carolina Wage and Hour Act was governed by the FLSA’s “economic realities test,” not the “right to control” test. Applying the test, Judge Cogburn rejected defendants’ arguments that “although common policies may exist, they are enforced so differently that they cannot serve as the ‘common glue’ to establish commonality.” As the court viewed the forecast of evidence, each distributor “carried out the essential functions of the job” only “slightly differently.” This proved dispositive on the issues of commonality and predominance.

Of some interest is that the court certified a 23(b)(2) class as well as a 23(b)(3) class, citing a 2010 decision from Judge Mullen to the effect that “Rule 23(b)(2) can still be satisfied even where a declaratory judgment is ‘merely a prelude to a request for monetary relief.’” That decision, however, predated Dukes, which states that Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.”

Notably, Judge Cogburn cautioned that – as the Fourth Circuit has emphasized – a class certification ruling is inherently tentative and must be modified if later proof indicates that certification was ill-advised. And the Court hints that “issue certification” – which remains a controversial topic might be something the Court considers down the road.

And in a final observation about the proverbial dog catching the car, Judge Cogburn sounds a cautionary note to the plaintiff class members, reminding them that being an employee may not be entirely rosy: “If the court determines that all distributors are indeed employees, distributors would essentially exchange their entrepreneurial opportunities and benefits associated with their ownerships rights in their distributors for the right to earn overtime pay and other employee benefits. Put another way, a decision unfavorable to Defendants in the context of this lawsuit may very well wind up to be unfavorable to distributors in the context of their business endeavors, ability to generate profits and any equity they may have in their distributorships.”

On April 7, Defendants filed a Rule 23(f) petition to the Fourth Circuit, arguing that the District Court’s order was “manifestly erroneous.”

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