Perrin v. Papa John's International, Inc.

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PostPosted: Fri Sep 16, 2011 1:09 am
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Perrin v. Papa John's International, Inc.

from http://dockets.justia.com/docket/missou ... 35/101594/

Plaintiff: William Timothy Perrin
Defendant: Papa John's International, Inc.

Case Number: 4:2009cv01335
Filed: August 19, 2009

Court: Missouri Eastern District Court
Office: St. Louis Office
County: St. Louis - City
Presiding Judge: Magistrate Judge Audrey G. Fleissig

Nature of Suit: Labor - Fair Labor Standards Act
Cause: No cause code entered
Jurisdiction: Federal Question
Jury Demanded By: Plaintiff


March 8, 2011 127
Court Opinion or Order MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Papa John's International, Inc. and Papa John's USA, Inc.'s Motion to Dismiss (Doc. 60) is GRANTED in part and DENIED in part. Defendants' motion to di smiss is denied in all respects, except with regard to Plaintiff Perrin's individual claims for the period of January-May 2009, which are dismissed without prejudice. IT IS FURTHER ORDERED that Defendants' motion for hearing [Doc. #82] is DENIED. Signed by Honorable Audrey G. Fleissig on 3/8/2011. (NCL)


September 14, 2011 148
Court Opinion or Order MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that Plaintiff's Motion for Conditional Collective Action Certification [Doc. No. 101] is GRANTED, and the Court conditionally certifies a class of all similarly situation present and former pizza delivery drivers employed by Defendants at any time during the three(3) years prior to the date of this Order. IT IS FURTHER ORDERED that Defendants' motion for hearing [Doc. No. 124] is DENIED. IT IS FURTHER ORDERED that Pa pa John's shall show cause, not later than September 20, 2011, why Plaintiff's proposed notice and consent provisions [Doc. No. 101 Exhibits 37 & 38] should not be approved by the Court for issuance in this collective action. Plaintiff shal l file its response to the objections to the proposed notice and consent provisions on or before September 26, 2011. IT IS FURTHER ORDERED that Papa John's shall take the steps necessary to make available by October 21, 2011 a readable e lectronic data file containing information including the names, restaurant store names and numbers, and last known mailing addresses of all potential class members. ( Response to Court due by 9/20/2011.). Signed by Honorable Audrey G. Fleissig on 9/14/2011. (MRC)
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PostPosted: Fri Sep 16, 2011 1:10 am
http://www.law360.com/articles/271581/p ... lass-cert-

Papa John's Delivery Drivers Win FLSA Class Cert.

By Kaitlin Ugolik
Law360, New York (September 14, 2011, 10:38 PM ET) -- A group of pizza delivery drivers for Papa John's International Inc. won class certification Wednesday in a Missouri suit accusing the restaurant chain of using a gas and car upkeep reimbursement formula that effectively reduced their pay to below minimum wage.

U.S. District Judge Audrey G. Fleissig conditionally certified the class of Papa John's pizza delivery drivers who worked for the company in the past three years, saying the plaintiffs presented substantial allegations that the entire class was subject to a policy that violated the Fair...
To view the full article, take a free trial now.


Case Title
Perrin v. Papa John's International, Inc.

Court
Missouri Eastern

Nature of Suit
Labor: Fair Standards

Case Number
4:09-cv-01335

Judge
Audrey G. Fleissig

Date Filed
August 19, 2009
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PostPosted: Fri Sep 16, 2011 1:17 am
http://www.stuevesiegel.com/CM/Investig ... plaint.PDF

Click above to view a PDF of the actual court papers that were filed in Perrin v. Papa John's International, Inc.
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PostPosted: Fri Sep 16, 2011 9:14 pm
From here: http://www.leagle.com/xmlResult.aspx?xm ... -2007-CURR

PERRIN v. PAPA JOHN'S INTERNATIONAL, INC.
WILLIAM TIMOTHY PERRIN, individually and on behalf of other similarly situated individuals, Plaintiffs,
v.
PAPA JOHN'S INTERNATIONAL, INC., and PAPA JOHN'S USA, INC., Defendants.
Case No. 4:09CV01335 AGF.
United States District Court, E.D. Missouri, Eastern Division.

March 8, 2011.




MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
Plaintiff has filed this purported class action under the Fair Labor Standards Act and various state wage and hours statutes. This matter is presently before the Court on Defendants' Motion to Dismiss (Doc. 60). Defendants Papa John's International, Inc. and Papa John's USA, Inc. seek dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.1 For the reasons set forth below, the Court will deny Defendants' motion as to Plaintiff's claims for the time period including "the last approximately five months of 2008," and as to the collective and class action claims, but will grant the Defendant's motion with respect to Plaintiff's individual claims for the period of January-May 2009.

Background

Defendants operate over 500 pizza restaurants nationally. The named Plaintiff, William Perrin, is employed by Defendants as a delivery driver in Missouri, and brings this action on his own behalf and on behalf of all other similarly situated delivery drivers. Plaintiff alleges that for "the last approximately five months of 2008," when the federal minimum wage rate was $6.55 per hour, he was paid a wage of $6.80 per hour, supplemented by a per-delivery reimbursement amount for his automobile expenses, including "gasoline, vehicle parts and fluids, automobile repair and maintenance services, automobile insurance, and depreciation" ("automobile expenses"). Plaintiff further alleges that until May 2009, Defendants paid all of their other delivery drivers an hourly wage "at or very near the applicable federal or state minimum wage," also supplemented by a per-delivery reimbursement amount for their automobile expenses. Plaintiff asserts, however, that the reimbursement method underestimated both the automobile expenses per mile incurred by the delivery drivers and the number of miles driven by the delivery drivers, with the net result that the delivery drivers were reimbursed less than their reasonably approximated automobile expenses.
Plaintiff argues that the gap between the delivery drivers' reasonably approximated automobile expenses and the reimbursement amount resulted in a "kickback" to Defendants, and that this kickback was sufficiently large to reduce the delivery drivers' wages to a rate below the minimum wage. As a result, Plaintiff claims that he and the other delivery drivers were deprived of the minimum wage guaranteed to them under the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the wage and hours laws of Missouri, Arizona, Florida, Illinois, Maryland, and North Carolina ("the States").2 Count I is brought under the FLSA as an "opt-in" collective action pursuant to 29 U.S.C. § 216(b). Count II is brought for violation of the wage and hour laws of the States as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.

Defendants argue that the Second Amended Complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure because Plaintiff has failed to state a claim upon which relief can be granted. Defendants assert that Plaintiff's claims are speculative, conclusory, and lack factual specificity as to actual amounts that the drivers incurred for un-reimbursed job related expenses. Alternatively, Defendants argue that Count II should be dismissed because the requirements for an opt-in FLSA collective claim are inherently incompatible with the requirements of a class action under Rule 23.

Motion to Dismiss Standard

The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions "which are fatally flawed in their legal premises and [designed] to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). To survive a motion to dismiss for failure to state a claim, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not contain "detailed factual allegations," it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. This standard "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Id. at 556. As the United States Supreme Court recently reiterated in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster under Twombly.

Under this standard, the task of a court is "to review the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation." Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010) (citing Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (noting "the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible"). "This is `a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Iqbal, 129 S. Ct. at 1950).

Upon considering a motion to dismiss, a federal court must accept as true all factual allegations in the complaint and view them in the light most favorable to the plaintiff. Fed. R. Civ. P. 12(b)(6); Erickson v. Pardus, 551 U.S. 89, 94 (2007); Davenport v. Farmers Ins. Grp., 378 F.3d 839, 842 (2004).

Analysis

1. Factual Sufficiency
a. Sufficiency of Pleading Individual Claims
Defendants argue that Plaintiff cannot state a plausible claim for minimum wage violations because he can only speculate that his wages fell below the required minimum wage or that Defendants failed to reasonably approximate his actual expenses. In his complaint, Plaintiff asserts that his actual automobile expenses during the "late — 2008 time period" were at least $.40 per mile. As evidence of the reasonableness of this estimate, Plaintiff recites the higher IRS business mileage reimbursement rate during this time period, as well as the higher rates established by "reputable companies that study the cost of owning and operating a motor vehicle and/or reasonable reimbursement rates, including AAA." Doc. 54, ¶ 21. Defendants assert that Plaintiff's own estimate of his expenses and reimbursement rates set by others, such as the IRS or AAA, are insufficient to satisfy the pleading requirements set forth in Iqbal and Twombly. Defendants further contend that while employers reimbursing employees for their business-related expenses are only required to reasonably approximate those expenses, Plaintiff cannot credibly allege his business-related expenses using his personal approximations or third parties' reimbursement rates.
In response, Plaintiff points to Wass v. NPC International, Case No. 09-2254-JWL (D. Kan. Sept. 1, 2010), a case similar to this one, in which pizza delivery drivers asserted that the employers provided under-reimbursement of vehicle expenses, which they claimed led to an alleged violation of minimum wage laws. In Wass, the court rejected the defendants' argument that the amended complaint failed to satisfy the Twombly standard, and found that the amended complaint stated plausible claims by Mr. Wass and plausible collective and class action claims on behalf of other drivers. Here, Plaintiff argues that his claims are similarly plausible because he structured his complaint specifically so that it would closely mirror that in Wass.

Defendants respond that Wass is not binding on this Court and further assert that Wass is not definitive authority, noting and citing to cases currently pending in other districts wherein similar pleadings are at issue. While Wass is neither binding nor definitive here, the Court is persuaded by its reasoning.

As the court in Wass asserted, even if one concedes that drivers cannot realistically determine their actual expenses, it does not automatically follow that the plaintiffs cannot state a plausible claim. Wass, Case No. 09-2254-JWL, at 7-8. "It is not implausible to suggest that drivers may be able to estimate their expenses without knowing their actual expenses incurred." Id. at 8. In support, the Wass court cited Robinson v. Food Service of Belton, Inc., 415 F.Supp.2d 1232 (D. Kan. 2005), which established that "FLSA plaintiffs could rely on estimates instead of actual figures if evidence allowed such a reasonable inference." Wass, Case No. 09-2254-JWL, at 8. Defendants respond that Robinson did not involve an alleged "kickback" arising from unreimbursed business expenses, nor did it concern a party's pleading obligations under Iqbal and Twombly. But Robinson, like the present case, was a FLSA case concerning unpaid minimum wage compensation, and the Court is persuaded by the holdings and reasoning in Wass and Robinson, particularly at this stage of the proceedings. Moreover, Wass and Robinson are not the only courts to have found pleadings similar to Plaintiff's, to be sufficient under Iqbal. See, e.g., Toy v. TriWire Eng. Solutions, Inc., No. C10-192951, 2011 WL 221832, at *2-3 (N.D.Cal. Jan. 24, 2011) (denying motion to dismiss claims asserted under state labor laws, including allegations that plaintiff "received $66 per pay period for vehicle related expenses, but that amount did not cover his expenses"); Nicholson v. UTI Worldwide, Inc., No. 3:09-CV-722-JPG-DGW, 2010 WL 551551, at *3-4 (S.D. Ill. Feb. 12, 2010) (rejecting notion that Bell Atlantic requires "extensive, detailed pleadings of FLSA claims, "but dismissing minimum wage claim because it would not state claim under facts pled); see generally, McDonald v. Kellogg Co., No. 08-2473-JWL, 2009 WL 1125830, at *1-2 (D. Kan. April 27, 2009) (rejecting a heightened standard of pleading for FLSA cases).

To survive a motion to dismiss, a plaintiff need only allege facts that permit the reasonable inference that the defendant is liable, even if the complaint "strikes a savvy judge that actual proof of the facts alleged is improbable" and recovery "very remote and unlikely." Braden v. Wal-Mart Stores, 588 F.3d 585, 594 (8th Cir. 2009) (citation omitted). Plaintiff has alleged as follows: that he "was paid $6.80 per hour during the last approximately five months of 2008," when the federal minimum wage was $6.55 per hour; that in "the late-2008 time period," Defendants reimbursed him at a rate of $1.15 per delivery; that throughout his employment, he experienced an average delivery distance of approximately five miles, leading to an average effective reimbursement rate during the late 2008 time period of $0.23 per mile ($1.15 per delivery / 5 miles per delivery); that his automobile expenses were no less than approximately $0.40 per mile; that he typically worked 30-35 hours per week; and that he averaged approximately 3 deliveries per hour. These figures would yield an under-reimbursement of approximately $2.55 per hour worked ($0.40/mile - $0.23/mile = $0.17/mile; $0.17/mile × 5 miles/delivery = $0.85/delivery; $0.85/delivery × 3 deliveries / hr = $2.55 / hr). Because Plaintiff was paid $6.80, a wage that exceeded the minimum wage by $0.25, an under-reimbursement of $2.55 per hour worked supports a claim for a minimum-wage violation.

Plaintiff's complaint raises a plausible inference that Defendants did not reasonably approximate his expenses in reimbursing him during the late-2008 time period. Whether this inference will prove to be correct is not an issue to be determined on a motion to dismiss, and this ruling is not intended to signal that Plaintiff will ultimately recover on his claim of minimum wage violations. See Hamilton v. Palm, 621 F.3d 816, 818-19 (8th Cir. 2010) (finding that the plaintiff adequately raised plausible inferences of both employee and independent contractor status, and noting that the propriety of the inferences was not a matter for final determination on a motion to dismiss, nor was the ruling an indication that Plaintiff would ultimately recover on his claim of employer negligence); accord, Nicholson, 2010 WL 551551, at *3 (recognizing, "`a complaint need not make a case against a defendant or forecast evidence sufficient to prove an element of the claim. He need only allege facts sufficient to state elements of the claim.'") (quoting Chao v. Rivendell Woods, Inc., 415 F.3d 342, 349 (4th Cir. 2005)).

The Court recognizes that similar minimum-wage FLSA cases have been dismissed at the pleading stage for lack of factual specificity. However, the Court finds those cases distinguishable with respect to Plaintiff's claims for the late-2008 time period. In Bailey v. Border Foods, No. 09-01230 (RHK/AJB), 2009 WL 3248305 (D. Minn. Oct. 6, 2009), the court, in dismissing "kickback" claims by pizza delivery drivers for failure adequately to plead facts supporting their claims, noted that the Plaintiffs failed to identify their hourly pay rates, the amount of their per-delivery reimbursements, the amounts generally expended in delivering pizzas, or "any facts that would permit the court to infer that Plaintiffs actually received less than minimum wage," instead simply providing the conclusory statement that "[a]s a result of the travel expenses incurred, Plaintiffs . . . were systematically deprived of the minimum wage." Similarly, in Jones v. Casey's Gen. Stores, 538 F.Supp.2d 1094, 1103 & n.4 (S.D. Iowa 2008), the court in dismissing the plaintiff's minimum wage collective action claim due to lack of factual support, noted that four of the plaintiffs earned wages that would put them above the federal wage even when taking into account the time for which they were not paid, and rejected Plaintiff's argument that the matter was one "for discovery and evidence" simply because other plaintiffs "may" have had a claim. In Zhong v. August August Corp, 498 F.Supp.2d 625, 629-30 (S.D.N.Y. 2007), the court allowed the FLSA minimum wage allegations of the plaintiff who claimed to have worked for "twenty hours per week, spread out over six days per week, at a wage of $10.00 per day, for a total of (roughly) twenty weeks," but rejected the plaintiff's allegation to have "regularly worked overtime hours," because, based on the other more specific allegations, it was evident that the plaintiff worked a total of only approximately 20 hours per week, and overtime compensation is only available for hours worked in excess of 40 per week. Here, the facts asserted by Plaintiff, if properly proven, could support a claim.

Defendants further argue that Plaintiff cannot substitute facts with expert testimony. At this point, Plaintiff has not proffered any expert testimony. He has merely expressed intent to use such testimony in the future. Whether Plaintiff's as-yet unidentified expert witnesses should be excluded need not be determined at this point in the proceedings.

A different issue is presented, however, with respect to the relevant time period alleged. The Court notes that Plaintiff's factual allegations, for the most part, refer only to the late-2008 time period. He alleges his salary for the last approximately five months of 2008, and expresses his alleged reimbursement rate and estimated automobile expenses in terms of the same time period. Outside of the late-2008 time period, Plaintiff has not pleaded facts that would allow the court to infer that he received less than the minimum wage. Without knowing what Plaintiff was paid from January — May 2009, for example, the Court has no way to ascertain whether his wages fell below the minimum wage for that time period. As such, only those claims that relate to the late-2008 time period are permissible. See Bailey, 2009 WL 3248305, at *2-3.

Accordingly, the Court concludes that Plaintiff has stated plausible claims, as required under Twombly and Iqbal, for the late-2008 time period, but the Court will dismiss, without prejudice, his individual claims for the period of January — May 2009.

b. Sufficiency of Pleading Collective and Class Action Claims
Defendants argue that Plaintiff's allegations regarding putative plaintiffs do not support a plausible claim for either class or collective action relief under the pleading requirements in Iqbal and Twombly. Defendants assert that Plaintiff merely assumes that others' experiences were similar to his own and that he fails to provide facts "connecting the dots" between his claims and the claims of the putative plaintiffs. The Court does not find it implausible that the putative plaintiffs could have had similar experiences to Plaintiff. Plaintiff has alleged that they were all employed as delivery drivers with Defendants, and they were all subject to the same pay policies and practices. He alleges that they were all subject to similar driving conditions, incurred similar automobile expenses, and experienced similar delivery distances and frequencies. He further alleges that they were also subject to the same reimbursement policy, which Plaintiff argues systematically deprived them all of reasonably approximate reimbursements.

Further, with respect to the collective and class action claims, Plaintiff has alleged: that all of Defendants' other delivery drivers were paid at or near the federal or state minimum wage prior to May 2009; that studies during the applicable limitations period by reputable companies estimate that the average cost of owning and operating a vehicle ranges between $0.45 and $0.55 per mile; that the IRS business mileage reimbursement rate during the same period ranged between $0.445 and $0.585 per mile; that delivery drivers incur more frequent maintenance costs and higher costs due to repairs associated with driving than the average driver and experience more rapid depreciation, lower gas mileage, and higher repair costs due to the driving conditions and the nature of the delivery business, including "frequent starting and stopping of the engine, frequent braking, short routes as opposed to highway driving, and driving under time pressures"; that all of Defendants' delivery drivers were reimbursed for their automobile expenses at substantially similar reimbursement rates; that the delivery drivers "completed deliveries of similar distances and at similar frequencies" as Plaintiff Perrin; and that the reimbursement rates ranged between $0.15 and $0.24 per mile. Based on Plaintiff's assertion that drivers typically drove 5 miles per delivery and made 3 deliveries per hour, a $0.20 gap ($0.445-$0.24) would result in an under-reimbursement of about $1.00 per delivery, or $3.00 per hour. This gap is sufficient to support a plausible allegation of under-reimbursement by Defendants of their drivers generally. See Bank of America Wage and Hour Employment Litigation, No. 10-MD-2138-JWL, 2010 WL 4180567, at *5 & n. 2 (D.Kan. Oct. 20, 2010) (holding that factual content of complaint permitted inference that all call center employees were subject to the alleged overtime violations).

Defendants argue that delivery drivers' automobile expenses vary on account of a number of variables, such as geography or the type, make, model, age, and condition of an employee's vehicle. Plaintiff counters, however, that because Defendants use the same reimbursement methodology with respect to all delivery drivers nationwide, reimbursements would be higher in areas where expenses are higher. As a result, while the amount of the actual reimbursements per delivery "var[ies] over time and based on geographic issues such as the price of gas and other cost differences," the under-reimbursement gap is consistent across the country.

Plaintiff may or may not succeed in proving his claims with respect to other drivers, but at this stage of the case he has set forth sufficient facts to support a plausible allegation of an under-reimbursement large enough to support a claim that Defendants did not reasonably approximate the delivery drivers' expenses. Plaintiff has alleged that Defendants' delivery drivers were paid at or near the federal minimum wage, and that Defendants did not generally pay their delivery drivers more the $2.00 over the federal minimum wage during the limitations period. As such, the alleged reimbursement gap of $3.00 per hour would be sufficiently large to support a plausible claim that the under-reimbursement brought the Plaintiffs below the federal minimum wage.
For these reasons, the Court concludes that Plaintiff has stated plausible claims, as required under Twombly and Iqbal, for the collective and class action relief sought in his complaint.

2. Incompatibility

Defendants also argue that Plaintiff's FLSA collective action claims and Rule 23 state action claims are incompatible. However, the issue of whether to allow Plaintiff's FLSA collective action to proceed simultaneously with his Rule 23 state action is essentially one of practicability. Courts are split on the matter. See Salazar v. Agriprocessors, Inc., 527 F.Supp.2d 873, 881-87 (N.D. Iowa 2007) (citing cases and holding that opt-in class certification provision of FLSA, requiring class members to affirmatively join in FLSA lawsuit, did not expressly prohibit the exercise of supplemental jurisdiction over state minimum wage claims of opt-out class members; thus, exercise of supplemental jurisdiction was not barred on that basis, and no other basis for declining supplemental jurisdiction of the state class action claim existed); see also Osby v. Citigroup, Inc., 2008 WL 2074102, at *3 n.2 (W.D. Mo. May 14, 2008) ("District court cases permitting FLSA collective actions to proceed simultaneously with Rule 23 state actions are legion.").

This Court believes that the better approach is to allow both actions to proceed together in federal court. At this stage of the proceedings the Court is not convinced that both claims cannot be effectively adjudicated in this one action by proper case management.

CONCLUSION

For the foregoing reasons,
IT IS HEREBY ORDERED that Defendants Papa John's International, Inc. and Papa John's USA, Inc.'s Motion to Dismiss (Doc. 60) is GRANTED in part and DENIED in part. Defendants' motion to dismiss is denied in all respects, except with regard to Plaintiff Perrin's individual claims for the period of January-May 2009, which are dismissed without prejudice.
IT IS FURTHER ORDERED that Defendants' motion for hearing [Doc. #82] is DENIED.
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PostPosted: Fri Sep 23, 2011 7:19 pm
http://scholar.google.com/scholar_case? ... 1&as_vis=1

WILLIAM TIMOTHY PERRIN, individually and on behalf of other similarly situated individuals, Plaintiffs,
v.
PAPA JOHN'S INTERNATIONAL, INC., and PAPA JOHN'S USA, INC., Defendants.
Case No. 4:09CV01335 AGF.

United States District Court, E.D. Missouri, Eastern Division.
September 14, 2011.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

This matter is presently before the Court on Plaintiff's Motion for Conditional Class Certification [Doc. No. 101].[1] The named Plaintiff, William Perrin,[2] brings this action on his own behalf and on behalf of all other similarly situated pizza delivery drivers employed by Defendants Papa John's International, Inc., and Papa John's USA, Inc. (hereinafter collectively referred to as "Papa John's").

Plaintiff brings this purported class action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the wage and hours statutes of various states. Plaintiff alleges that Papa John's violated the FLSA and the wage and hours laws of Missouri, Arizona, Florida, Illinois, Maryland, and North Carolina ("the States")[3] by applying an automobile expense reimbursement methodology that underestimated both the automobile expenses incurred by the delivery drivers and the number of miles they drove. Plaintiff further asserts that as a result of this reimbursement methodology, Papa John's reimbursed its delivery drivers much less than their reasonably approximated automobile expenses. In addition, Plaintiff alleges that the gap between the delivery drivers' reasonably approximated automobile expenses and the reimbursement amount was sufficiently large to effectively reduce the delivery drivers' wages to a rate below the minimum wage. As a result, Plaintiff claims that he and other similarly situated delivery drivers were deprived of the minimum wage guaranteed to them under the FLSA and the wage and hours laws of the States.

Plaintiff moves pursuant to § 216(b) of the FLSA for an order conditionally certifying this case as a collective action;[4] authorizing Plaintiff to send notice of this case to all current and former Papa John's delivery drivers employed by Papa John's at any time during the last three years; requiring Papa John's to provide Plaintiff's counsel with a readable electronic data file containing the names, last known addresses, dates of employment, and restaurant store name and number for each such current and former employee; and ordering Papa John's to post the notice in the employee areas of the stores where delivery drivers work.

Background

Papa John's operates a national chain of pizza restaurants which provide delivery services. All delivery drivers have the same duties, delivering food items to customers. Papa John's requires delivery drivers to provide their own vehicles, and that their vehicles be registered, insured, safe, and in good repair. Papa John's also requires delivery drivers to pay out-of-pocket any "automobile expenses" incurred in making deliveries. Automobile expenses include gasoline, vehicle parts and fluids, automobile repair and maintenance services, automobile insurance, and depreciation attributable to delivery duties. Pursuant to the reimbursement methodology of Papa John's, which applies to all delivery drivers, drivers receive a flat fee for each delivery made regardless of the distance traveled. Papa John's does not track delivery drivers' mileage and does not require the drivers to do so.

Plaintiff's allegations, and the declarations, affidavits, deposition testimony and answers to written discovery requests submitted in support of the motion for conditional certification, provide substantial support for the following assertions. During the time period relevant to this suit, the federal minimum wage was $6.55 per hour, and Plaintiff was paid $6.80 per hour, supplemented by the per-delivery reimbursement amount for his automobile expenses. During this same time period, Papa John's paid all of its delivery drivers an hourly wage "at or very near the applicable federal or state minimum wage,"[5] and the maximum delivery reimbursement was approximately $1.25 per delivery. In addition, delivery drivers made approximately three deliveries per hour and the estimated average distance driven for a single delivery was five miles. It is undisputed that Papa John's does not disclose the reimbursement formula to its delivery drivers.

Plaintiff asserts that when the average mileage per delivery is applied to the maximum reimbursement rate, he and the putative members of the class received reimbursement of approximately $0.23-0.30 per mile.[6] Plaintiff also alleges that when the average mileage per delivery is applied to this reimbursement rate, he and the putative members of the class incurred actual automobile expenses of at least $.40 per mile. Plaintiff avers that this reimbursement methodology resulted in an effective hourly wage of less than the required minimum, although they do not know their actual effective rate of pay.

Conditional Class Certification under the FLSA

The FLSA and regulations thereunder require employers to pay employees the minimum wage "free and clear" of other monetary obligations to the employer. 29 C.F.R. § 531.35. In addition, the FLSA provides that an action may be maintained "by any . . . employee[ ] for and in behalf of himself . . . and other employees similarly situated" to recover damages for the failure to pay the minimum wage. 29 U.S.C. § 216(b). Such an action is known as a "collective action."[7] See, e.g., Smith v. Heartland Auto. Servs., Inc., 404 F. Supp. 2d 1144, 1149 (D. Minn. 2005). In an FLSA collective action, similarly situated employees may "opt-in" to the suit in order to benefit from its results. Davis v. Novastar Mortg., Inc., 408 F. Supp. 2d 811, 814-15 (W.D. Mo. 2005). The FLSA does not define "similarly situated," and the Eighth Circuit Court of Appeals has not yet defined a standard for determining whether potential opt-in plaintiffs are "similarly situated" under § 216(b). District courts in this Circuit, however, consistently apply a two-step analysis to the question of conditional certification. See, e.g., Nobles v. State Farm Mut. Auto. Ins. Co., No. 2:10CV04175 JGC, 2011 WL 3794021, at *9 (W.D. Mo. August 25, 2011); Beasely v. GC Servs. LP, No. 4:09CV01748 CDP, slip op. at 4 (E.D. Mo. Oct. 6, 2010); Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp. 2d 1014, 1016 (E.D. Mo. 2010); Dietrich v. Liberty Square LLC., 230 F.R.D. 574, 576-77 (N.D. Iowa 2005).

In performing the two-step analysis, courts first consider whether the class should be conditionally certified for notification and discovery purposes. At this stage, the inquiry is whether a plaintiff has come forward with evidence establishing a "`colorable basis . . . that the putative class members were the victims of a single decision, policy, or plan.'" Luiken, 2010 WL 2545875, at *2 (quoting Dege v. Hutchinson Tech., Inc., No. 06-3754 (DWF/RLE), 2007 WL 586787, at *1 (D. Minn. Feb. 22, 2007) (citations omitted)). Conditional certification at the notice stage requires "substantial allegations," but nothing more. Beasely, No. 4:09CV01748 CDP, slip op. at 5 (citing Davis, 408 F. Supp. 2d at 815). At this point in the proceedings, the court does not reach the merits of the plaintiff's claims, nor is the plaintiff's burden onerous. Kautsch v. Premier Commc'ns, 504 F. Supp. 2d 685, 688 (W.D. Mo. 2007); Fast v. Applebee's Int'l, Inc., 243 F.R.D. 360, 363 (W.D. Mo. 2007); Heartland, 404 F. Supp. 2d 1144, 1149. Moreover, at this initial stage, the court should not make credibility determinations or findings of fact with respect to contrary evidence presented by the parties. Luiken, 2010 WL 2545875, at *2. Finally, to make substantial allegations that class members are similarly situated, a plaintiff need not show them to be "identically situated." Fast, 243 F.R.D. at 363 (emphasis added); see also Beasely, No. 4:09CV01748 CDP, slip op. at 5.

In the second or intermediate stage, which occurs after discovery is well-advanced or complete, courts conduct a more stringent inquiry exploring several factors, including the extent and consequences of the differing circumstances applicable to individual plaintiffs, available defenses and the extent to which they are unique to each individual plaintiff, and other fairness and procedural considerations. Bass v. PJCOMN, No. 09-CV-01614 REB, slip op. at 4. (D. Colo. Sept.15, 2010); Luiken, 2010 WL 2545875, at *2. In addition, at the second step of the process, the defendant may move, and the court may determine, to decertify the class. Kautsch, 504 F. Supp. 2d at 688. This is typically done after the close of discovery, on a fully developed record that permits the court to make a factual determination as to whether the members of the conditionally certified class are indeed similarly situated. Davis, 408 F. Supp. 2d at 815.

Analysis

There is some dispute about whether this case is at the first or second step of the collective action certification process. Papa John's asserts that sufficient discovery preceded the filing of the motion for conditional class certification to justify application of the more rigorous second level of scrutiny. The Court does not agree. It appears that no more than preliminary written discovery and the taking of a few depositions preceded the filing of this motion. At this juncture, Papa John's has offered the deposition testimony of only three delivery drivers in its efforts to refute Plaintiff's allegations. In addition, although the parties have provided information gleaned from discovery regarding the nature and application of reimbursement methodologies of Papa John's, the record before the Court is neither exhaustive nor detailed enough to permit the exercise of more rigorous review. The discovery which preceded the filing of this motion forms a sufficient basis for an initial certification determination, but is not sufficient to warrant application of the second or intermediate level of review. See, e.g., Lyons v. Ameriprise Fin., Inc., No. 10-503 RHK, 2010 WL 3733565, at *3 (D. Minn. Sept. 20, 2010) (rejecting intermediate standard because discovery was far from complete); Helmert v. Butterball, No. 4:08CV00342 JLH, 2009 WL 5066759, at *6-7 (E.D. Ark. Dec. 15, 2009) (refusing to apply heightened or intermediate standard until all discovery was completed).

Applying the lenient, first-step standard to the record before it, the Court concludes that Plaintiff has cleared the relatively low hurdle of demonstrating that conditional certification of the § 216(b) collective action is appropriate. Plaintiff has come forward with detailed, substantial allegations that he and the delivery drivers he seeks to represent are subject to a single policy that systematically under-reimbursed them for automobile expenses incurred in the course of their employment with Papa John's, and thus yielded an hourly rate of pay less than the applicable minimum wage. Third Amended Complaint ¶¶ 37-50.

Papa John's argues that Plaintiff's allegations are conclusory and lacking in sufficient detail to support conditional certification. The Court does not agree. The relatively specific allegations of the complaint, having survived a motion to dismiss, are further bolstered by additional data garnered from initial discovery and the declarations of other potential opt-in plaintiffs. See Wass v. NPC Int'l, Inc., No. 09-2254 JWL, slip op. at 10-11(D. Kan. March 28, 2011) (certifying conditional class of delivery drivers and noting that specific allegations were sufficient despite the defendant's characterization of them as "boilerplate" and "unreliable"); see also Loomis v. CUSA LLC, 257 F.R.D. 674, 676 (D. Minn. 2009) (finding that the court does not make credibility determinations or findings of fact with respect to contradictory evidence submitted by the parties at this initial stage). Moreover, the Court may not assess credibility at this juncture, and Papa John's has provided no basis for a determination that the allegations are merely a "sham." Wass v. NPC Int'l, Inc., No. 09-2254 JWL, slip op. at 11.

Plaintiff has asserted that the members of the proposed class are similarly situated because Papa John's reimbursed them according to similar, albeit not identical, policies. In addition, Plaintiff has alleged the application and effect of the reimbursement methodology in sufficient detail to allow the identification and notification of proposed members of the collective action who were subject to similar policies. See Bishop v. AT&T Corp., 256 F.R.D. 503, 507 (W.D. Pa. 2009) (conditionally certifying collective action involving unpaid overtime at call centers and noting that "[e]numerating the specifics of how each call center accounts for employee work hours does not counter an allegation of a common policy of denying payment for such hours"); Busler v. Enersys Energy Prods., Inc., No. 09-00159-CV-W-FJG, 2009 WL 2998970, at *3 (W.D. Mo. Sept. 16, 2009) (conditionally certifying collective action, despite potential distinctions among potential plaintiffs, because the plaintiff presented enough evidence at initial stage that employees were "similarly situated and subject to a common practice").

That the reimbursement methodology Papa John's used might vary over time and from location to location, does not mean that the named Plaintiff and the putative class members are not similarly situated. See, e.g., Wass, No. 09CV2254 JWL, slip op. at 12-13 (variations in individual vehicle expenses and in application of a common reimbursement policy do not refute substantial allegations that the plaintiffs are similarly situated); Busler, 2009 WL 2998970, at *3 (common policy of not paying overtime warranted conditional certification despite distinctions in pay policies from location to location). To the extent that this and the other arguments of Papa John's regarding individualized inquiries and defenses go to the merits of Plaintiff's claims, they are premature. See Wass, No. 09-2254JWL, slip op. at 12 (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)) (stating that arguments going to the merits of plaintiffs' claims should not be resolved on motion for conditional class certification); McKinzie v. Westlake Hardware, Inc., No. 09-0796-CV-W-FJG, 2010 WL 2426310, at *4 (W.D. Mo. June 11, 2010) (stating that individual defenses should be considered at a later stage, not in a motion for conditional certification of a class).

Papa John's argues that because Plaintiff and the putative class members do not know the actual effective rate of pay they received, and cannot provide definite information as to the automobile expenses they actually incurred, their allegations that they were paid less than minimum wage fail to meet the threshold of substantiality necessary for conditional certification. This argument is without merit. See, e.g., Wass, No. 09CV2254 JWL, slip op. at 12; Bass v. PJCOMN, No. 09CV01614 REB, slip op. at 4. Although they may not have determined their effective rates of pay, Plaintiff and the putative class members could nonetheless reliably state that their out-of-pocket automobile expenses were not covered by the reimbursements. Whether a particular plaintiff actually received less than the required minimum wage is a factual question which goes to the merits of the collective action claim, and will be addressed at a later stage of the litigation. See, e.g., Wass, No. 09-2254 JWL, slip op. at 12 (noting the fact that drivers did not know their actual costs may serve as evidence to rebut Plaintiffs' claims later in suit, but will not defeat conditional certification); Greenwald v. Phillips Home Furnishings, Inc., No. 4:08CV1128 CDP, 2009 WL 259744, at *6 (E.D. Mo. Feb. 3, 2009) (explaining that, in a § 216(b) action regarding overtime pay, whether the plaintiff actually worked more than 40 hours per week is a question which goes to the merits, not to the issue of conditional certification).

For purposes of this motion, none of the arguments Papa John's asserts preclude conditional certification of a collective action. As noted above, after discovery is complete, Papa John's may move to decertify the collective action. Whether or not application of the more rigorous second-step class certification standard will result in partial or complete decertification remains to be seen. At this stage of the proceedings, however, the Court will grant Plaintiff's motion and conditionally certify this suit as a collective action under Section 216 (b) of the FLSA. Specifically, the Court certifies a class[8] consisting of all delivery drivers employed by Papa John's at any time in the three years preceding the date of this Order.

Notice and Consent

One purpose of conditional certification is to facilitate the provision of notice to potential class members. Plaintiff has submitted a proposed notice and consent form [Doc. No. 101, Exhibit Nos. 37 & 38] and has requested that the notice be posted in the employee section of Papa John's restaurants. To facilitate the notification of potential opt-in plaintiffs, Plaintiff requests an order requiring Papa John's to provide Plaintiffs' counsel a readable electronic data file containing the names, dates of employment, restaurant store names and numbers, and last known mailing addresses of all potential class members.

Papa John's objects to certain portions of the proposed notice and seeks to revise it on several bases. In addition, Papa John's seeks to reduce to 60 days, the 90 day opt-in period Plaintiff requests, and asks that it be required to disclose only the last known addresses of potential class members. Papa John's has not fully briefed the issues related to the content and adequacy of the proposed notice provision,[9] but seeks the opportunity to further brief its position and also requests that the Court convene a "conference" of the parties to resolve these questions.

"[D]istrict courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989). In addition, ". . . trial court involvement in the notice process is inevitable in cases with numerous plaintiffs where written consent is required by statute. . . ." Id. at 171. Therefore, the Court will exercise its discretion to allow for an expedited briefing of the issues surrounding the adequacy and content of the proposed notice, the time period for opt-in, and the appropriate location for posting of the notice.[10]

Accordingly,

IT IS HEREBY ORDERED that Plaintiff's Motion for Conditional Collective Action Certification [Doc. No. 101] is GRANTED, and the Court conditionally certifies a class of all similarly situated present and former pizza delivery drivers employed by Defendants at any time during the three (3) years prior to the date of this Order.

IT IS FURTHER ORDERED that Defendants' motion for hearing [Doc. No. 124] is DENIED.

IT IS FURTHER ORDERED that Papa John's shall show cause, not later than September 20, 2011, why Plaintiff's proposed notice and consent provisions [Doc. No. 101, Exhibits 37 & 38] should not be approved by the Court for issuance in this collective action. Plaintiff shall file its response to the objections to the proposed notice and consent provisions on or before September 26, 2011.

IT IS FURTHER ORDERED that Papa John's shall take the steps necessary to make available by October 21, 2011 a readable electronic data file containing information including the names, restaurant store names and numbers, and last known mailing addresses of all potential class members.[11]

[1] Defendants filed a request for a consolidated hearing [Doc. No. 124] on the instant motion and on the previously filed motion to dismiss [Doc. No. 60]. The Court has determined that a hearing is unnecessary. The Court declined to hold a hearing with respect to the motion to dismiss as that motion involved essentially legal issues. Although the motion for conditional class certification raises limited factual issues, they have been well documented by the parties in transcript excerpts and exhibits. Moreover, the Court is generally prohibited from making credibility determinations at this stage of the proceedings. See, e.g., Lukien v. Papa John's Pizza, LLC, No. 09CV00516 DWF, 2010 WL 2545875, at*2 (D.Minn. June 21, 2010) (court need not make credibility determinations or findings of fact with respect to contradictory evidence submitted by parties at conditional class certification stage).

[2] Since the filing of this case, numerous Papa John's employees have filed consents to join this action even though it has not yet been certified as a collective action. action.

[3] Other delivery drivers who have consented to join this action work or worked in these states.

[4] Count II of the complaint is brought as a claim for violation of the wage and hour laws of the States and as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, but the time for requesting Rule 23 class certification has not yet expired.

[5] Papa John's asserts that the "tip-credit" hourly rate adopted in 2009 vitiates Plaintiff's claim. However, Plaintiff has asserted a "colorable claim", as required at this stage of the proceedings, that use of the "tip-credit" does not cure the alleged minimum wage violation. [Doc. No. 54, p. 10 ¶ 40].

[6] During the same time period, the IRS mileage reimbursement rate ranged from $.044-0.58 per mile, and the average business mileage reimbursement rate established by "reputable companies that study the cost of owning and operating a motor vehicle and/or reasonable reimbursement rates," including the American Automobile Association, ranged between $0.45-0.55 per mile. [Doc. 54, at ¶ 21].

[7] A § 216(b) collective action differs from a class action brought under Rule 23 of the Federal Rules of Civil Procedure. Davis v. Novastar Mortg., Inc., 408 F. Supp. 2d 811, 814-15 (W.D. Mo. 2005). Under Rule 23, a putative class member must "opt-out" to avoid being bound by the judgment, as opposed to "opting in" under § 216(b). Id.; see also Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (noting that the § 216(b) "similarly situated" standard is considerably less stringent than Rule 23(b)(3) class action standard).

[8] Papa John's has not raised a specific challenge to Plaintiff's definition of the putative class.

[9] Papa John's only addressed the proposed notice in a footnote to the responsive brief. Defendants' Memorandum in Opposition to Plaintiffs' Motion for Conditional Collective Action Certification [Doc. No. 114, p.14 n.6]

[10] The Court notes that Plaintiff's proposed notice is presently, in form and content, similar to notice provisions approved with minor revisions in similar cases. See, e.g., Beasely, No. 4:09CV01748 CDP, slip op. at 9 (E.D. Mo. Oct. 6, 2010); Wass, No. 09-2254 JWL, slip op. at 12.

[11] Defendants need not disclose the additional personal information requested by Plaintiff for proposed class members unless the Court subsequently orders such disclosure.
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PostPosted: Fri Nov 11, 2011 8:48 pm
From here: http://dockets.justia.com/docket/missou ... 35/101594/

October 11, 2011 159 Court Opinion or Order MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants' objections (Doc. No. 149) to the Proposed Form of Notice and Consent to Join are GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that, on or before October 14, 20 11, Defendants shall provide Plaintiffs with a readable electronic data file containing the names, restaurant store names and numbers, and last known mailing addresses of all drivers employed by Defendants at any time in the three (3) years prior to September 14, 2011. IT IS FURTHER ORDERED that Plaintiffs shall, not later than October 24, 2011, send notice by first-class mail using the Notice, Consent to Join, and envelope inscription modified as ordered herein. IT IS FURTHER ORDERED that the sixty (60) day opt-in period approved herein shall commence on October 24, 2011, and expire on December 23, 2011. Signed by Honorable Audrey G. Fleissig on 10/11/2011. (NCL)
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PostPosted: Fri Nov 11, 2011 9:10 pm
From here: http://www.stuevesiegel.com/CM/CurrentC ... aJohns.asp

PAPA JOHN'S COLLECTIVE ACTION LAWSUIT

Papa John's Collective Action Lawsuit

OVERVIEW

Stueve Siegel Hanson LLP and Weinhaus & Potashnick have filed a lawsuit seeking unpaid wages and unreimbursed expenses on behalf of pizza delivery drivers against Papa John's International, Inc. The case is known as Perrin et al. v. Papa John's International, Inc. and was filed in the U.S. District Court for the Eastern District of Missouri.

UPDATE

On September 14, 2011, the Court conditionally certified the claims in the case as a Fair Labor Standards Act ("FLSA") collective action. On October 24, 2011, a Notice explaining the lawsuit and how workers can join will be sent to all current and former delivery drivers who were employed by Papa John's International, Inc. at any time from September 14, 2008 to September 14, 2011.

FAQs

The Notice of Collective Action Lawsuit contains detailed information that should answer any questions you may have. Click here to view a copy of the Notice.

Most importantly, you have a choice to make now:

• ASK TO BE INCLUDED. Join this lawsuit. Await the outcome. Give up certain rights. See page 1 of the Notice for more details. If you want to be included, you must sign and return the Consent to Join Form that is included with your Notice materials. If your signed Consent to Join Form is not postmarked by December 23, 2011, you may be prohibited from participating in any recovery obtained against Papa John's in the federal claims asserted in this lawsuit.

• DO NOTHING. Do not join this lawsuit. Get no benefits from it. Keep rights. See page 1 of the Notice for more details.

In addition, if you know of anyone who may be eligible but has not received the paperwork to join the lawsuit, please have them contact us by filling out the form below or calling us. There is strength in numbers, and it is critical that as many eligible individuals as possible join this litigation prior to the deadline of December 23, 2011.

Is there any money available now?

No money or benefits are available now because the Court has not decided whether Papa John's did anything wrong, and the two sides have not settled the case. There is no guarantee that money or benefits will ever be obtained. If they are, you will be notified of your entitlement to recovery and how to obtain it.

What if I am worried about retaliation?

Federal law prohibits Papa John's from terminating your employment, or in any other manner discriminating or retaliating against you, for taking part in this lawsuit.


Will I have to pay the lawyers and how will the lawyers be paid?

The lawyers are working on a contingency fee basis. You will not have to pay them anything. They will get paid only if they get money or benefits for the Class. If that occurs, they may ask the Court for their fees and expenses. If the Court grants Class Counsel's request, the fees and expenses would be either deducted from any money obtained for the Class or paid separately by Papa John's, or may be a combination of the two. Regardless of the outcome in this case, you will not be asked to pay any attorneys' fees, court costs, or expenses. Class Counsel will indemnify you against any such assessment, were that to occur.

Background of the Case

The lawsuit alleges that Papa John's International, Inc. violates federal (and state) wage and hour laws by failing to reimburse their pizza delivery drivers for their automobile expenses, resulting in the pizza delivery drivers being paid less than minimum wage. Specifically, the lawsuit alleges that the amount paid by the pizza company to pizza delivery drivers for automobile expenses are insufficient to reimburse them for the automobile costs incurred in delivering pizzas, including purchasing gasoline, vehicle parts and fluids, automobile and repair services, and automobile insurance, and suffering automobile depreciation.

Click here to view the Notice
http://www.stuevesiegel.com/CM/Investig ... ice_v1.pdf

Click here to view the Complaint
http://www.stuevesiegel.com/CM/Investig ... plaint.pdf

Click here to view the Order Granting Conditional Certification
http://www.stuevesiegel.com/CM/Investig ... cation.pdf


How can I obtain more details?

If you have additional questions about this lawsuit, or would like additional information, please contact us at 1-888-816-2097 or Mark Potashnick at 314-997-9150 ext. 2. For a faster response, email us using the form below. Be sure to include a detailed message explaining your question. We will be back in touch with you as soon as possible.
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PostPosted: Fri Jul 04, 2014 3:27 am
HOME > Cases > Papa John's Collective Action Lawsuit
Papa John's Collective Action Lawsuit

Stueve Siegel Hanson LLP and Weinhaus & Potashnick have filed a lawsuit seeking unpaid wages and unreimbursed expenses on behalf of pizza delivery drivers against Papa John's International, Inc. The case is known as Perrin et al. v. Papa John's International, Inc. and was filed in the U.S. District Court for the Eastern District of Missouri.
UPDATE: Stueve Siegel Hanson and Weinhaus & Potashnick succeed in obtaining class certification for drivers

On December 31, 2013, the Court certified five state-law classes under Federal Rule of Civil Procedure 23, making the case a class action that includes drivers who worked for Papa John’s in Missouri, Illinois, Arizona, Florida, and Maryland. Stueve Siegel Hanson and Weinhaus & Potashnick were appointed by the Court as lawyers for the drivers in these classes. Notice was mailed to affected drivers in each of the five states on April 30, 2014. Drivers who receive the notice or worked as a driver for Papa John’s (corporate-owned stores) in one of the five states during the applicable time periods do not need to take any action to remain in the class. By remaining in the class, drivers will be bound by the judgment (win or lose) and will be eligible to participate if there is ever a settlement (there is no settlement or money available now). If a driver wants to exclude himself or herself from the class (not be bound by the judgment and not be eligible to participate if there is a settlement), then the notice describes the steps and deadlines that the driver needs to observe. The case will proceed to trial, hopefully sometime in early 2015, as a class and representative action. Counsel is currently obtaining the evidence necessary to present the class’s claims to a jury.

Click here to view a copy of the notice sent to Missouri drivers.

Click here to view a copy of the notice sent to Illinois drivers.

Click here to view a copy of the notice sent to Arizona drivers.

Click here to view a copy of the notice sent to Florida drivers.

Click here to view a copy of the notice sent to Maryland drivers.
What if I already received a notice and returned a form to join the case?

Some drivers received an earlier notice several years ago entitled Collective Action Notice. That noticed related to claims under the “Fair Labor Standards Act,” a federal law that requires employers to pay minimum wage. If the driver timely returned the “Consent to Join” form that was enclosed with that notice, then he or she is a member of the federal class (called a “collective action”). The deadline to join the federal class, however, has since passed so only drivers who timely returned the form are members. Membership in the federal class and the new state-law classes is not mutually exclusive. A driver is still eligible to pursue remedies available under state law even if they are members of the federal class. By doing nothing in response to the new notice, drivers will remain in the state-law class if they meet the qualifications described in the notices linked to above. Membership in a state-law class is not required to remain a member of the federal class. If you are a member of the federal class, you should have access to the Stueve Siegel Hanson client portal for updates about the case.

Click here to view the Notice

Click here to view the Complaint

Click here to view the Order Granting Conditional Certification

Click here to download Adobe Reader

How can I obtain more details?

If you have additional questions about this lawsuit, or would like additional information, please contact us at 1-888-816-2097 or Mark Potashnick at 314-997-9150 ext. 2. For a faster response, email us using the form below. Be sure to include a detailed message explaining your question. We will be back in touch with you as soon as possible.
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PostPosted: Fri Jul 04, 2014 3:51 am
Sweet!! State Class actions is much better than just an opt-in federal collective action. That alone is a big win. I'm wondering if the cases will be tried concurrently in front of the same judge? Or separately in front of different judges.
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PostPosted: Thu Aug 20, 2015 3:18 am
Papa John’s to Settle Claims it Underpaid Delivery Drivers

http://kycir.org/2015/08/07/papa-johns-to-settle-claims-it-underpaid-delivery-drivers-in-six-states/

By: James McNair
August 7, 2015


Papa John’s International says it has agreed to pay $12.3 million to settle a class-action lawsuit accusing the company of underpaying mileage reimbursements to its pizza delivery drivers in six states.

The suit, filed in federal court in St. Louis in 2009, represents about 19,000 drivers in Missouri, Florida, Illinois, North Carolina, Arizona and Maryland. The court record notes that a settlement was agreed upon earlier this month.

Papa John’s disclosed in its second-quarter earnings announcement Tuesday that a preliminary out-of-court agreement had been reached.

Other than stating the settlement amount, the Louisville-based company did not say if it changed its driver compensation practices as part of the settlement. As it has all along, the pizza chain denied any wrongdoing.

But attorneys for former pizza driver William Perrin of St. Louis detailed a corrupt scheme in which drivers “kicked back” money to the company by receiving lower reimbursements for the use of their vehicles to deliver pizzas.

According to the complaint, drivers were typically paid between $1 and $1.50 per delivery, regardless of distance, rather than the 45 to 55 cents per mile rate recommended by AAA and the IRS. That scheme cost the drivers $1.50 to $5.33 per hour, giving them a net hourly pay ranging from $1.48 to $5.75, according to the lawsuit.

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(Read the lawsuit)

“The net effect of (Papa John’s) flawed reimbursement policy, instituted and approved by company managers, is that they willfully fail to pay the federal minimum wage to their delivery drivers,” the suit states. “Defendants thereby enjoy ill-gained profits at the expense of their employees.”

Phone calls to a Papa John’s spokeswoman and to the plaintiff’s attorneys were not returned Thursday.

The $12.3 million settlement took a large bite out of Papa John’s second-quarter earnings. After deducting for the expected settlement payment, its quarterly profit fell 36 percent to $10.8 million. The proposed settlement is subject to court approval.

Reporter James McNair can be reached at jmcnair@kycir.org or (502) 814-6543.
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